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NSA and Surveillance Revisited:
The State Secret Question

by Jordan H. Barton | Fall 2019

The invocation of the state secret privilege has consistently been used by the National Security Agency (NSA) to avoid submitting evidence to lawsuits initiated by civil groups interested in challenging the constitutionality of their mass surveillance programs. However, as a staggering amount of the NSA’s mass surveillance programs are increasingly criticized for unconstitutional violations of privacy, it is time that the state secret privilege be fully scrutinized. In this essay, I attempt to highlight the legal background of past lawsuits and the arbitrary nature by which the State Secret Privilege was invoked to reverse them. From here, I argue that the changing precedent of state secret grounds based on the Ninth Circuit Court of Appeals’ reevaluation of Fazaga v. FBI in February 2019 is sufficient grounds for the Ninth Circuit Court to accept the Electronic Frontier Foundation’s (EFF) appeal to reopen Jewel v. NSA, finally enabling evaluation of the NSA’s mass surveillance techniques under the due process of law.

4. Harvard Law Review Association. “FEDERAL COURTS — STANDING — SIXTH CIRCUIT DENIES STANDING TO CHALLENGE TERRORIST SURVEILLANCE PROGRAM. .” Harvard Law Review 121, no. 3 (January 2008): 922–29. https://harvardlawreview.org/wp-content/uploads/pdfs/ACLU_v_NSA.pdf.

5. American Civil Liberties Union vs. National Security Agency, 6th Cir. Court of Appeals Opinion (2007), pp. 8-9, “due to the State Secrets Doctrine, the proof needed either to make or negate … is unavailable due to the State Secrets Doctrine … so] the state secrets doctrine thus deprives [the d]efendants of a valid defense to the [plaintiff]s’ claims”). This injury is not concrete or imminent under these circumstances, and this opinion focuses on the plaintiffs’ two other alleged injuries.”

8. See Wikimedia Foundation, et al. vs. National Security Agency, et al.

10. Jewel, et al. vs. National Security Agency, et al., U.S. District Court, Northern District of California, Preliminary Complaint (September 18, 2008) line 7-9, https://www.eff.org/files/filenode/jewel/jewel.complaint.pdf.

11. Jewel vs. NSA, U.S. District Court, Northern District of California, Judge Vaughn J. Walker Ruling (No C 08-cv-4373 VRW) pp. 2, line 25, https://www.eff.org/files/filenode/jewel/jeweldismissal12110.pdf.

13. Savage, Charlie, and David E. Sanger. “White House Tries to Prevent Judge From Ruling on Surveillance Efforts.” The New York Times. The New York Times, December 21, 2013. https://www.nytimes.com/2013/12/22/us/white-house-tries-to-prevent-judge-from-ruling-on-surveillance-efforts.html.

14. Fazaga vs. United States, No. 12-56867, Judge Berzon Opinion, February 28th, 2019), pp. 4-5, https://www.politico.com/f/?id=00000169-357a-d6dd-ad79-3dfa030d0001.

The question of whether mass domestic surveillance is an effective security measure or a violation of civil liberties is increasingly an issue in United States law due to the expansion of the National Security Agency’s (NSA) domestic surveillance techniques since 9/11.Today, the NSA continues to gather extensive metadata (including emails, text and audio messages, file transfers, etc.) to closely “track targeted individuals over time.”[1] However, this mass surveillance has not been met favorably by multiple civil rights groups, especially the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). Both agencies filed lawsuits against the NSA in 2007 and 2008, and both cases were dismissed on the basis that the grievances presented were insufficiently substantiated, and more conclusively, violated the protected status of the “state secrets privilege”[2]. The state secret privilege allows federal agencies to avoid lawsuits which they claim could reveal information critical to national security by refusing to submit relevant evidence, even when subpoenaed. However, here I would like to argue that, despite the NSA’s invocation of the state secrets privilege to uphold mass surveillance techniques, the day has come to allow for the pursuance of legal challenges that confront the unconstitutionality of the NSA’s data-gathering techniques. This can and should be pursued through the Ninth Court of Appeals ruling to reverse the dismissal of Jewel v. NSA, the EFF’s case, launching a formal inquiry into the unconstitutionality of the NSA’s data-gathering methods.

