Before Congress enacted the retroactive immunity provision of the FAA on July 9, 2008, the EFF believed that the most effective way to end the warrantless mass surveillance of Americans’ phone and email communications would be to sue the telecommunications providers who assisted the government. EFF, “NSA Spying on Americans: Jewel v. NSA.” However, since the retroactive immunity provision barred lawsuits against telecommunications providers, but not government agencies or officials, once the provision was passed, the EFF sued the government and named government officials in Jewel v. NSA,3:08-cv-04373 (N.D.Cal. filed Sept. 18, 2008).
On the basis of the same factual allegations about dragnet surveillance as in Hepting, the Jewel complaint alleged violations of the First and Fourth Amendments and separation of powers provisions of the Constitution, as well as of FISA and the Wiretap and Stored Communications Acts of the ECPA. The plaintiffs were a class of “ordinary Americans who are current or former subscribers to AT & T’s telephone and/or Internet services.” An injunction was sought against the continuing acquisition of their communications and records and for the destruction of the communications and records already seized. The plaintiffs also sued for statutory, actual, and punitive damages.
In 2011, the United States Court of Appeals for the Ninth Circuit reversed the district court’s dismissal of the complaint for lack of standing, and remanded the case to the district court to consider the government’s alternative argument that the case was foreclosed by the state secrets privilege. 673 F.3d 902.
In an Amended Order issued on July 23, 2013, the district court held that the doctrine of sovereign immunity barred the plaintiffs’ statutory claims for injunctive relief against the government defendants and their claims for damages under FISA, but did not bar their claims for damages under the Wiretap or Stored Communications Act. The court further held that neither the doctrine of sovereign immunity nor the state secrets privilege barred the plaintiffs’ Constitutional claims, reasoning that the common law doctrine of state secrets had been preempted by FISA’s provision for ex parte and in camera review of sensitive surveillance materials. 50 U.S.C. Sec. 1806(f). The Court required the parties to submit further briefing on whether 50 U.S.C. Sec. 1806(f) foreclosed the plaintiffs’ Constitutional claims or provided a mechanism for the action to proceed.
On December 20, 2013, the government submitted a brief that argued that before 50 U.S.C. Sec. 1806(f)’s procedure for ex parte, in camera review could apply, the plaintiffs would need to establish, without relying on any information in regard to which the government asserted a privilege, that they were “aggrieved persons” who had been subject to “electronic surveillance” within the meaning of FISA. The Government claimed that even though it was no longer asserting a privilege with regard to the existence of the surveillance programs at issue in the litigation, it continued to assert a “privilege over certain still-classified information concerning the scope and operational details of these intelligence activities, including but not limited to information that would tend to confirm or deny that particular persons were targets of or subject to NSA intelligence activities, or that particular telecommunications providers have assisted NSA in conducting intelligence activities.” On December 21, 2013, the Director of National Intelligence (“DNI”) posted the declarations filed by the Government in support of the brief and eight previously classified DNI and NSA declarations submitted over the course of the litigation.
On January 10, 2014, the plaintiffs submitted a brief that alleged that the Government’s affidavits had provided the Court with an “incomplete” picture, compared to what had become known on the basis of media reports and government officials’ statements in the wake of Snowden’s revelations, of the nature of the surveillance at issue in the case and its impact on national security. The plaintiffs further claimed that, contrary to the Court’s order, the government had not completed a declassification review of the declarations that it had previously filed under seal in the case.
On January 31, 2014, the plaintiffs responded to questions posed by the court by submitting a brief that argued that their suit should go forward, as the procedures for ex parte, in camera review in 50 U.S.C. 1806(f) could be used to decide their constitutional claims. The plaintiffs also contended that no threat to national security would be posed by a judicial determination of their standing to sue, as they were alleging mass, rather than targeted, surveillance. “Deciding plaintiffs’ claims will not reveal who the government is targeting or how it is targeting them, it will only determine the legality of the mass surveillance in which the government is concededly engaging – a question of pressing importance to millions of Americans. Plaintiffs’ lawsuit should go forward.” Br. at 3.
As described in our post, “Preserving metadata for civil litigation,” in 2014, there was litigation before both the FISC and the district court for the Northern District of California over whether, for purposes of discovery in Jewel and the Shubert and First Unitarian Church cases, the Government had an obligation to preserve metadata that it had collected under the telephony metadata program and retained for more than five years.
