Judge Kills Lawsuit Over Mass Surveillance Programs

OAKLAND, Calif. (CN) — A federal judge ruled Thursday that the federal government can use its state secrets privilege to block litigation over its warrantless mass-surveillance programs.

The Department of Justice had argued that revealing whether classified evidence it gave the court proves that the government collected five named plaintiffs’ internet and phone data would in and of itself threaten national security.

In accepting that argument, U.S. District Judge Jeffery White ended more than a decade of litigation and refused to say whether that secret evidence confirmed that the government might have unlawfully spied on U.S. citizens.

“Here, the court cannot issue a judgment without exposing classified information,” White wrote in a 26-page ruling.

He issued a separate, sealed order addressing classified evidence submitted by the government.

In his public ruling, White deemed inadequate the evidence plaintiffs submitted to support claims that the National Security Agency violated the Wiretap Act and the Electronic Communications Privacy Act.

The public evidence included a 2003 document from a former AT&T technician detailing how the telecom giant routed internet traffic to a secret room at an AT&T facility in San Francisco controlled by the NSA.

But White found that the technician had “limited knowledge” about the purpose of that room and could “only speculate” about what occurred there.

“The underlying premise that AT&T worked in the capacity of an agent for defendants is without factual or substantive evidentiary support,” White ruled.

White found a declaration by another former AT&T technician and expert opinions based on the telecom workers’ observations also unavailing. He concluded those reports were “not based on sufficient facts or data.”

The judge refused to consider a letter the government accidentally disclosed to The New York Times in 2015, identifying AT&T, Verizon and Sprint as companies that gave the NSA access to customers’ phone records. Because the government inadvertently disclosed the document and disputes its authenticity, White said he could not rely on it.

White also declined to rely on a 2009 NSA inspector general’s draft report describing another mass-surveillance program. Although former NSA contractor and fugitive Edward Snowden vouched for its legitimacy in a sworn declaration, White refused to consider it because the government would not authenticate it.

The Electronic Frontier Foundation (EFF), a San Francisco-based privacy rights advocacy group, represents lead plaintiff Carolyn Jewel and four co-plaintiffs in the class action. The case was filed in 2008 before Snowden leaked a trove of classified records unveiling details about the NSA’s multiple warrantless spying programs in 2013.

EFF Executive Director Cindy Cohen said she and her clients are disappointed the case was dismissed based on the government’s state-secrecy arguments. She vowed to appeal.

“The American people deserve to know whether mass surveillance is legal and constitutional,” Cohen said in a statement Thursday. “Instead of proceeding to the legal merits of the government’s programs, the court deferred to the government’s state secrecy arguments. We look forward to seeking review in the Ninth Circuit.”

The Department of Justice did not immediately reply to emails seeking comment Thursday afternoon.

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