9th Circuit Allows Wiretap Suit Against NSA to Proceed

While the 9th Circuit upheld the consitittuionality of telecom immunity for warrantless wiretapping in one case today, in another case, it ruled a complaint against the NSA and Government officials for conducting "a communications dragnet of ordinary citizens" can proceed. The case is Jewell vs. NSA, and the opinion is here.

The complaint by plaintiff Carolyn Jewell and others (the case is a potential class action) alleges that the NSA attached surveillance devices to AT&T's network, diverting communications into "SG3 Secure Rooms" at AT&T facilities around the country, creating "an unprecedented suspicionless general search" throughout the AT&T network. The suit alleged the NSA and other government defendants performed or aided and abetted the scheme. (AT&T was not sued in the case.)

The district court had dismissed the case holding the plaintiffs didn't have standing to challenge the scheme, but the 9th Circuit disagreed and reversed. [More...]

Specifically, the court says the Complaint alleges:

[u]sing [a] shadow network of surveillance devices, Defendants have acquired and continue to acquire the content of a significant portion of phone calls, emails, instant messages, text messages, web communications and other communications, both international and domestic, of practically every American who uses the phone system or the Internet, including Plaintiffs and class members, in an unprecedented suspicionless general search through the nation’s communications network.

In finding Plaintiff Jewell has standing, the 9th Circuit finds she has "asserted a grievance that is both “concrete and particularized.”

In a similar vein, with respect to her constitutional claim, Jewel alleges a concrete claim of invasion of a personal constitutional right—the First Amendment right of association and the Fourth Amendment right to be free from unreasonable searches and seizures.

...Jewel’s allegations are highly specific and lay out concrete harms arising from the warrantless searches. Jewel described these actions as a “dragnet” and alleged that “[t]his network of Surveillance Configurations”—“the technical means used to receive the diverted communications”— “indiscriminately acquired domestic communications as well as international and foreign communications.”

...Specifically, Jewel alleged that “[t]hrough this network of Surveillance Configurations and/or other means, Defendants have acquired and continue to acquire the contents of domestic and international wire and/or electronic communications sent and/or received by Plaintiffs and class members.” In addition to capturing internet traffic, “Defendants and AT&T acquire all or most long-distance domestic and international phone calls to or from AT&T long distance customers, including both the content of those calls and dialing, routing, addressing and/or signaling information pertaining to those calls.”

Accepting Jewel’s allegations as true, she has pled more than the minimum “general factual allegations”...

The court distinguishes this case from the 6th Circuit case of the ACLU attorneys challenging the entire NSA program saying (1) this is a 12(b) motion to dismiss not a summary judgment motion and (2) in this case, the Plaintiff has alleged her communications were intercepted, while the ACLU attorneys could not make that showing.

The 9th Circuit also rejected the Government's argument that this is a political suit:

There is little doubt that Jewel challenges conduct that strikes at the heart of a major public controversy involving national security and surveillance. And we understand the government’s concern that national security issues require sensitivity. That being said,
although the claims arise from political conduct and in a context that has been highly politicized, they present straightforward
claims of statutory and constitutional rights, not political questions.

The Court says if Jewel prevails, both an injunction and damages are available remedies.

What now? The 9th Circuit remands to the District Court to determinethe government’s assertion that Jewell's claims are foreclosed by the state secrets privilege. Here is EFF's webpage on the case, with pleadings and analysis.

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    by diogenes on Thu Dec 29, 2011 at 07:56:56 PM EST
    Hopefully the Supreme Court will review this case.