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Automated Mass Surveillance is Unconstitutional, EFF Explains in Jewel v. NSA
Today EFF filed our latest brief in Jewel v. NSA, our longstanding case on behalf of AT&T customers aimed at ending the NSA’s dragnet surveillance of millions of ordinary Americans’ communications. The brief specifically argues that the Fourth Amendment is violated when the government taps into the Internet backbone at places like the AT&T facility on Folsom Street in San Francisco.
As it happens, the filing coincides with the theatrical release of Laura Poitras’ new documentary, Citizenfour. The Jewel complaint was filed in 2008, and there’s a scene early in the film that shows the long road that case has taken. In footage shot in 2011, the United States Court of Appeals for the Ninth Circuit hears argument in Jewel, and an attorney from the Department of Justice tries to convince a skeptical court that it should simply decide not to decide the case, leaving it to the other branches of government.
But the court did not agree to step aside. EFF prevailed on the issue, and the case continued, albeit very slowly. Now, years later, Poitras’ film underscores just how much the conversation around mass surveillance has changed. Americans are overwhelmingly concerned with government monitoring of their communications, and we hope to (finally) have a constitutional ruling in Jewel soon. (And another in Smith v. Obama, and still another in First Unitarian Church of Los Angeles v. NSA.)
Even so, the government continues to try to avoid a decision that any of its various means of mass surveillance is unconstitutional. The current procedural context is this: in July, EFF filed a partial motion for summary judgment requesting that the court rely on uncontested evidence that the NSA taps into the Internet backbone and collects and searches ordinary Americans’ communication to rule that the government is violating the Fourth Amendment. The technology at issue, which the government calls “upstream,” is illustrated here.
Under this surveillance, the government makes a full copy of everything that travels through key Internet backbone locations, like AT&T’s peering links. The government says that it then does some rudimentary filtering and searches through the filtered copies, looking for specific “selectors,” like email addresses.
The government filed its opposition to our motion in September. In our reply, we note that the government is effectively trying to sidestep the Fourth Amendment for everything that travels over the Internet. We explain:
As it happens, the filing coincides with the theatrical release of Laura Poitras’ new documentary, Citizenfour. The Jewel complaint was filed in 2008, and there’s a scene early in the film that shows the long road that case has taken. In footage shot in 2011, the United States Court of Appeals for the Ninth Circuit hears argument in Jewel, and an attorney from the Department of Justice tries to convince a skeptical court that it should simply decide not to decide the case, leaving it to the other branches of government.
But the court did not agree to step aside. EFF prevailed on the issue, and the case continued, albeit very slowly. Now, years later, Poitras’ film underscores just how much the conversation around mass surveillance has changed. Americans are overwhelmingly concerned with government monitoring of their communications, and we hope to (finally) have a constitutional ruling in Jewel soon. (And another in Smith v. Obama, and still another in First Unitarian Church of Los Angeles v. NSA.)
Even so, the government continues to try to avoid a decision that any of its various means of mass surveillance is unconstitutional. The current procedural context is this: in July, EFF filed a partial motion for summary judgment requesting that the court rely on uncontested evidence that the NSA taps into the Internet backbone and collects and searches ordinary Americans’ communication to rule that the government is violating the Fourth Amendment. The technology at issue, which the government calls “upstream,” is illustrated here.
Under this surveillance, the government makes a full copy of everything that travels through key Internet backbone locations, like AT&T’s peering links. The government says that it then does some rudimentary filtering and searches through the filtered copies, looking for specific “selectors,” like email addresses.
The government filed its opposition to our motion in September. In our reply, we note that the government is effectively trying to sidestep the Fourth Amendment for everything that travels over the Internet. We explain:
There's more here:https://www.eff.org/deeplinks/2014/10/automated-mass-surveillance-unconstitutional-eff-explains-jewel-v-nsa
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Last edited Mon Oct 27, 2014, 11:04 AM - Edit history (1)
https://en.wikipedia.org/wiki/Utah_Data_Center
a good read from a couple of years ago: http://www.wired.com/2012/03/ff_nsadatacenter/all/
