Security Trumps Search Worries in NSA Case

     OAKLAND (CN) – A federal judge ruled in favor of the NSA in a case that accuses the agency of illegally searching and seizing Americans’ Internet communications, finding that further litigation would expose state secrets vital to national security.
     Lead plaintiff Carolyn 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) represented Jewel in the action.
     In an order issued Tuesday, 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.
     In a statement on its website, EFF called the ruling “disappointing.”
     “Today’s ruling was not a declaration that NSA spying is legal,” EFF said. “The judge decided instead that ‘state secrets’ prevented him from ruling whether the program is constitutional. It would be a travesty of justice if our clients are denied their day in court over the ‘secrecy’ of a program that has been front-page news for nearly a decade.”
     EFF said it is considering its next steps in the case.
     
     Contact Arvin Temkar at sanfran@courthousenews.com.

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