NSA Says AT&T Users Didn’t Show Enough Evidence in Spying Class Action

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The National Security Agency is urging a California district court to dismiss a class action lawsuit alleging that the agency illegally spied on AT&T users, claiming that the users did not show enough evidence.

According to the NSA, consumers did not present “competent evidence” that they were under surveillance by the NSA.

The NSA class action lawsuit has undergone almost 10 years of litigation, and the agency urged the court to end the case, “albeit on terms that plaintiffs will not welcome.”

Last Friday, the NSA said “in short, after nearly ten years of litigation, [the AT&T users] have failed to adduce any competent evidence that their communications, or data about their communications, have been subjected to the National Security Agency intelligence gathering programs that they seek to challenge,” claiming that the users could not prove that the NSA had been spying on them or using their information inappropriately, as they had alleged.

According to the agency, “[the users] cannot establish their Article III standing to maintain their remaining statutory challenges to these program, and their still-pending claims against the government defendants (and by the same token, their claims, too, against the personal-capacity defendants) must be dismissed.”

The AT&T consumers original data collection class action lawsuit argued that the NSA’s program, the Upstream Internet data collection program, was a form of illegal search, and violated the Fourth Amendment. The users claimed that their data, gained through their use of AT&T services, had been gathered through the NSA through these programs.

However, at earlier stages in the litigation, the court already dismissed six of the consumers’ statutory claims. The court granted summary judgment in favor of the NSA after the consumers claimed that the NSA’s Upstream Internet data collection violated the Fourth Amendment.

Additionally, the government claimed that revealing national security information would pose “exceptionally grave damage to national security,” though the consumers requested that they do so during the litigation process.

The NSA also argued to the court that they should reject the consumers’ statement that the court is both authorized and “required” to use classified informant to determine the verdict of the case.

The NSA’s representation stated that the consumers’ conclusion “flies in the face of decades of precedent, and the Supreme Court’s recent warning against the inherent risk to national security of adjudicating parties’ standing to challenge claimed government surveillance based on ex part, in camera review of classified evidence.”

The AT&T users are represented by Cindy A. Cohn, David Greene, Lee Tien, Kurt B. Opsahl, Mark T. Rumold, Andrew G. Crocker, Jamie L. Williams and James S. Tyre of the Electronic Frontier Foundation, Richard R. Wiebe of the Law Office of Richard R. Wiebe, Philip J. Tassin, Rachael E. Meny, Michael S. Kwun and Benjamin W. Berkowitz of Keker Van Nest & Peters LLP, Thomas E. Moore III of Royse Law Firm PC and Aram V. Antaramian of the Law Office of Aram Antaramian.

The NSA Wiretapping Class Action Lawsuit is Jewel, et al. v. National Security Agency, et al., Case No. 4:08-cv-04373, in the U.S. District Court for the Northern District of California.