from arstechnica.com: Warrantless wiretapping by the National Security Agency began as a
Bush-era program in October 2001; in 2008, the government essentially
allowed the practice in the FISA Amendments Act. The same year, the
Electronic Frontier Foundation filed lawsuits challenging the
surveillance.


At a hearing today in San Francisco federal court, the debate over
whether NSA can continue its practices heated up again. Under
questioning from US District Judge Jeffrey White, EFF and government
lawyers sparred about how the case should move forward, or if it can at
all. The Department of Justice argues the case can’t move forward—at
all—without violating the “state secrets privilege.”


“There is nothing non-privileged about any of this case,” said DOJ lawyer Tony Coppolino. The Jewel v. NSA
lawsuit filed by EFF is an example of a case where “secret and
non-secret information cannot be separated,” he added. “The information
is inextricably intertwined, and the risk of exposure occurs at every
outset. All of the NSA’s methods for collecting foreign intelligence
info to protect this country are privileged.” 


It’s been a long, winding road to get here. The initial lawsuit filed in
2008 was already thrown when the first judge who heard the case ruled
that it was merely a “general grievance” that couldn’t sustain a
lawsuit, but an appeals court disagreed and revived
the case. Now it’s back in district court, although with a different
judge. (US District Judge Vaughn Walker, who first heard the case, has
retired.)


The government wants the case dismissed for additional reasons, too; one
of them is that they say the plaintiffs simply don’t have standing.
That is, they can’t prove that they were actually wiretapped by the NSA.
Mark Klein, the whistleblower who revealed that AT&T was working with the NSA, didn’t really know what he saw, said Coppolino;
nor did J. Scott Marcus, the expert who backed up Klein’s claims. “No
disrespect to Mr. Marcus and Mr. Klein, but they indicated they heard
something. Maybe someone from the NSA was at the facility. But they
don’t actually know.”


 “Well that’s kind of a Catch-22, isn’t it?” responded EFF lawyer
Richard Wiebe. According to the government, “if the plaintiffs weren’t
subject to surveillance, then they have no standing, and no right to
sue,” said Wiebe. “The information [about whether they were surveilled
or not] goes to the heart of the case.”


At one point, Judge White asked how he should proceed if he disagrees
with the government and decides not to dismiss the case at this point.
The mere suggestion seemed to alarm Coppolino.


“That would be completely unprecedented in the history of the
judiciary from the beginning of the Republic,” he said. Discovery into
whether or not a person has been subject to surveillance would
“inherently risk the disclosure of information we’re trying to protect.
If you’re going to go down this road, let us appeal [immediately].”


EFF’s lawyer Richard Wiebe responded that it was the government’s behavior that was truly novel.
“The mass dragnet surveillance the government is conducting is
completely unprecedented in the history of the republic,” said Wiebe.
“At the AT&T facility, right here in San Francisco—at Second and
Folsom—all of the traffic between AT&T and other providers is split.
An exact copy of all of that traffic is sent to a room under the
control of the NSA.”


The court could, and should, set up a procedure to review evidence in camera, out of public view, said Wiebe.


Judge White kicked off the hearing by saying he had not decided how
to proceed. He went through several questions over the course of a
hearing that lasted about three hours. In addition to the core issues,
he asked whether or not the lawsuit should be allowed to proceed against
individual government officers.


EFF also tried to sue AT&T for violating its customers’ privacy
rights, but that legal stratagem died when Congress provided immunity to
telcos in the 2008 law.


The Bush administration admitted that the government listened in on
some phone calls between Americans and overseas parties, but both the
Bush and Obama administrations have refused to disclose whether there is
warrantless, widespread, “dragnet”-style data collection taking place
within the US.


The Obama administration has generally followed the same line as the
Bush administration, arguing that national security would be in danger
if the allegations were to be addressed in court. The EFF’s case against the government, Jewel v. NSA, was heard together with Shubert v. Bush, a class action suit over the same issue.