by Cindy Cohn and Karen Gullo, Electronic Frontier Foundation
The US government admits — and, of course, it’s common knowledge — that the NSA conducts mass, dragnet surveillance of hundreds of millions of Americans’ communications. It has done so via a series of different technical strategies and legal arguments for over 18 years. Yet the Justice Department insists that our legal fight against this spying is bound by a Catch-22: no one can sue unless the court first determines that they were certainly touched by the vast surveillance mechanisms of the NSA, but the court cannot decide whether any particular person’s email, web searches, social media or phone calls were touched by the surveillance unless the government admits it. Which, of course, it will not do.
At a federal court hearing last month in Oakland, California for our Jewel v. NSA case, we took on this circular argument. EFF Special Counsel Richard Wiebe reviewed the vast trove of direct and circumstantial evidence showing our clients’ communications likely swept up by the NSA dragnet surveillance — this establishes legal “standing.” The interception of communications was first revealed in 2006 by a whistleblower working for AT&T in San Francisco, Mark Klein. Klein demonstrated, with expert assistance, that AT&T tapped into the high-capacity fiber optic cables that carry Internet traffic and copied all of the data flowing through those cables for the NSA. A 2009 draft NSA Inspector General’s report confirms that telecom companies including AT&T gave the NSA access to customers’ communications. Justice Department officials and government agencies have acknowledged its existence going back a decade. Ex-NSA contractor and whistleblower Edward Snowden leaked documents describing the spying and authenticated a key document for the court when the government refused. And just this past year, an additional whistleblower and several other experts have submitted statements explaining that the surveillance program likely touched our clients’ communications.
We also noted that it’s not necessary to absolutely establish that our client’s communications were touched by the surveillance to prevent dismissal. We must only demonstrate that it is more likely than not that our clients’ communications were touched by the NSA’s three programs of telephone record collection, Internet metadata collection, and Internet backbone surveillance. Given the mountain of evidence that we have presented and the admitted scope of the program, there is almost no chance that our clients’ communications — like the communications of millions of innocent Americans—weren’t touched by the government’s programs.
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