 

SECTION ONE: BACKGROUND ON LEGAL CHALLENGES

 

The first major lawsuit that attempted to confront the unconstitutionality of the NSA’s mass surveillance program was ACLU vs. NSA, specifically targeting the NSA’s Terrorist Surveillance Program (TSP) on account of its mass surveillance techniques of millions of Americans, many of whom who were not targeted by the NSA for risk factors.[3] This was an initial success for the ACLU, as the District Judge responsible for hearing the case, Anna Diggs Taylor, ruled that the TSP was unconstitutional and denied the invocation of state secret privilege requested by the NSA. Here, Taylor cited that the TSP program violated the “warrant requirement” prescribed in the Foreign Intelligence Surveillance Act (FISA) of 1978, which requires surveillance to have sufficient evidentiary reasoning to be conducted, because the NSA did not possess sufficient reason to survey millions of random American citizens. Because of this violation, Taylor ruled that the TSP potentially violated the 4th Amendment.[4] However, despite this judgment, which would have certainly brought the state secret privilege under scrutiny, in 2007 the Sixth Circuit Court of Appeals reversed the District Court decision on the basis that the ACLU had no evidence they had been personally victimized by the TSP’s surveillance program. Moreover, 6th Cir. not only dismissed the case, but ruled the state secrets privilege invocation in question was valid and thus protected the evidence in question.[5] In 2008, the ACLU submitted the case to the Supreme Court, but the Court refused to hear it based on the previous 6th Cir. judgment.[6] Despite a clear declaration that the TSP contained certain elements that were constitutionally ambiguous, the state secrets privilege was exercised to block further investigation. SCOTUS declined further consideration of the judgement without comment.

The relationship between the state secret privilege and the warrantless protection of the NSA’s surveillance techniques is elaborated with great concern here. Even when a court rules in favor of investigating the NSA’s domestic surveillance programs, the ability for the NSA to arbitrarily invoke the state secret protection shelters all available evidence for continued litigation. This raises the question of whether any effective legal action can be taken in such a seemingly unbalanced system. However, the question very well may have been answered: exerting effort across the board of social activism.

 

SECTION TWO: REIGNITION OF THE ACLU v. NSA DEBATE

 

Even if the controversial 6th Cir. opinion levied in 2007 caused ACLU v. NSA to escape federal courts, it has not escaped the court of public opinion. According to the ACLU, new documentation released in June of this year revealed that the NSA had, once again, improperly handled American public call records in October 2018.[7] In light of this, the ACLU has already opened new legal proceedings against the NSA, similar to their actions in 2006-2008.[8] Outside of the courts, too, the ACLU v. NSA ordeal has prompted legal scholars to defend the ACLU’s demand to increase public transparency into the NSA’s mass surveillance techniques. Paulina Perlin, a clerk with the 10th Cir. Court of Appeals, argues that such efforts “could reduce this opacity and help us understand the legal logic behind how the government uses its great discretion … thus help[ing] to mitigate any chilling effect by adding greater certainty to the realm of mass surveillance.”[9] Here, then, is an interesting opportunity for civil groups interested in pursuing legal challenges to the NSA’s domestic surveillance apparatus. Not only is there new evidence to be examined, but there is a growing consensus on the practical legal benefits of scrutinizing the NSA’s daunting surveillance networks, if even for the sake of increasing transparency in what is still a very closed system. However, the clearest indicator of a clear and present legal challenge to the NSA is that of Jewel vs. NSA.

 

Jewel vs. NSA is an ongoing case filed by associated plaintiffs of the Electronic Frontier Foundation (EFF), which charges the NSA for an “illegal and unconstitutional program of [criminal] communications surveillance.”[10] Originally dismissed in 2010 on “general grievance”[11] grounds - a non-specific complaint against a broad function of the government - the case was reinstated on December 29, 2011 by the Ninth Court of Appeals and was followed by an outpouring of support for the EFF.[12] However, despite these initial successes, in 2013 the NSA invoked state privilege to classify relevant documents and resist the action of the case.[13] This situation is incredulously similar to that of ACLU vs. NSA in the case’s 2007 dismissal, but hope is very much on the horizon.

