May 7, 2015
NEW YORK – In a landmark decision, a federal appeals court unanimously ruled today that the NSA's phone-records surveillance program is unlawful.
The Second Circuit Court of Appeals held that the statute the government is relying on to justify the bulk collection of phone records – Section 215 of the Patriot Act – does not permit the gathering of Americans' sensitive information on such a massive scale. The case was filed by the American Civil Liberties Union and the New York Civil Liberties Union in June 2013, immediately after NSA whistleblower Edward Snowden disclosed the existence of the program.
"The current reform proposals from Congress look anemic in light of the serious issues raised by the Second Circuit," said Anthony D. Romero, executive director of the ACLU. "Congress needs to up its reform game if it's going to address the court's concerns."
The government had argued in the case, ACLU v. Clapper, that the court should not consider the lawfulness of the program at all, arguing that the ACLU lacked "standing" to challenge the surveillance and that Congress had "precluded" judicial review except by the Foreign Intelligence Surveillance Court, which meets in secret, rarely publishes its decisions, and generally hears argument only from the government. Today's decision rejects those arguments.
The ruling aligns with the lower court decision in a similar lawsuit in Washington, Klayman v. Obama, in which U.S. District Judge Richard J. Leon found the NSA program to be likely unconstitutional. The government's appeal of that case was argued on November 4. Another challenge to the phone-records program was argued before the Ninth Circuit Court of Appeals on December 4.
"This decision is a resounding victory for the rule of law," said ACLU Staff Attorney Alex Abdo, who argued the case before the three-judge panel in September. "For years, the government secretly spied on millions of innocent Americans based on a shockingly broad interpretation of its authority. The court rightly rejected the government's theory that it may stockpile information on all of us in case that information proves useful in the future. Mass surveillance does not make us any safer, and it is fundamentally incompatible with the privacy necessary in a free society."
The ACLU is a customer of Verizon Business Network Services, which, as revealed in The Guardian, received a secret order from the Foreign Intelligence Surveillance Court compelling the company to turn over "on an ongoing daily basis" phone call details such as whom calls are placed to and from, and when those calls are made. The lawsuit argued that the government's blanket seizure of the ACLU's phone records compromises the organization's ability to carry out its work and to engage in legitimate communications with clients, journalists, advocacy partners, whistleblowers, and others.
"This ruling focuses on the phone-records program, but it has far broader significance, because the same defective legal theory that underlies this program underlies many of the government's other mass-surveillance programs," said Jameel Jaffer, ACLU deputy legal director and lead counsel in the case. "The ruling warrants a reconsideration of all of those programs, and it underscores once again the need for truly systemic reform."
The court wrote in its opinion, "If the government is correct, it could use Section 215 to collect and store in bulk any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records, and electronic communications (including e‐mail and social media information) relating to all Americans. Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans."
Attorneys on the case are Jaffer and Abdo along with Brett Max Kaufman and Patrick Toomey of the ACLU, and Arthur N. Eisenberg and Christopher T. Dunn of the NYCLU.
Wikimedia, Rutherford Institute, Amnesty Among 9 Plaintiffs
March 10, 2015
FOR IMMEDIATE RELEASE
BALTIMORE – The American Civil Liberties Union filed a major new lawsuit today on behalf of a broad group of organizations challenging the National Security Agency's mass interception and searching of Americans' international Internet communications, including emails, web-browsing content, and search-engine queries.
The plaintiffs are the Wikimedia Foundation, the conservative Rutherford Institute, The Nation magazine, Amnesty International USA, PEN American Center, Human Rights Watch, the National Association of Criminal Defense Lawyers, Global Fund for Women, and Washington Office on Latin America.
At issue is the NSA's "upstream" surveillance, which involves the NSA's tapping into the internet backbone inside the United States – the physical infrastructure that carries Americans' online communications with each other and with the rest of the world. The NSA conducts this spying under a law called the FISA Amendments Act of 2008, which allows the agency to target the communications of foreigners abroad.
In the course of its surveillance, the NSA copies and combs through vast amounts of Internet traffic, which it intercepts inside the United States with the help of major telecommunications companies. It searches that traffic for keywords called "selectors" that are associated with its targets. The surveillance involves the NSA's warrantless review of the emails and Internet activities of millions of ordinary Americans.
"This kind of dragnet surveillance constitutes a massive invasion of privacy, and it undermines the freedoms of expression and inquiry as well," said ACLU Staff Attorney Patrick Toomey. "Ordinary Americans shouldn't have to worry that the government is looking over their shoulders when they use the Internet."
The lawsuit, filed in federal court in Maryland where the NSA is headquartered, argues that the NSA is violating the plaintiffs' privacy rights under the Fourth Amendment and infringing on their First Amendment rights. The complaint also argues that upstream surveillance exceeds the authority granted by Congress under the FISA Amendments Act.
"By tapping the backbone of the Internet, the NSA is straining the backbone of democracy," said Lila Tretikov, executive director of the Wikimedia Foundation, which operates Wikipedia, one of the most visited websites in the world. "Wikipedia is founded on the freedoms of expression, inquiry, and information. By violating our users' privacy, the NSA is threatening the intellectual freedom that is a central to people's ability to create and understand knowledge."
The plaintiffs include human rights, legal, media, and information organizations whose work requires them to engage in sensitive communications with people outside the United States, such as colleagues, clients, journalists, and victims of human rights abuses. The lawsuit argues that upstream surveillance interferes with the groups' abilities to do their jobs by violating the confidentiality of their communications and by making it more difficult to obtain crucial information from contacts and sources who communicate with them, often at significant personal risk.
The lawsuit is in some ways a successor to a previous ACLU lawsuit challenging the NSA's warrantless wiretapping program, Clapper v. Amnesty. The Supreme Court dismissed that case in February 2013 in a 5-4 vote on the grounds that the plaintiffs could not prove that they had been spied on. Edward Snowden has said that the ruling contributed to his decision to expose certain aspects of the NSA's surveillance activities a few months later.
Among the Snowden disclosures were documents relating to upstream surveillance, which has since been confirmed by the government. Unlike the surveillance considered by the Supreme Court in Clapper, upstream surveillance is not limited to the communications of NSA targets. Instead, as we have since learned, the NSA is searching the content of nearly all text-based Internet traffic entering or leaving the country – as well as many domestic communications – looking for thousands of keywords such as email addresses or phone numbers.
One of the NSA documents revealed by Snowden included a slide that named Wikipedia, among other major websites, as a good surveillance target for monitoring what people do on the Internet.
The new case is Wikimedia v. NSA. The attorneys are Toomey, Jameel Jaffer, Alex Abdo, and Ashley Gorski from the ACLU; David Rocah and Deborah Jeon from the ACLU of Maryland; and Charles Sims, David Munkittrick, and John Browning from the law firm Proskauer Rose LLP.