NSA Class Actions Would Reveal National Security Secrets, Judge Says

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Two class action lawsuits filed against the National Security Agency, President Barack Obama and others were tossed by a California federal judge, who said if the lawsuits, which challenge how the government collects data from internet communications from AT&T Inc. without warrants, continue the litigation process will reveal state secrets used by the government that could put the nation’s security at risk.

The plaintiffs had alleged that the U.S. government was violating the Fourth Amendment of the Constitution through its data collection program and was collecting their private communications illegally because it was doing so without a warrant.

However, U.S. District Judge Jeffrey White ruled in favor of the NSA by granting partial summary judgement concerning the alleged Fourth Amendment violations.

The surveillance program is used by the NSA to “identify non-U.S. persons located outside the United States who are reasonably believed to possess or receive, or are likely to communicate, foreign intelligence information designated in the certification,” which the NSA gets approval for by the Foreign Intelligence Surveillance Court.

In order for the NSA to find its targets, one of the means this is done is through a program called Upstream, in which telecommunications providers are compelled to assist the government with data collecting.

“Tasked selectors are sent to domestic electronic communications service providers to acquire communications that transit the internet backbone,” Judge White explains in his ruling about the NSA data collection class action lawsuits.

“Internet communications are filtered in an effort to remove all purely domestic communications, and are then scanned to capture only those communications containing the designated tasked selectors,” he added. Only communications that pass both these tests are then “ingested into governmental databases.”

The government had argued against the NSA surveillance program class action lawsuits saying that the alleged Fourth Amendment violations should be dismissed because it is protected by the “state secrets privilege.”

If the classified information requested by plaintiffs were revealed it “would risk informing adversaries of the specific nature and operational details of the Upstream collection process and the scope of the NSA’s participation in the program.”

According to Judge White, even though some of this classified information was released without authorization in 2013 by former NSA contractor Edward Snowden, “substantial details about the challenged program remain classified.” The California federal judge does not mention Snowden by name, but his actions are clearly implied.

“Because a fair and full adjudication of the Government defendants’ defenses would require harmful disclosures of national security information that is protected by the state secrets privilege, the court must exclude such evidence from the case,” he said about the NSA class action lawsuit.

Judge White said he is “frustrated by the prospect of deciding the current motions without full public disclosure of the court’s analysis and reasoning,” but he added that again it’s “a necessary by-product of the types of concerns raised by this case.”

He said that even though he cannot reveal all the information he considered when making his decision to the plaintiffs or the public that “the record contains the full materials reviewed by the court.”

According to Judge White, his decision “is correct both legally and factually and furthermore is required by the interests of national security.”

The plaintiffs are represented by James Samuel Tyre, Andrew Gellis Crocker, Cindy Ann Cohn, Kurt Bradford Opsahl, Lee Tien and Mark Thomas Rumold of the EFF, Rachael E. Meny, Michael S. Kwun and Benjamin W. Berkowitz of Keker & Van Nest LLP; Matthew Delmont Brinckerhoff and Ilaan Margalit Maazel of Emery Celli Brinckerhoff & Abady LLP; Thomas E. Moore III of Royse Law Firm PC; Richard R. Wiebe of the Law Office of Richard R. Wiebe and Aram V. Antaramian of the Law Office of Aram Antaramian.

The NSA is represented by Anthony Joseph Coppolino, James J. Gilligan, Marcia Berman and Paul Gerald Freeborne of the U.S. Department of Justice.

The NSA Surveillance Class Action Lawsuits are Jewel et al. v. National Security Agency et al., Case No. 3:08-cv-04373, and Shubert et al. v. Barack Obama et al., Case No. C-07-00693-JSW, both in the U.S. District Court for the Northern District of California.

UPDATE: On Feb. 19, 2016, a California federal judge granted a lift on discovery, meaning that the National Security Agency may soon have to produce documents related to its surveillance program.

UPDATE 2: On Sept. 7, 2018, the National Security Agency urged a California district courtto dismiss a class action lawsuitalleging that the agency illegally spied on AT&T users, claiming that the users did not show enough evidence.