FISA Court Accused of Failing to Restrain NSA

Saturday, February 27, 2016
(graphic: ACLU)

By Adam Klasfeld, Courthouse News Service


(CN) - A Washington spy court's "secret, ex parte proceedings" do not provide the oversight required to restrain the National Security Agency's Upstream program, a privacy group argued in a court filing Thursday.


Brought to light by former NSA contractor Edward Snowden, the NSA program Upstream intercepts traffic from what has been called the "Internet's backbone," a phrase that refers to the major foreign and domestic Internet cables and switches.


Last year, the American Civil Liberties Union represented nine media and human rights group - led by the Wikimedia Foundation - in challenging the program for its "suspicionless seizure and searching of Internet traffic."


Joining the ACLU in the Maryland challenge were Human Rights Watch, Amnesty International USA, PEN American Center, National Association of Criminal Defense Lawyers, Global Fund for Women and The Nation magazine.


Throwing out the case that fall, however, U.S. District Judge T.S. Ellis, a Ronald Reagan nominee, found that the Foreign Intelligence Surveillance Court would be a more appropriate forum to resolve such constitutional questions.


The FISC, as the court is known for short, operates from an undisclosed room in Washington. Only government lawyers and a judge are permitted in the hushed proceedings.


Judge Ellis also found that Wikimedia lacked standing to sue under the precedent established in Clapper v. Amnesty International (pdf), in which the Supreme Court barred human-rights groups from challenging warrantless surveillance without establishing "actual knowledge of the government's ... targeting practice."


With Wikimedia appealing to the Fourth Circuit, privacy advocates at the Electronic Frontier Foundation (EFF) warned that upholding the decision would place "government mass surveillance programs outside the reach of judicial review."


In a friend-of-the-court brief, the EFF's lawyers argued that Judge Ellis ignored a "critical distinction" between the Amnesty case and Wikimedia's.


"Plaintiffs here plausibly allege actual incidents, both past and continuing, of government interception of their Internet communications," the 36-page brief states.


Based in San Francisco, Calif., the EFF has had much more success fighting a warrantless surveillance case against the NSA brought by AT&T customers Carolyn Jewel and Virginia Shubert.


Filed in 2008, the case turned a corner three years later when the Ninth Circuit ruled that Jewel established enough evidence of "concrete, particularized, actual, and non-conjectural injury in fact" to let their lawsuit proceed.


The EFF said that Wikimedia's case mirrors the one their clients filed.


"The Jewel plaintiffs alleged with specificity a program of 'dragnet' surveillance that 'indiscriminately acquired domestic communications as well as international and foreign communications,'" the brief states. "Plaintiffs also allege with specificity that 'the NSA is seizing Americans' communications en masse while they are in transit, and it is searching the contents of substantially all international text-based communications - and many domestic communications as well - for tens of thousands of search terms.'"


Contesting the notion that the FISC could safeguard the constitutional protections of U.S. citizens, the brief quotes the academic essay "No Longer a Neutral Magistrate," equating the court to "more of a rubber stamp on behalf of the government than a neutral check against executive overreach."


To Learn More:

Federal Judge Orders Justice Dept. to Turn over Secret FISA Court Documents (by Steve Straehley, AllGov)

Foreign Intelligence Surveillance Court Rejects Verizon’s Challenge to Constitutionality of NSA Collection of Call Records (by Steve Straehley, AllGov)

FISA Court Reveals Why It Allowed NSA to Log Americans’ Calls, Claims Telecoms Didn’t Protest (by Noel Brinkerhoff and Danny Biederman, AllGov)

Stung by Criticism, FISA Court Judges Ask to Make Public their Decisions (by Matt Bewig, AllGov)

Obama Assurance of Surveillance Oversight is undercut by FISA Court’s Chief Judge (by Noel Brinkerhoff, AllGov)

Foreign Intelligence Surveillance Court Sides with Challenge to Secrecy of Obama Surveillance Details (by Matt Bewig, AllGov)


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