Two New Cases Regarding NSA Surveillance

The 9th Circuit has decided a pair of cases involving the NSA Surveillance Program.

In Jewel v. NSA, the 9th Circuit concluded that plaintiffs had standing to raise constitutional challenges against NSA telephone surveillance:

At issue in this appeal is whether Carolyn Jewel and other residential telephone customers (collectively “Jewel”) have standing to bring their statutory and constitutional claims against the government for what they describe as a communications dragnet of ordinary American citizens.  In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, internet and electronic communications, we conclude that Jewel’s claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury.

In In re NSA Telecommunications Litigation, the 9th Circuit held that § 802 of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1885a (the FISA Amendments
Act) is constitutional.  The Act retroactively immunized telecommunication companies for cooperating with the NSA.

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1 Response

  1. Howard Gilbert says:

    There may be less here than initially appears. Jewel asserts that her communications must have been intercepted because everyone’s communications were intercepted by the NSA. If this argument is accepted, there would be no need to present evidence that Jewel personally and individually suffered an injury, but the District Court found that such a general claim that affects everyone provides no standing. The Circuit reversed because it decided that the complaint alleged specific personal injury, but that would then require evidence that Jewel cannot provide.

    In this view, the key paragraph in the decision is:

    Similarly distinguishable is the Sixth Circuit’s denial of standing to challenge the entire NSA wiretapping program. ACLU v. NSA, 493 F.3d 644, 648 (6th Cir. 2007). Although the court reversed on standing grounds, it considered a fully developed summary judgment record. Arguably that case is of “no relevance here,” because our case “involve[s] not a Rule 56 motion for summary judgment but a Rule 12(b) motion to dismiss on the pleadings.” Nat’l Wildlife Fed., 497 U.S. at 889. The ACLU plaintiffs—attorneys and other professionals whose communications with overseas individuals were allegedly impacted—were unable to “produce any evidence that any of their own communications have ever been intercepted.” ACLU, 493 F.3d at 653. The court thus faulted them for “assert[ing] a mere belief” that the NSA eavesdropped on their communications without warrants. Id. This failure of proof doomed standing. Ultimately Jewel may face similar procedural, evidentiary and substantive barriers as the plaintiffs in ACLU, but, at this initial pleading stage, the allegations are deemed true and are presumed to “embrace the ‘specific facts’ needed to sustain the complaint.” Lujan, 497 U.S. at 888; see also Bennett v. Spear, 520 U.S. 154, 168 (1997) (noting in its discussion of standing, “at the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.”).

    So while the Ninth Circuit may have given the benefit of the doubt to preserve the case from immediate dismissal, it did so only by explicitly presenting what for Jewel will be an insurmountable requirement in the next step when the defendants move for summary judgement. Jewel has no evidence (as the EFF makes clear in its public statements) of any individual personal interception. The only evidence is the existence of infrastructure for general communications processing not specifically related to Jewel herself. That evidence is not enough to meet the burden of the complaint as the Ninth Circuit has now redefined it.