On October 24, 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:
The government . . . contends that [Fourth Amendment] principles have no application here, where the government is unequivocally breaching the security and privacy of the papers and effects of millions of individuals. Its position essentially is that it can circumvent the Fourth Amendment’s core principles by copying communications in transit instead of taking physical possession of the originals, and by searching their contents very quickly with computers instead of searching them with humans. The government further contends that if one of its purposes for the copying and searching the communications is foreign intelligence, then the circumvention is complete, and the Internet has for all practical purposes become a Fourth-Amendment-free zone. The government is wrong.
Our reply brief then unravels the government’s various attempts at constitutional circumvention. Here are some key issues we address:
Tapping into the Fiberoptic Cables is a “Seizure”
We explain that the act of copying entire communications streams passing through splitters at AT&T facilities is an unconstitutional seizure of individuals’ “papers” and “effects.” This should be obvious—our “papers” today often travel over the Internet in digital form rather than being stored in our homes—but the government contends that unless it physically interferes with individuals’ possession of some tangible property, it cannot “seize” anything. This is not so. If it were true that conversations could not be “seized” except by taking possession of physical objects, all warrantless wiretapping (where “recording” is a form of “copying” communications) would be constitutional.
This argument is especially troubling in the Internet age, since the government appears to be claiming that it could make a copy of all Internet communications as long as it did so without physically taking possession of any storage media. No way. The Fourth Amendment doesn’t protect just tree pulp or hard drives. It protects your ability to have control over who sees the information carried in your papers and effects. And by copying everything, the government is plainly “seizing” it.
Searching Quickly is Still a Search
The government also argues that because it is able to conduct its entire seizure and search quickly, there’s no real problem. It claims that the only interest you have in your messages in transit is whether they are delayed—not whether you retain control over them. Again, this isn’t the case. The founders of the United States, in writing the Fourth Amendment and in banning “general warrants,” were concerned about the security of their papers. That concern wouldn’t have simply disappeared had the British troops been able to rifle through their papers at the speed of a computer rather than by hand.
The “Human Eyes” Theory
Relatedly, we explain that the act of using a computer program to scan the contents of the copied communications stream in order to find targeted “selectors” is an unconstitutional search. Although the government concedes that individuals have a reasonable expectation of privacy in their Internet communications, thus triggering the Fourth Amendment, it argues that searching through the contents of those communications via an automated computer program does not compromise that expectation of privacy because the communications are not seen by human eyes. In support of this argument, the government compares its scanning of Internet communications to a police officer’s use of a drug-sniffing dog or a chemical drug test to detect contraband in a suspect’s luggage or a suspicious package, which the Supreme Court has found to not constitute a “search.”
But the government misses the point of the “contraband” cases, which turn not on the involvement of humans, but on the fact that no one has a right to possess contraband, and contraband was the only thing the dog sniffs and chemical tests could identify.
The mass, suspicionless surveillance of millions of Americans’ Internet communications is far broader in scope than these limited contraband investigations. First of all, speech just isn’t contraband, and the government’s “selectors” cannot distinguish between potentially illegal and legal speech. That takes humans. Second, the government’s search terms are far from objective, single-criterion searches. Even scanning for hash functions, which are arguably used to identify only illegal computer files like child pornography, have been found to be a search. Here, the scope is much broader, given the government’s stated foreign intelligence goals. What’s more, the act of choosing the selectors involves an exercise of discretion simply not present when teaching a dog to detect drugs. Americans have a reasonable expectation of privacy in their Internet communications, and the government’s act of searching the contents of those communications is a search, irrespective of whether it uses a human being or an automated computer program to do so.
“Special Needs” Again
Finally, as it did in Smith v. Obama, the government claims that its actions are justified by the “special needs doctrine,” the narrow exception to the warrant requirement that applies to minimally intrusive searches of people with reduced privacy expectations, such as students and those who work with dangerous machinery. While we’re not fans of the doctrine here at EFF, what the government is trying to do with it in this case is truly breathtaking. It argues that it needs no warrant to seize and search every single Internet activity of hundreds of millions of innocent people (who have no reduced expectation of privacy) as long as it does so quickly and a “significant reason” for doing so is collecting foreign intelligence.
We hit back hard on that argument, noting, first, that far from having a minimal privacy interest, our “plaintiffs’ privacy interests in their Internet activities and communications lie at the heart of the Fourth Amendment.” We also note that the government’s intrusion here, while possibly speedy due to its computing power, is extensive, searching “every word from top to bottom” of those hundreds of millions of innocent Americans’ communications.
The government’s dangerous “special needs” argument, which apparently the Foreign Intelligence Surveillance Court of Review adopted with regard to the targeted surveillance objected to by Yahoo!, is something the Internet public needs to be aware of. The government is essentially claiming that because there are bad foreign actors online, it should get a free pass from complying with the Constitution whenever it claims a “foreign intelligence” need, and that it gets to do so regardless of how many innocent Americans may be caught up in its net. Or to put it more bluntly, the government is basically saying that its intelligence needs should trump the Constitution, and that no one using the Internet should be able to have a private conversation or engage in private web surfing or information gathering without the government having access.
There’s more in our brief, including our response to the government’s attack on the evidence presented by Mark Klein and the analysis by our expert witness, J. Scott Marcus.
We also filed a motion to strike a second secret brief the government submitted to the court in opposition to our motion for partial summary judgment. As we explain in our motion to strike, it is an extraordinary violation of due process to let the government make secret legal arguments to the court to which we have no ability to respond.
Now that briefing on our motion in Jewel is complete, the next step is oral argument. The court will hear the motion on December 19, 2014 in Oakland, California, and the public is invited.
In the meantime, it is the busiest season for hearings in the NSA spying cases yet. First, on November 4, EFF will participate as amicus in the Klayman v. Obama oral argument before the D.C. Circuit in Washington, D.C. concerning the NSA’s telephone records collection. Then, on December 8 in Seattle, Washington, the Ninth Circuit will hear argument by our co-counsel Peter Smith and Luke Malek in Smith v. Obama, the telephone records case we’re handling with the ACLU.