Too Early to Revive U.S. Surveillance Claim

     (CN) – The Ninth Circuit on Friday sidelined a challenge of the government’s Internet surveillance program, finding the issue premature to appeal.
     Carolyn Jewel is the lead plaintiff behind the federal complaint filed seven years ago in San Francisco, hoping to represent a class of AT&T customers accusing the National Security Agency of using the Terrorist Surveillance Program to eavesdrop on millions of phone calls in violation of the Fourth Amendment.
     Jewel has been fighting the case since 2008, long before former NSA contractor Edward Snowden exposed classified records documenting the agency’s surveillance.
     Among 17 allegations, the class claimed that the government could not spy without a warrant on the Internet activities of U.S. citizens whom it did not actually suspect of violating any federal law.
     This past February, White found that the plaintiffs lacked standing to bring a Fourth Amendment claim regarding Internet surveillance, and that the state-secrets privilege also barred this claim.
     White did not rule on the class’s other 16 claims, and allowed the class to appeal his decision.
     This past October at oral arguments in Pasadena, the Ninth Circuit focused on whether anything distinguishes the Fourth Amendment claim from the rest of their litigation.
     Siding with the government on Friday, a three-judge panel found that the appeal lacks jurisdiction.
     “Apart from the common and intersecting facts, the nature of the claims makes piecemeal certification inappropriate,” Judge M. Margaret McKeown wrote for the court.
     The class has Fourth Amendment phone records claims, as well, and tried to separate these from the Fourth Amendment claims focusing on the interception of Internet records.
     McKeown pointed out that all of the five named plaintiffs have Fourth Amendment claims related to their phone records, but that two of the five plaintiffs were not AT&T customers and did not claim that the government collected their Internet records.
     “Awaiting a decision on a single claim, which is not a linchpin claim either factually or legally, does not advance this result,” McKeown wrote. “In fact, the result of this appeal has been to bring the district court proceedings to a halt.”
     While McKeown sympathized with the interest in resolving the lengthy case, she said litigating just one portion of the case that is well intertwined with other claims would not expedite the matter.
     “We do not take sides in that debate, except to say that the parties’ and judicial resources would be better spent obtaining a final judgment on all of the claims, instead of detouring to the court of appeals for a piecemeal resolution of but one sliver of the case,” McKeown wrote.
     The Electronic Frontier Foundation, a nonprofit digital rights group representing the class, is disappointed in the court’s ruling, but looking forward to continuing litigation of the matter in Federal Court.
     “Despite all the procedural complication, it’s important to remember what this is really about: the NSA is tapping in to the fiber optic cables of America’s telecommunications companies,” executive director Cindy Cohn said in a statement. “That’s a digital dragnet that subjects millions of ordinary people to government spying on their online activities. A mountain of evidence from whistleblowers and the government itself confirms this. The government’s delay strategies haven’t dampened our resolve that this case is crucial to preserving our privacy and civil liberties.”

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