The EFF obtained a temporary restraining order from Judge White on March 10, 2014 in the Jewel and First Unitarian Church cases prohibiting the Government from destroying “any potential evidence relevant to the claims at issue in this action, including but not limited to prohibiting the destruction of any telephony metadata or ‘call detail records’ ….” At 2.
On June 5, 2014, the Jewel plaintiffs brought an emergency motion before Judge White, which the Shubert plaintiffs joined, for enforcement of the temporary restraining order. The plaintiffs alleged that they had learned that the government had been and was engaged in violating the order by destroying “evidence relating to the mass interception of Internet communications under Section 702 of the Foreign Intelligence Surveillance Act …[,] including evidence related to its use of ‘splitters’ to conduct bulk interceptions of communications from the Internet backbone network of AT&T.” At 1. Judge White responded on June 5 by stating that the restraining order remained in effect and ordering the government “not to destroy any evidence that may be relevant to the claims at issue in this action, including the Section 702 materials.” At an emergency hearing on June 6, however, Judge White rescinded his order, ruling from the bench that while the temporary restraining order remained in effect, the government would not be obligated to preserve data collected pursuant to Section 702 until he made a further ruling on the issue. The court requested further briefing from the parties.
On February 10, 2015, Judge White issued an Order granting summary judgment to the government against the plaintiffs’ claims that their Fourth Amendment rights were violated by the NSA’s upstream collection of their internet communications pursuant to Section 702. In dismissing this constitutional claim without a trial, the district court reasoned that the plaintiffs had not provided a sufficient factual basis to establish that as AT&T customers, they had standing in regard to upstream data collection. The Court acknowledged that if accurate, the declarations of Mark Klein and other former AT&T and NSA employees would establish standing by showing that “all AT&T customers’ Internet communications are currently the subject of a dragnet search and seizure program, controlled by or at the direction of the Government.” At 8. Relying on classified submissions by the government, however, the Court ruled that the plaintiffs’ contention about the “operational details of the Upstream collection is substantially inaccurate.” Id.
Using Catch 22-type reasoning, Judge White opined, in the alternative, that even if the plaintiffs’ evidence of standing were sufficiently probative to defeat summary judgment, the government’s classified submissions showed that “harmful disclosures of national security information” were crucial to its defense against the plaintiffs’ claims of standing and its defense on the merits. At 9. Hence, the state secrets privilege precluded any resolution in court of the plaintiffs’ Constitutional claims in regard to Section 702.
Avowedly, Judge White was “frustrated by the prospect of deciding the current motions without full public disclosure of the Court’s analysis and reasoning.” Nonetheless, he found that the secrecy was “a necessary by-product of the types of concerns raised by this case.” Id.
In a posting, EFF criticized Judge White’s Order of February 10, 2015 on the ground that in the Amended Order of July 23, 2013 (discussed above), the judge had correctly ruled that FISA’s provision for ex parte and in camera review of sensitive surveillance materials, 50 U.S.C. Sec. 1806(f), preempted the common law state secrets privilege. Hence, Judge White should not have relied on the state secrets privilege to grant the government summary judgment on the claim that the upstream collection of their data violated the plaintiffs’ Fourth Amendment rights.
On June 4, 2015, the EFF filed a Notice of Appeal to the United States Court of Appeals for the Ninth Circuit, and on June 23, 2015, despite the government’s opposition, the Ninth Circuit granted the EFF’s motion for an expedited briefing schedule, making the EFF’s opening brief due on August 4, the government’s brief due on September 3, and any reply brief by the EFF due on September 17. Notwithstanding the schedule, on July 24, the government filed a motion to dismiss the appeal on the ground that Judge White’s Order of February 10, 2015 did not constitute a final, appealable order. On July 27, the EFF filed its opposition to the motion. On August 12, the Ninth Circuit ordered that the panel deciding the merits of the appeal would also decide the government’s motion to dismiss the appeal for lack of jurisdiction. The Court postponed the due date for the government’s answering brief until September 21, and gave the EFF fourteen days from the date of submission of the answering brief to reply.
The court documents in this heavily litigated case are available at https://www.eff.org/cases/jewel.