“History has shown that it is not good for a Democracy when the executive branch has sweeping surveillance powers.” –Andrew Crocker, EFF
Since 2002, over 40 cases have been brought against U.S. administrations concerning mass surveillance. Many have been brought by civil liberties groups like the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). Most cases have been dismissed, but legislation seems to be responding to concerns, even though the courts have not.
“We are working on this from more than one side,” said Andrew Crocker, a legal fellow at EFF, in an interview for IVN.
Tearing Holes in the Constitution
According to a timeline from EFF, the first spying order under the Bush administration was drafted in 2001 by David Addington, council to Vice President Dick Cheney.
In a declaration for EFF’s Jewel v. NSA case, former senior analyst at the NSA, J. Kirk Wiebe, said that after 9-11, “The individual liberties preserved in the U.S. Constitution were no longer a consideration [at the NSA].”
So far, three courts (Diggs, Leon, Illston) and the Presidential Civil Liberties and Oversight Board (PCLOB) have ruled that some of the NSA’s spying is unconstitutional. Many plaintiffs have filed for injunctions, declaratory relief, and damages.
Main concerns come from individuals, reporters, scholars, lawyers, and nonprofit organizations who have sensitive conversations with people outside of the U.S. They claim NSA spying programs have had a “chilling effect” on their rights to speak and associate freely.
Verizon and AT&T were also sued on privacy grounds for releasing customer information to the government. In 2008, those cases were dismissed with the passage of the FISA Amendment Act, which gave immunity to companies working with the NSA.
The individual liberties preserved in the U.S. Constitution were no longer a consideration (at the NSA).J. Kirk Wiebe, former NSA analyst
Citizens can file Freedom of Information Act requests to find out if they have been surveilled. However, the government often claims state secrecy, dismissing these cases, even if they have standing, to prevent revealing that people are — or are not — being surveilled. The government claims either admission is a threat to national security.
The government also consistently claims sovereign immunity, meaning one cannot sue the government, unless the government gives jurisdiction over itself. Government officials are also immune, unless the accused is working completely outside his or her job description.
The FISA Act of 1978 was meant to be the exclusive legal authority on spying to reign in the executive snooping of the 60s and 70s. The law only specifically waves state immunity for 3 sections of the law: 106(a), 305(a), 405(a). These sections address warrants, notification of surveillance, and use of information. Patrick Toomey of the ACLU says they have not sued under these sections.
“They are very narrowly defined,” he said.
In EFF’s case, Jewel v. NSA, the court reasoned that since the FISA Act specifically waved state immunity for 3 sections, lawmakers intended all other sections to have state immunity as well. Further, the court decided that the law intends injunctive or declaratory relief, outside of those three sections, to be barred.
The problem is that the laws seem to support the government’s activities. It is the legislation itself that has created loopholes for the government that threaten constitutional rights.
In 2013, the EFF was successful in a case against National Security Letters, the letters the government sent to companies demanding cooperation along with a gag order. In that case, Judge Susan Illston decided that National Security Letters were unconstitutional. However, she stayed the motion, pending the government’s appeal.
In the same year, Solicitor General Donald Verrilli Jr. found that the NSA was not informing defendants in criminal cases that they were being spied on. He demanded the government correct this, which in turn, finally allowed individuals to challenge the orders.
The EFF and ACLU joined cases involving alleged domestic terrorists to challenge the NSA, because “[e]veryone deserves due process, and to be innocent until proven guilty,” Toomey says. The government has returned with a state secrecy defense and other evasive defenses.
Looking to the Supreme Court
The Supreme Court has refused to look at several cases stemming from the Patriot Act: Hedges v. Obama, EPIC’s petition for a Writ of Mandamus, and a case brought by conservative activist Larry Klaymen.
District Judge Richard Leon, in Klaymen v. Obama, is the only judge to side with plaintiffs on Fourth Amendment grounds, agreeing with the plaintiffs that they have a reason to believe that they are being surveilled, and that the government does not have authority outside of FISA (1978) to spy on U.S. citizens.
However, in Smith v. Obama, a case following Leons’ decision, Judge B. Lynn Winmill dismissed plaintiff’s Fourth Amendment claim, although she referenced Leons decision, saying it “should serve as a template for a Supreme Court opinion. And it might yet.”
In the meantime, Crocker says “Obama could change the law with a stroke of his pen,” and the Patriot Act is up for re-authorization in June 2015.
Executive Order 12333 is another powerful authority by which the NSA peruses mass surveillance. The ACLU is currently seeking many documents about 12333 to determine if constitutional protections are in place.
The EFF and ACLU have filed hundreds of Freedom of Information Act requests for FISC decisions on the legality of section 215 of the Patriot Act, the FISA Amendment Act, and executive orders allowing surveillance outside of FISA.
The Freedom Act, which passed the House, but failed to pass the Senate in December 2014, addressed many concerns about mass surveillance. It failed by two votes. U.S. Sen. Rand Paul (R-Ky.), who has his own case against the NSA, voted against the legislation because it reauthorized The Patriot Act without necessary revisions. (See the roll call vote)
Other organizations who have moved legally against the NSA include: the Center for Constitutional Rights, Amnesty International, Electronic Protection Information Center (EPIC), the Council on American-Islamic Relations (CAIR), Greenpeace, the Association of Criminal Defense Lawyers, the Media Freedom Information Access (MFIA) Clinic at Yale Law School, and ProPublica.
The ACLU has over 500,000 members and a budget of over $100 million. The EFF has about 26,000 members and reported almost $10 million in funds in 2013. The voices of civil liberties groups and similarly concerned citizens seem to be having an effect on legislation.
Andrew Crocker, of the EFF, says citizens have the ability to pressure representatives for legislation that protects their rights. He believes we need stronger legislation, even stronger than the Freedom Act.
“People are not free if they can’t advocate for change or come together for social movements.” -Andrew Crocker, EFF