Plaintiffs Want 9th Circ. To Hear NSA Class Action Claims

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Last week, AT&T customers in the class action lawsuit accusing the National Security Agency of illegally collecting Internet communications without warrants asked the 9th U.S. Circuit Court of Appeals to hear their Fourth Amendment claims.

Lead plaintiffs alleged in their class action lawsuit in California federal court that the government agency, the NSA, had used a surveillance program to compel AT&T, a private company, to provide customer communications that the NSA identified as coming from a potential source of information about terrorist activity.

In two NSA class action lawsuits, one filed in 2007 and one in 2008, the plaintiffs alleged that use of this surveillance program, Upstream, was a violation of their Fourth Amendment rights because the NSA was collecting their private communications without a warrant.

In California federal court, U.S. District Judge Jeffrey S. White had dismissed the plaintiffs’ Fourth Amendment claims after finding the NSA class action lawsuits would expose NSA operations in an impermissible disclosure of classified information. The judge explained that state secrets could be disclosed during such a case.

Although Judge White noted he was frustrated that the decision making process could not be fully presented to the public, he said that this was “a necessary by-product of the types of concerns raised by this case” in his order. “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 concluded.

When they filed their notice of appeal to the 9th Circuit, representatives for the plaintiffs issued a statement saying that the NSA class action lawsuit relies on publicly disclosed information, including a whistleblower. “The evidence we have is not secret evidence,” stated the representative, saying that any evidence that is deemed protected should simply be reviewed by the court in secret rather than cause the claims to be dismissed.

Earlier in the week Congress voted to send a bill to the President to halt the NSA’s bulk collection program for domestic telephone metadata and certain other domestic surveillance programs. This act, the USA Freedom Act, bars the agency from using surveillance programs to collect phone metadata. It also reauthorizes the Patriot Act’s main statutory authority used for the agency’s other surveillance programs.

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 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. The appeal is Jewel, et al. v. National Security Agency, et al., Case No. 15-16133, in the U.S. Court of Appeals for the Ninth Circuit.

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.