NSA Faces Appeal|Over Internet Snooping

     OAKLAND, Calif. (CN) – A class of citizens on Thursday appealed a ruling in a case that accused the NSA of illegally searching and seizing Americans’ Internet communications.
     The ruling found further litigation would expose the state secrets vital to national security.
     Lead plaintiff Carolyn Jewel appealed that ruling and all other prior interlocutory findings on which the ruling and subsequent judgment were based to the Ninth Circuit Court of Appeals.
     Jewel filed the case seven years ago, claiming the government acquires AT&T customers’ email and other data using spy devices attached to the company’s network. Digital watchdog group Electronic Frontier Foundation (EFF) represents Jewel in the action.
     The appeal comes two days after Congress passed a bill to end bulk collection of the phone records of millions of American citizens and a little under a month after the Second Circuit Court of Appeals found the Patriot Act did not authorize the NSA to scoop up telephone metadata.
     In an order issued in February, U.S. District Judge Jeffrey White found that the plaintiffs did not establish legal standing to show that the government violated the Fourth Amendment, and that even if they had the claim would have to be dismissed in order to protect national security.
     White’s ruling is in response to a motion for partial summary judgment EFF filed in July 2014 and the government’s cross motion two months later. The ruling does not dismiss the case in its entirety.
     EFF attorneys argued that the government uses a surveillance program called “Upstream” to collect communications, and that some of the information obtained is domestic.
     The watchdog group relied particularly on information from Mark Klein, a former AT&T communications technician, who said AT&T was routing web data to a secret NSA-controlled location in San Francisco.
     In his ruling, White said that Klein’s information is not enough to prove EFF’s account of how “Upstream” works. Though the government has acknowledged the existence of such a program, the details remain classified.
     “Without disclosing any of the classified content of the [NSA’s] submissions, the court can confirm that the plaintiffs’ version of the significant operating details of the Upstream collection process is substantially inaccurate,” White said.
     And, White said, even if the plaintiffs’ had enough public evidence to show standing, the “adjudication of the standing issue could not proceed without risking exceptionally grave damage to national security.”
     White acknowledged the challenge of weighing government evidence that is not public.
     “The court is frustrated by the prospect of deciding the current motions without full public disclosure of the court’s reasoning and analysis. However, it is a necessary by-product of the types of concerns raised by this case,” the judge wrote. “The court is persuaded that its decision is correct both legally and factually and furthermore is required by the interests of national security.”
     White’s ruling on the Upstream claim doesn’t mean the case is over, however. Jewel’s original complaint also included other claims, including allegations of the illegal collection of telephone records.
     Andrew Crocker from the EFF told Courthouse News, “We’re appealing the district court’s ruling on our claim that the NSA’s Upstream surveillance program violates Americans’ constitutional rights by collecting their communications from the backbone of the Internet and searching through them. We think this is a matter of utmost importance for the Ninth Circuit to consider. It’s particularly important in light of the passage of the USA Freedom Act, which provides significant reforms to the NSA’s surveillance power, but does not specifically address the NSA’s Upstream program.”
     The NSA is represented by Anthony Coppolino, deputy branch director of the Justice Department’s civil division. The department declined comment “beyond our court filings,” DOJ spokeswoman Nicole Navas said.

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