USA Defends NSA Spying But Won’t Explain

     OAKLAND, Calif. (CN) – Even if there were evidence that a domestic spying program was unconstitutional, interference by the courts could cause “exceptionally grave damage” to national security, the government told a federal judge.
     Urging U.S. District Judge Jeffrey White to deny the plaintiffs partial summary judgment and instead rule for the government, the Monday filing from the Department of Justice says that the National Security Administration’s information-collecting techniques do not violate the Fourth Amendment.
     The filing comes in the case Jewel v. NSA, a high-profile domestic spying case filed in 2008 by the Electronic Frontier Foundation. It stems from a 2006 revelation by a former AT&T technician that the company was routing copies of emails, Web browsing data and other Internet information to a secret NSA-controlled location in San Francisco.
     In the July motion for partial summary judgment, the EFF said that the NSA seizes and searches Internet communications without a warrant, in violation of the Fourth Amendment.
     “Defendants are conducting an ongoing program of bulk, untargeted seizure of the Internet communications of millions of innocent Americans,” the motion says.
     Even though the NSA sometimes obtains orders from the Foreign Intelligence Surveillance Court, those orders “are simply not warrants,” the motion says.
     Such orders neither specify nor limit NSA searches, and the court does not look for probable cause or even a reasonable suspicion that the NSA will turn up any foreign intelligence information, the privacy advocates argue.
     But the government said Monday that the plaintiffs’ arguments “are not supported by evidence.”
     The expert declarations by an AT&T whistle-blower and a former Federal Communications Commission adviser “rest on hearsay and speculation about activities that allegedly occurred in 2002 and 2003,” the filing states. Those declarations do not prove anything about whether AT&T customers’ communications are being gathered now, the government added.
     Acknowledgment by the NSA that it has a method of collecting certain data also does not negate the classified status that shields the details of how that program – known as “Upstream” – works, the government said.
     Noting that it cannot disclose how the program works without “risking exceptionally grave damage to national security,” the government said that the state-secrets doctrine requires dismissal of the plaintiff’s claims.
     The plaintiffs have described Upstream as a program by which the government taps the fiber-optic cables of telecommunications companies and copies the stream of data, including everything from emails to video calls.
     The government allegedly has an “imprecise” system of weeding out domestic communication, while searching for, and only keeping, troublesome data.
     While the EFF argues that the process of seizing and searching all that data is unconstitutional, the government says that there is ultimately no harm being done to the plaintiffs.
     Because the plaintiffs are challenging communications that the NSA didn’t keep, there simply is no allegation that Upstream constitutes search and seizure, government attorneys say.
     “In plaintiffs’ own telling, those unretained communications are copied, scanned, and then destroyed all within a matter of milliseconds, and they are never seen by any human being,” the cross-motion says. “The process plaintiffs allege does not meaningfully interfere with plaintiffs’ possessory interests in their online communications…Thus, no Fourth Amendment seizure or search occurs as a matter of law.”
     White will hear EFF’s motion for summary judgment and the government’s cross-motion on Dec. 12.

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