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Privacy Advocates Battle DOJ in NSA Spying Case

OAKLAND, Calif. (CN) - The National Security Agency is illegally searching and seizing Americans' Internet communications, privacy advocates told a federal judge at a hearing on Friday.

At proceedings before U.S. District Judge Jeffrey White, the Electronic Frontier Foundation battled government attorneys for partial summary judgment in the class action domestic spying case Jewel v. NSA.

Lead plaintiff Carolyn Jewel filed the case six years ago, claiming the government acquires AT&T customers' email and other data using surveillance devices attached to the company's network. A federal judge dismissed the case in 2010 for lack of standing, but that decision was overturned by the 9th Circuit Court of Appeals in 2011.

EFF Attorney Richard Wiebe outlined the organization's claim that the NSA searches emails and other data from AT&T customers using a method called "Upstream," and argued that the alleged surveillance is unconstitutional.

Justice Department attorney James Gilligan countered that the plaintiffs don't have enough information about the NSA's classified spying techniques to make a valid case.

EFF moved for partial summary judgment in July, asking White to find that the government is violating the Fourth Amendment - though it did not seek a remedy for the alleged violation. The government made a cross motion in September, saying the plaintiffs have no standing and cannot establish it "without the risk of grave damage to national security."

The case showcases the challenge of litigating matters that engulf both individual liberties and national security. White said that he is being "very careful" in court not to disclose the classified material that's been submitted by the government.

The 2008 lawsuit stems from a revelation two years earlier by whistleblower Mark Klein, a former AT&T communications technician, who said the Internet service provider was routing web data to a secret NSA-controlled location in San Francisco.

According to the EFF, the government combs through this data through a process that violates citizens' rights. Upstream works in four stages, plaintiffs' attorneys say:

Stage 1: Communications are collected.

Stage 2: Communications are filtered to exclude domestic communications, but the filtering is imprecise and some domestic data leaks through.

Stage 3: Computers scan this data for troublesome and potentially terrorist-related material.

Stage 4: Flagged material is stored in a government database.

In court, Gilligan said the government doesn't contest that a program called Upstream does "acquire unintentionally a very small number of domestic communications." But there's no evidence that AT&T customers are victims in any alleged search and seizure, he said.

And if Upstream works the way plaintiffs say it does, information is scanned and destroyed in "milliseconds" by computers - not a search or seizure under the Fourth Amendment, he added.

Wiebe countered that citizens are constitutionally protected from governmental intrusion "and it doesn't matter if that intrusion happens by a machine or an employee."

The EFF attorney also said the government has not disputed any of the evidence plaintiffs put forward.

"They haven't said in the public record that they're not conducting the surveillance or that it doesn't involve AT&T, and I think that does matter," Wiebe said. "It is their burden under summary judgment to come forward with that evidence."

Arvin Temkar can be reached by email at [email protected].

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