NSA and Electronic Frontier Foundation to square off in court over internet surveillance

© Reuters/Kai Pfaffenbach

A digital rights group in the United States plans to argue in federal court this week that the National Security Agency's internet surveillance operations violate the US Constitution's ban against unlawful searches and seizures.

Six years after the Electronic Frontier Foundation brought suit against the NSA on behalf of a former AT&T customer, Carolyn Jewel, US District Court Judge Jeffrey White for the Northern District of California will hear an EFF attorney argue on Friday for summary judgment and attest that the intelligence agency's data collection methods breach the Constitution's Fourth Amendment clauses intended to protect private information.

Filed back in 2008, the EFF's fight against the NSA long predates the public's awareness of Edward Snowden, the former intelligence contractor who leaked classified documents about the agency's surveillance operations in 2013 and has since been charged with espionage and theft by the US Department of Justice. The disclosures attributed to Snowden and subsequent admissions from the intelligence community have in the past year provided the EFF and others with ample fodder to plead their cases against the government, however, and on Friday, Judge White is expected to be told by the group that the operations of the NSA as they're known today are unconstitutional.

In the EFF's original 2008 complaint against AT&T, the California-based legal group alleged that the major telecommunication provider has since 2003 participated in a program with the NSA that allowed the government to receive huge swaths of communications sent over the telecom's network under the guise of national security.

"The NSA in cooperation with AT&T has installed and is operating a nationwide system of Surveillance Configurations in AT&T facilities across the country," the EFF said, citing earlier, unauthorized but pre-Snowden disclosures. "This network of Surveillance Configurations indiscriminately acquires domestic communications as well as international and foreign communications," the complaint continued, amounting to dragnet collection of communication records from AT&T databases undertaken by the NSA.

In July of this year, the EFF filed a motion for summary judgment in which its attorneys asked to rule AT&T's now decade-old activities as a violation of the Fourth Amendment because those operations are, according to the plaintiffs, absence probable cause and "fail to keep the government within constitutional bounds." Attorney Richard Wiebe, a special counsel for the EFF, plans on putting forth those arguments against a government attorney at Friday's hearing.

"Under the government's legal theory, it can copy virtually all Internet communications and then search them from top to bottom for specific 'identifiers' - all without a warrant or individualized suspicion - as long as it does so quickly using only automated processes," the EFF said in a statement on Tuesday this week. "Wiebe will argue before the court that the Fourth Amendment definitively bars this type of dragnet. As EFF presented in its motion, enough information now exists on the record for the court to rule that the government's technique represents an unconstitutional search and seizure."

According to the July motion filed by the EFF, the NSA's reach of electronic communications, such as with AT&T, constitutes "a technological surveillance system that makes it impossible for ordinary Americans not suspected of any wrongdoing to engage in a fully private online conversation, to privately read online or to privately access any online service."

"Millions of innocent Americans have their communications seized and searched as part of this dragnet even when the government is not targeting them or those with whom they communicate," EFF's attorneys wrote, adding that scooping up such communications constitutes two separate Fourth Amendment violations.

"First, the government unconstitutionally seizes plaintiffs' Internet communications. Technology at plaintiffs' Internet service provider, AT&T, automatically creates and delivers to the government a copy of plaintiffs' online activities, along with those of millions of other innocent Americans - including email, live chat, reading and interacting with websites, Internet searching, and social networking," the EFF wrote. "Second, the government unconstitutionally searches the content of much of the communications stream it has seized. The government admits that it searches the content of the online communications that it has seized if it believes there is some indication that the origin or destination of the communication is outside the United States."

"In truth, no valid warrant could authorize the government's admitted practices here. The government's targeting and minimization procedures are no substitute for the fundamental protections that the Constitution guarantees to all Americans. The ongoing dragnet seizure and search of innocent Americans' Internet activities violates the Fourth Amendment," the motion continues.

Since the first Snowden revelations appeared in June 2013, the Obama administration has been hit with an array of lawsuits concerning previously unconfirmed intelligence gathering operations, including the vacuuming of dialing records from phone companies and the dragnet surveillance of domestic data. The EFF notes that, with respect to internet surveillance, the "government claims the content searches are justified under Section 702 of the FISA Amendments Act and do not violate the Fourth Amendment."

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