After More Than a Decade, NSA vs Jewel Dismissed By Supreme Court for Being “Too Secret”

The EFF’s big court case, NSA vs. Jewel, has been dismissed by the US Supreme Court because the program is “too secret”.

Today, warrantless wiretapping is an all too familiar phrase for many. For a lot of people, everyone knows that the US government is listening in on their phone conversations and monitoring your Internet activity. In fact, one could easily go so far as to call it common knowledge these days. However, rewind all the way back to the year 2008 and the attitude towards such a practice was vastly different. In September of 2008, the Electronic Frontier Foundation (EFF) file a lawsuit against the George W Bush administration, the NSA, and numerous government officials over warrantless wiretapping.

Up to that point, the idea of government spying on your phone calls and Internet activity was more of a conspiracy theorist thing. It’s something that some suspected was happening, but there was no real solid evidence that this was going on. In fact, it was sometimes satirized in some comedy shows as well (The Simpsons being one example). For the most part, the idea that the government was spying on them in such a manner was often met with a bemused smirk and a “yeah, sure” comment.

Of course, a man named Mark Klein would change so much about the debate. Klein, of course, is the whistleblower that blew the lid off of the NSA spying program that had been apparently going on since 2003. Ensuing legal action would reveal the existence of Room 641A. This was the famous room where the main cable for all of AT&T’s Internet traffic was fed through. A splitter was then attached to that main cable and a copy of all that Internet activity was sent directly to spy agency, the NSA. The existing of such spying programs went from some conspiracy theoretical to a reality in the public conscious over the course of a couple of months.

At the time, I was just two years into my career working for ZeroPaid and this was quite explosive stuff to me. In the months since this lawsuit was announced, the debate shifted to other aspects such as whether or not such a spying program is constitutional and whether such a program was necessary or not. In fact, I distinctly remembering my writing colleague at the time questioning whether or not any of this was even a big deal. The government, for their part, defending the practice as a necessary program to prevent future terrorist attacks. There was even the long since debunked claim about how 911 happened because of a “missed phone call” (that “missed phone call” never actually happened).

As the court case dragged on, the Bush Administration panicked, knowing they had a problem on their hands. So, they passed the hugely controversial PATRIOT Act among other things to try and legalize the practice. Laws were passed to shield services like AT&T from litigation over such activities (ala “legal immunity”). The court case got tossed around the court system in the years since.

Ultimately, the NSA vs Jewel case became the EFF’s flagship lawsuit. The organization has long contended that warrantless wiretapping violates constitutional protections guarding against unlawful search and seizure. Many American’s were rooting for the EFF on this case because they felt that they have rights including the right to privacy. Cynics, of course, were there to say that American’s really don’t have much in the way of rights in the first place as constitutionally guarded rights have been eroding for years. It was always questionable whether that was a reason to just give up and relinquish what rights were still intact, though.

After several head scratching catch 22’s in the various rounds in the court, the lawsuit ultimately wound up in the US Supreme Court. The US Supreme Court has ultimately decided not to hear the case. The reason given is that the warrantless wiretapping, which the public knows significant details about now, is “too secret”. From the EFF:

We all deserve the right to have a private conversation online. That’s why EFF has taken on government surveillance for the past 30-plus years. One of our longest-running efforts has been to stop the National Security Agency’s (NSA) surveillance that sweeps up tens—if not hundreds—of millions of innocent people in its dragnet. Our work will continue.

But today the U.S. Supreme Court slammed the courthouse door on our flagship NSA surveillance lawsuit, Jewel v. NSA, effectively validating the government’s claims that something known and debated across the world—the NSA’s mass surveillance—is somehow too secret to be challenged in open court by ordinary members of the public whose communications were caught in the net.

The Supreme Court this week allowed our case to be dismissed because it’s a “secret” that the mass spying programs that everyone has known about since at least the Snowden documents came to light in 2013 (and disclosed in the national news long before that) involved the nation’s two largest telecommunications carriers. Yes, you read that right: something we all know is a still officially a “secret” and so cannot be the subject to litigation. Specifically, the Court refused to take on and reconsider a Ninth Circuit decision (and an underlying district court ruling) that held that the state secrets privilege blocked our clients’ efforts to prove that their data was intercepted such that they had standing to sue.

The central fact that these courts found to be “secret” is that AT&T and Verizon participated in the mass spying, even though we had submitted ample public evidence to support that finding. The Ninth Circuit decision was so cursory that the court didn’t even review the lower court’s sealed opinion addressing the government’s actual evidence of the spying, despite the fact that the District Court specifically required the government to present that evidence in secret.

It’s a bit of anti-climactic conclusion to such a long running case. The idea that you cannot litigate the government for violations of your constitutional rights because it is all “secret” is, well, stupid. What’s more is that it sets the precedent that the government can violate the constitution any way they like as long as their programs are “secret”. It’s a legal loop hole you could drive a semi truck through. Still, it really confirms what cynics about civil rights believe: that basic civil rights is really little more than something written down on apiece of paper and not actively practiced in the US these days.

Of course, this is not to say that the US government is legally continuing these dragnet programs these days. Indeed, in 2015, the notorious Section 215, which enables NSA spying in the first place, expired. To our knowledge, it hasn’t been renewed to this day. From the EFF at the time:

Section 215 has expired. At least for now.

The law that the NSA used to authorize its collection of vast amounts of information about the telephone calls of ordinary Americans is no more. Even though it’s likely temporary, it’s a good thing and we should pause to celebrate a little. The calls and emails Congress received from people across the country and across the political spectrum changed the debate.

The Senate let three provisions of the Patriot Act expire: Section 215, the section the government uses to collect phone and other business records in bulk, the “Lone Wolf provision,” and the “roving wiretap” provision. Section 215 now—at least temporarily—reverts to its pre-Patriot Act form, which doesn’t permit any collection of financial or communications records, and requires the Government to provide “specific and articulable facts” supporting a reason to believe that the target is an agent of a foreign power.

This is a good thing. And of course, the government still has plenty of tools to investigate national security cases.

So, unless there is some other secret government program that picked up where the previous NSA spying program left off that we aren’t aware of, bulk surveillance is not something that is actively done in the US these days. In theory, the legal section of the PATRIOT Act could be renewed at a later time. Fortunately, the US government seems to be more pre-occupied by other issues such as Putin’s war on Ukraine, gas prices, mass shootings, supply chain issues, forthcoming midterm elections, inflation, and the overturning of Roe v Wade to name a few hot button topics these days. That doesn’t necessarily leave a lot of political space to try and revive bulk surveillance.

Still, the court loss is quite disappointing for anyone who values privacy. What’s more is that this loss paves the way for the government to be legally able to restart these programs at some point in the future. It’s really just a matter of whether or not they’d get around to doing it. Here’s hoping they never do, though that does seem like wishful thinking.

Drew Wilson on Twitter: @icecube85 and Facebook.

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