NSA’s Legal Foes Deny|Risk to National Security

(CN) - Litigating the challenge to the U.S. government's domestic surveillance will not harm national security because the suit will not reveal any individual target of government spying - only whether the NSA spied on nontargeted citizens, opponents of the program told a federal judge.

"Deciding plaintiffs' claims will not reveal who the government is targeting or how it is targeting them, it will only determine the legality of the mass surveillance in which the government is concededly engaging - a question of pressing importance to millions of Americans," their brief states. "Plaintiffs' lawsuit should go forward."

Carolyn Jewel leads a class action challenge to the National Security Administration's Terrorist Surveillance Program, calling it an abuse of executive privilege that monitors law-abiding customers.

The class claims the NSA's implementation of the Terrorist Surveillance Program, signed into law after the Sept. 11, 2011, terrorist attacks, violates the Constitution and the Foreign Intelligence Surveillance Act (FISA).

It is represented by the Electronic Frontier Foundation, a digital privacy rights organization.

Although plaintiffs filed their complaint over five years ago, "to date, no defendant has answered the complaint, and the court has blocked any discovery," they say.

U.S. District Judge Jeffrey White barred the government this past July from using the state secrets defense to keep a lid on surveillance information.

"It is clear Congress intended for FISA to displace federal common law rules such as the state secrets privilege with regard to matters within FISA's purview," White wrote.

In a Friday brief, Jewel and the other plaintiffs addressed whether disclosure of NSA surveillance targets would endanger national security by signaling to terrorists whether their name were on the surveillance target list.

They claim the lawsuit is no threat to national security because it challenges only the bulk collection of records, not what the NSA does with that data.

"In an untargeted mass surveillance lawsuit like this one, a finding that the plaintiff has been subjected to untargeted mass surveillance does not 'signal to the [plaintiff] whether his name was on the list of surveillance targets,'" the brief states. "Untargeted mass surveillance sweeps up the guilty and the innocent equally and indiscriminately, and nothing about who the government has targeted for surveillance can be deduced from the fact of untargeted mass surveillance. Only later does the government filter and search the bulk information it has collected in untargeted mass surveillance for specific information relating to the particular individuals and entities it has targeted for surveillance, but this later stage is irrelevant to plaintiffs' claims and will not be revealed by litigating plaintiffs' claims."

Echoing an earlier brief , the class pointed out that the government has already admitted it collects telephone records in bulk from providers, and collected bulk internet metadata from 2001 to 2011. These admissions have not revealed to any individual whether they are a target of surveillance or not.

"Plaintiffs' claims do not require them to prove who the targets of the surveillance were, what keywords or selectors the government may have used later to search the information it unlawfully gathered, or what if anything the government did with the data after the mass collection occurred," the new brief states.

Indeed, given the "flood tide of public evidence" that erupted from former NSA contractor Edward Snowden's disclosures in June, "this lawsuit may well be able to proceed to judgment without any disclosure of secret national security evidence by the government," the brief says.

If the lawsuit does touch upon sensitive material in discovery, FISA "provides a secure procedure by which the court decides 'the legality of the surveillance' when that determination depends on evidence whose disclosure 'would harm' national security," the class says.

But given that the government has not even answered plaintiffs' complaint, it remains to be seen whether this secure procedure will be necessary - especially as the mass surveillance activities challenged in his lawsuit have already been disclosed to the public.

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