Kurt Opsahl, EFF: Challenge to NSA Warrantless Wiretapping Revived

January 10, 2012

The 9th U.S. Circuit Court of Appeals today blocked the government's attempt to bury the Electronic Frontier Foundation's (EFF's) lawsuit against the government's illegal mass surveillance program, returning Jewel v. NSA to the District Court for the next step.

The court found that Jewel had alleged sufficient specifics about the warrantless wiretapping program to proceed. Justices rejected the government's argument that the allegations about the well-known spying program and the evidence of the Folsom Street facility in San Francisco were too speculative.

"Since the dragnet spying program first came to light, we have been fighting for the chance to have a court determine whether it is legal," said EFF Legal Director Cindy Cohn. "Today, the Ninth Circuit has given us that chance, and we look forward to proving the program is an unconstitutional and illegal violation of the rights of millions of ordinary Americans."

Also today, the court upheld the dismissal of EFF's other case aimed at ending the illegal spying, Hepting v. AT&T, which was the first lawsuit against a telecom over its participation in the dragnet domestic wiretapping. The court found that the so-called "retroactive immunity" passed by Congress to stop telecommunications customers from suing the companies is constitutional, in part because the claims remained against the government in Jewel v. NSA.

"By passing the retroactive immunity for the telecoms' complicity in the warrantless wiretapping program, Congress abdicated its duty to the American people," said EFF Senior Staff Attorney Kurt Opsahl. "It is disappointing that today's decision endorsed the rights of telecommunications companies over those over their customers."

Today's decision comes nearly exactly six years after the first revelations of the warrantless wiretapping program were published in the New York Times on December 16, 2005. EFF will now move forward with the Jewel litigation in the Northern District of California federal court. The government is expected to raise the state secrets privilege as its next line of defense but this argument has already been rejected in other similar cases.