Author: cindy

EFF today filed its appeal to the 9th Circuit Court of Appeals of the dismissal of Jewel v. NSA, the case EFF brought against the U.S. government and government officials on behalf of AT&T customers to stop the National Security Agency’s illegal, unconstitutional, and ongoing mass surveillance of their communications and communications records. The case arises from the still growing stacks of evidence confirming the surveillance, including the technical documents presented by former AT&T employee Mark Klein that describe the NSA’s secret mass wiretapping facility in San Francisco.

On January 21, 2010, the District Court dismissed the case based on the dangerous and incorrect theory that because so many people have been impacted by the widespread surveillance, no individual person has a “particularized injury.” This ruling is not only wrong — the NSA’s interception of your private emails with your doctor, spouse or child is an individual harm to you regardless of whether it also happened to other people too — but also extremely dangerous because it would have the courts blind themselves to massive violations of the law and the Constitution on the grounds that they impact too many people.

Despite disappointments from both the Obama Administration and now the Federal District Court, EFF will continue to fight to protect your privacy against the warrantless wiretapping in both the Jewel and the Hepting cases, each of which will next be argued before the 9th Circuit Court of Appeals.

On December 31, 2009, the Transportation Security Administration backed off on an ill-considered administrative subpoena it issued to trasportation industry blogger, Christopher Elliott. EFF assisted Mr. Elliott in responding to the subpoena.

The subpoena was hand-delivered to Mr. Elliott by a TSA representative on the evening of December 29, 2009. It sought all documents “concerning your receipt of TSA Security Directive 1544-09-06 dated December 25, 2009.” The much-criticized directive had been given to hundreds of employees of TSA and the airlines and described some of the passenger-related security measures put into place in the immediate aftermath of the unsuccessful attempted bombing of a Northwest Airlines flight on December 25, 2009. The directive expired on December 30, 2009. Mr. Elliott obtained it in the course of his coverage of the situation and had sought TSA comment before publishing. The subpoena demanded all documents by the close of business on December 31, 2009, just two days after the agent delivered it.

Mr. Elliott’s counsel Anthony Elia, assisted by EFF and others, responded to TSA by objecting to the subpoena both on the grounds that it did not provide a reasonable time for Mr. Elliott to respond and because it improperly sought to require a journalist to reveal his sources and materials. Upon receipt of the objection, TSA first granted an extension to Mr. Elliott, then withdrew the subpoena entirely.

TSA also withdrew a similar subpoena it had issued to blogger Steve Frischling, but reportedly not until after the agents improperly threatened Mr. Frischling’s job and pressured him into giving them his computer, which they then apparently damaged. The facts of what occurred to Mr. Fischling are deeply troubling.

TSA should have known better than to use its civil administrative subpoena power to try to force these reporters to divulge their sources. This incident reinforces the need for a federal reporter shield law that fully embraces the new era of blogs, tweets and other nontraditional journalism tools. Nonetheless, we’re pleased that cooler heads prevailed at TSA this time.

EFF filed an amicus brief in the Ninth Circuit’s en banc review of Mohamed v. Jeppesen, a case brought by the ACLU challenging the CIA’s extraordinary rendition program. A panel of the Ninth Circuit Court of Appeals had rejected the government’s argument that the case had to be dismissed at the outset due to the state secrets privilege. The panel decision is now being considered by a larger, en banc panel of the Court.

EFF notes that the government has made the same dangerous and overreaching state secrets arguments in the domestic warrantless wiretapping cases handled by EFF. The brief begins:

This case is another in a set of post-September 11, 2001 cases in which the Executive, having made new and tremendously broad assertions of its unilateral power, seeks to prevent the Judiciary from adjudicating the lawfulness of those new powers. To do so, the Executive skews the relevant caselaw on the state secrets privilege, attempts to rely on a case in which the privilege was not even the basis for the decision and claims that the court must blind itself to credible, admissible, nonsecret evidence because the Executive has determined that it cannot confirm or deny a particular fact. Adopting the government’s position would abdicate the Judiciary’s Article III responsibility to adjudicate the constitutional and statutory limits on Executive authority.

Oral argument is scheduled in the case in San Francisco on December 15, 2009. EFF has been urging Congress to reform the state secrets privilege.