The Center for Democracy & Technology, alongside New America’s Open Technology Institute, filed a brief in the Ninth Circuit Appellate Court case Jewel vs. NSA, with the help of Irell & Manella LLP.
The case raises the important question of whether mass surveillance by the United States government through the bulk interception of Internet communications and telephone records is lawful and constitutional. After 11 years of litigation, that question has yet to be answered.
In this case, the US government has claimed that a court determination as to whether the plaintiffs had standing would necessarily disclose information about its bulk interception practices that would pose a grave risk to U.S. national security. The district court’s acceptance of that argument is particularly difficult to understand given that it is hardly a secret that governments intercept communications traveling across fiber optic communication cables, in bulk, to support their signal intelligence programs.
Governments have acknowledged these programs. Many have gone further and have disclosed the methods used in bulk interception. This surveillance—including capabilities, consequences, and propriety—is openly and in detail discussed in Europe. CDT has recently issued a report that discusses government disclosures concerning bulk cable interception. Given these disclosures, it is hard to see why bulk interception needs to be treated so secretly in the United States that it cannot be challenged in court—especially given the in camera and ex parte FISA procedures that enable the district court to evaluate classified materials and issue classified rulings.
The U.S. Government cannot be allowed avoid scrutiny of its actions on a theory that a threshold ruling on standing poses unjustifiable risk of grave harm to national security. As the European examples indicate, discussion, debate, and even litigation regarding the legality of bulk interception is possible. This Court should reverse and instruct the District Court to rule on standing and proceed to the merits.