Soul Searching After EFF Dealt Setback in US Surveillance Case

The Electronic Frontier Foundation (EFF) was dealt a setback in the famed surveillance case, Jewel vs. NSA.

It’s not often you get a chance to update a story that almost spans your entire more than decade long career, but here we are. For some observers, the Jewel vs. NSA case is something that they heard about, but know that it has been on-going. For others, the reaction might be, “the who vs the what now?” Let’s face it, these reactions are probably perfectly reasonable these days. After all, this is a court case that happened four American government administrations ago (counting the current Biden administration of course). So, yes, we are talking about something that happened during the George W. Bush administration.

The Jewel vs. NSA case is one of the earliest instances of the warrantless wiretapping debate (some people refer to it as dragnet surveillance). At the time, everyone was learning about the famed Room 641A at AT&T. As we know now, room 641A started operating in 2003. In short, the room contained the main cable that fed all Internet traffic going through AT&T. A splitter was then introduced and a copy of all that data was then copied. That copy was then fed directly to the NSA (National Security Agency). No warrant was ever filed for that data and the program was kept secret.

Now, all of this sounds quite nefarious and almost the subject of one of a million conspiracy theories out there. So, is this actually real? Well, yes. Three years later in 2006, AT&T technician, Mark Klein, blew the whistle and revealed the existence of this secret room deep within AT&T. At the time, the news was absolutely stunning. Many people had a really hard time wrapping their mind around the enormity of this revelation. Some Americans, of course, had a rough idea that the government was spying on their every day activities, but those mental images revolved around mostly just secret GPS trackers to their cars or hidden microphones buried inside floorboards (yes, that made an appearance on The Simpsons). Of course, there can very easily be a huge difference between a few flights of the imagination and the reality.

In response, the EFF took a key role in this debate and helped file a massive lawsuit against the George W. Bush administration. Among the key issues is whether the government was required to obtain a warrant for this huge spying program. Another question is, does this dragnet surveillance constitute an infringement of the constitutional amendment surrounding unreasonable search and seizure? The potential liability for the government and AT&T (who cooperated with this operation) was almost difficult to even imagine it was so huge.

Seeing things potentially spiralling out of control, the Bush administration quickly passed a law shielding AT&T from any legal liability as a result of this. The government pushed hard to keep as many details in those legal documents under wraps as possible. Still, the cat was basically out of the bag already. It became public knowledge that the government was trying to suck every bit of data it could get its hands on outside of the justice system.

Of course, at the time, there were so many unknowns. Is a program necessary in the first place? Is this program protecting American lives? Should this program move forward? In the early days of this whole case blowing up, people were quite divided. In fact, during my time at ZeroPaid, while I was writing about these huge revelations, my own news writing colleague at the time questioned why this was even a controversy in the first place. So much of the analysis at the time was simply flying off the seat of my pants. So much about it was just uncharted territory.

Today, we have that luxury of hindsight. We know now that the security benefits of that dragnet surveillance was dubious at best. We also know that it didn’t really protect America from terrorism. Further, we know that the government had a hard time really being able to process or use so much data. The emphasis was just collecting everything and figuring out the logistics of what to do with that data later. This knowledge simply didn’t exist back then. My gut instinct was that this is something that the program was something that should go down in flames. After all the skepticism and thinking that I was just going off the deep end into the realm of paranoia, my thinking wound up being one of countless instances of having uncanny accuracy.

These days, the warrantless wiretapping program is having problems getting renewals. The dragnet surveillance program often goes under the name Section 215 after the Section 215 of the PATRIOT Act. In 2019, the Trump administration expressed interest in renewing the program and making it a permanent fixture. Section 215 went on to expire last year. The arguments for keeping it going have been whittled down to almost nothing. The arguments for reforming or letting the section expire has grown substantially. Justifying Section 215 has grown to be a monumental task.

Yet, in all that light, it was still quite disappointing for digital rights advocates to see the news that the EFF was still dealt a setback in the original Jewel vs. NSA case. From the EFF:

With little explanation, the Ninth Circuit today affirmed the district court’s decision dismissing our landmark challenge to the US government’s mass communications surveillance, Jewel v. NSA. Needless to say, we are extremely disappointed. Today’s decision renders government mass surveillance programs essentially unreviewable by U.S. courts, since no individual will be able to prove with the certainty the Ninth Circuit required that they were particularly spied upon. This hurdle is insurmountable, especially when such programs are shrouded in secrecy, and the procedures for confronting that secrecy are disregarded by the courts.

Though we filed our our landmark Jewel v. NSA case in 2008, no court has yet ruled on the merits – whether the mass spying on the Internet and phone communications of millions of Americans violates U.S. constitutional and statutory law. Instead, despite the enormous amount of direct and circumstantial evidence showing our clients’ communications swept up by the NSA dragnet surveillance, along with those of millions of other Americans, the trial and appeals courts still found that the plaintiffs lacked legal “standing” to challenge the practices.

This fight has been long and hard. But we remain determined to ensure that the network we all increasingly rely on in our daily lives—for communicating with our families, working, participating in community and political activities, shopping, and browsing—is not also an instrument subjecting all of our actions to NSA mass surveillance. We are evaluating the options for moving the case forward so that Americans can indeed have their day in court.

At this stage, the options are running low in trying to move the case forward. Part of the case had a sort of catch-22 involved. That catch-22 was essentially that people suing had to prove that they were illegally spied on. To get such documents, they had to get them from the program or government itself. Requesting such documents would never be granted because that would supposedly violate the persons privacy. An argument that caused a few of the heads of journalists reporting on the case to explode.

At any rate, the hope is that a solution can be found to keep the case alive. After all, it’s been taken all the way to this stage, why give up now?

Drew Wilson on Twitter: @icecube85 and Facebook.

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