PASADENA, Calif. (CN) - In the face of Obama administration opposition, AT&T customers asked the Ninth Circuit on Wednesday to rule that a government mass surveillance program is unconstitutional.
Five people sued the National Security Agency seven years ago in Federal Court seeking a court order to dismantle a "digital dragnet" that allows the agency to tap into the fiber optic cables of U.S. telecommunications companies to intercept emails, text messages, phone records and other communications.
The plaintiffs are represented by Electronic Frontier Foundation in a class action that was filed in the Northern District of California.
A digital-rights watchdog, EFF has asserted that there is ample evidence of the mass collection of Americans' records through a program known as Domestic Internet Backbone Surveillance. The case has included evidence from whistleblower Mark Klein, a former AT&T technician who discovered that the telecommunications company was routing Internet traffic to a secret NSA room in San Francisco.
In February, U.S. District Judge Jeffrey White - a George W. Bush appointee - partially ruled in favor of the federal government on the claim that the warrantless spying of Americans who are not under suspicion is unlawful under the Fourth Amendment of the Constitution.
At an afternoon hearing at the Richard H. Chambers Courthouse, Justice Department attorney Henry Whitaker argued that the appeal was premature because White has yet to issue a final judgment on the remaining claims.
"What the district court adjudicated is but a tiny slither of a massive case, of a massive sprawling challenge to multiple aspects of the government's surveillance activities," Whitaker said.
Circuit Judge Margaret McKeown, a Bill Clinton appointee, said there had been a "fairly long and torturous path" for the case and asked Whitaker why "some of it shouldn't come to an end, or at least to a decision."
Whitaker said the appeal would only exacerbate the delays.
"What's going on in this case is that the plaintiffs are trying to have their cake and eat it," he said. "What they are trying to do is have an immediate appeal on this tiny slice of the case, while leaving all their district-court options open in the event they lose the appeal."
But EFF attorney Richard Wiebe urged the three-judge panel to find that the backbone surveillance program unconstitutionally searches and seizes communications.
"The government has been conducting its mass Internet surveillance for the past 14 years. If we're correct, that's an ongoing Fourth Amendment violation that every day causes continuing harm not just to the plaintiffs but to millions of other Americans. We've been seeking a ruling on this claim since 2008 when we filed the complaint. In all that time, the harm has continued," Wiebe said.
Circuit Judge Susan Graber, also a Clinton appointee, was concerned the appeal would be intertwined with other claims in the underlying litigation.
"That causes me to wonder why it is appropriate to adjudicate what is really a piece of a defense to a whole bunch of related things," she said.
Wiebe argued that if the Fourth Amendment claim came back to the Ninth Circuit on appeal it would be in the "same posture, with the same evidence as now."
"Nothing would have been gained by that delay in terms of deciding the Fourth Amendment claim," he said.
Circuit Judge Michael Daly Hawkins - yet another Clinton appointee - joined McKeown and Graber on the panel.
In addition to the National Security Agency, the lawsuit titled Jewel v. NSA also names the Department of Justice, President George W. Bush, Vice President Dick Cheney and other high-ranking officials.
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