The EFF, as of September 9th, 2019, is appealing to the Ninth Court of Appeals to have their dismissal reversed and the case reevaluated. This is due to a ruling issued in a 2019 rehearing of Fazaga v. FBI (2011), which redefines key components of the state secret privilege. According to the ruling issued in February of this year by the Ninth Court of Appeals, “some of the claims the district court dismissed on state secret grounds [in Fazaga vs. FBI] should not have been dismissed outright.”[14] The claims in question revolve around the legality of the FBI using religious-profiling methods to help classify criminals in surveillance databases, which the Court ruled may have been unconstitutional. However, this reveals a new precedent which can put Jewel back on the table. Because of this ruling, there is now question regarding the legal scope of criminal surveillance networks that federal agencies can employ. Thus, a revisitation to the courts can provide new answers in a now legally ambiguous defense. The EFF’s bid to have Jewel v. NSA reevaluated in the lens of such a precedent could aid in redefining how the state secret privilege operates in the context of domestic surveillance.This is especially true in the privilege's already controversial relationship with FISA, problematized in the ACLU v. NSA as it may demonstrate that the NSA’s mass domestic surveillance program is in violation of the 4th Amendment. This is one of the most hopeful situations for civil groups fighting against rampant domestic surveillance by the NSA. A change in precedent may open up an entirely new pathway for legal action which can bring long-desired outcomes of transparency and scrutiny to the NSA’s data-collection techniques. However, such an outcome can only occur if Jewel v. NSA is reopened.

 

SECTION THREE: IMPLICATIONS

In the reversal of the dismissal of Jewel v. NSA, the Ninth Circuit Court of Appeals can demonstrate their commitment to due process and fair adjudication of precedent. More so than this, a decision to reopen the case will allow the American people to have a leg to stand on in protecting their data. New legal precedent which determines that the NSA cannot arbitrarily invoke state secret privilege to protect evidence regarding mass domestic surveillance without reasonable risk to national security will result in a barrage of new lawsuits filed against the NSA. Beyond this, with increasing controversy regarding the NSA’s use of proper, ethical surveillance techniques, especially phone-tapping,[15] it is time that they face their day in court to defend mass domestic surveillance. Thus, the Ninth Circuit of Appeals should approve the appeal from the plaintiffs of the EFF in Jewel v. NSA, and reject the non-compliant invocation of the state secret privilege pursued by the NSA due to precedent suggested in Fazaga v. FBI. It is time to bring the NSA to court to finally have their unconstitutional data-collecting methods be vulnerable to public transparency and potential eradication.

 

REFERENCES

[1] National Security Agency; Domestic Surveillance Directorate. “Surveillance Techniques: How Your Data Becomes Our Data.” Domestic Surveillance Techniques - Our Data Collection Program. National Security Agency. Accessed October 20, 2019. https://nsa.gov1.info/surveillance/.

[2] American Civil Liberties Union vs. National Security Agency, “Plaintiff's Motion for Partial Summary Judgment,” United States District Court, Eastern District of Michigan, Southern Division (2006), pp. 6-7

[3] American Civil Liberties Union. “Fact Sheet: Legal Claims in ACLU v. National Security Agency.” American Civil Liberties Union. Accessed October 21, 2019. https://www.aclu.org/other/fact-sheet-legal-claims-aclu-v-national-security-agency.

[4] Harvard Law Review Association. “FEDERAL COURTS — STANDING — SIXTH CIRCUIT DENIES STANDING TO CHALLENGE TERRORIST SURVEILLANCE PROGRAM. .” Harvard Law Review 121, no. 3 (January 2008): 922–29. https://harvardlawreview.org/wp-content/uploads/pdfs/ACLU_v_NSA.pdf.

[5] American Civil Liberties Union vs. National Security Agency, 6th Cir. Court of Appeals Opinion (2007), pp. 8-9, “due to the State Secrets Doctrine, the proof needed either to make or negate … is unavailable due to the State Secrets Doctrine … so] the state secrets doctrine thus deprives [the d]efendants of a valid defense to the [plaintiff]s’ claims”). This injury is not concrete or imminent under these circumstances, and this opinion focuses on the plaintiffs’ two other alleged injuries.”

[6] American Civil Liberties Union. “ACLU v. NSA - Challenge to Warrantless Wiretapping.” American Civil Liberties Union, 2014. https://www.aclu.org/cases/aclu-v-nsa-challenge-warrantless-wiretapping#targetText=Circuit%20Court%20of%20Appeals%20dismissed,been%20wiretapped%20by%20the%20NSA.&targetText=The%20Court%20declined%20the%20case%20in%20February%202008.

[7] American Civil Liberties Union. “New Documents Reveal NSA Improperly Collected Americans' Call Records Yet Again.” American Civil Liberties Union | New York, NY, June 26, 2019. https://www.aclu.org/press-releases/new-documents-reveal-nsa-improperly-collected-americans-call-records-yet-again

[8] See Wikimedia Foundation, et al. vs. National Security Agency, et al.

[9] Perlin, Paulina. “ACLU v. NSA: How Greater Transparency Can Reduce the Chilling Effects of Mass Surveillance.” Media Freedom & Information Access Clinic. Yale Law School, December 6, 2017. https://law.yale.edu/mfia/case-disclosed/aclu-v-nsa-how-greater-transparency-can-reduce-chilling-effects-mass-surveillance

[10] Jewel, et al. vs. National Security Agency, et al., U.S. District Court, Northern District of California, Preliminary Complaint (September 18, 2008) line 7-9, https://www.eff.org/files/filenode/jewel/jewel.complaint.pdf

[11] Jewel vs. NSA, U.S. District Court, Northern District of California, Judge Vaughn J. Walker Ruling (No C 08-cv-4373 VRW) pp. 2, line 25, https://www.eff.org/files/filenode/jewel/jeweldismissal12110.pdf

[12] Greene, David. “Americans Deserve Their Day in Court About NSA Mass Surveillance Programs.” Electronic Frontier Foundation. Electronic Frontier Foundation, September 9, 2019. https://www.eff.org/deeplinks/2019/09/americans-deserve-their-day-court-about-legality-nsa-mass-surveillance-programs

[13] Savage, Charlie, and David E. Sanger. “White House Tries to Prevent Judge From Ruling on Surveillance Efforts.” The New York Times. The New York Times, December 21, 2013. https://www.nytimes.com/2013/12/22/us/white-house-tries-to-prevent-judge-from-ruling-on-surveillance-efforts.html

[14] Fazaga vs. United States, No. 12-56867, Judge Berzon Opinion, February 28th, 2019), pp. 4-5, https://www.politico.com/f/?id=00000169-357a-d6dd-ad79-3dfa030d0001

[15] See:

American Civil Liberties Union, “New Documents Reveal NSA Improperly Collected Americans' Call Records Yet Again.”;

Perlin “ACLU v. NSA: How Greater Transparency Can Reduce the Chilling Effects of Mass Surveillance.”;

Greene, ““Americans Deserve Their Day in Court About NSA Mass Surveillance Programs.”

1. National Security Agency; Domestic Surveillance Directorate. “Surveillance Techniques: How Your Data Becomes Our Data.” Domestic Surveillance Techniques - Our Data Collection Program. National Security Agency. Accessed October 20, 2019. https://nsa.gov1.info/surveillance/.

2. American Civil Liberties Union vs. National Security Agency, “Plaintiff's Motion for Partial Summary Judgment,” United States District Court, Eastern District of Michigan, Southern Division (2006), pp. 6-7.

3. American Civil Liberties Union. “Fact Sheet: Legal Claims in ACLU v. National Security Agency.” American Civil Liberties Union. Accessed October 21, 2019. https://www.aclu.org/other/fact-sheet-legal-claims-aclu-v-national-security-agency.

7. American Civil Liberties Union. “New Documents Reveal NSA Improperly Collected Americans' Call Records Yet Again.” American Civil Liberties Union | New York, NY, June 26, 2019. https://www.aclu.org/press-releases/new-documents-reveal-nsa-improperly-collected-americans-call-records-yet-again.

9. Perlin, Paulina. “ACLU v. NSA: How Greater Transparency Can Reduce the Chilling Effects of Mass Surveillance.” Media Freedom & Information Access Clinic. Yale Law School, December 6, 2017. https://law.yale.edu/mfia/case-disclosed/aclu-v-nsa-how-greater-transparency-can-reduce-chilling-effects-mass-surveillance.

12. Greene, David. “Americans Deserve Their Day in Court About NSA Mass Surveillance Programs.” Electronic Frontier Foundation. Electronic Frontier Foundation, September 9, 2019. https://www.eff.org/deeplinks/2019/09/americans-deserve-their-day-court-about-legality-nsa-mass-surveillance-programs.

15. See: American Civil Liberties Union, “New Documents Reveal NSA Improperly Collected Americans' Call Records Yet Again.”; Perlin “ACLU v. NSA: How Greater Transparency Can Reduce the Chilling Effects of Mass Surveillance.”; Greene, ““Americans Deserve Their Day in Court About NSA Mass Surveillance Programs.”