BUSINESS
07/12/2013 08:09 am ET Updated Jul 12, 2013

NSA Spying Lawsuit Advances Despite Long Odds, National Security Concerns

SAN FRANCISCO –- Mark Klein boarded a commuter train near his home in Alameda, Calif. on a mission to unburden himself of a secret he had harbored for years.

The retired AT&T technician stepped off the train in San Francisco and soon knocked on the front door of the Electronic Frontier Foundation, a nonprofit law firm that advocates for digital privacy rights. He had a story to tell, he explained to the lawyers he met inside.

Klein said he had worked downtown in an AT&T communications center, one hub of the company's vast network. There, he had personally installed a device that directed unfiltered Internet traffic –- domestic and foreign alike –- into a secret, locked space labeled room 641A. The room contained an electronic listening post capable of sifting through vast amounts of Internet traffic, he claimed.

It was January 2006. Klein had recently read in The New York Times that the National Security Agency was eavesdropping on phone calls coming in and out of the United States without obtaining warrants. Based on what he had learned about room 641A, he assumed that the program went far beyond what was described in the newspaper story. He said the snooping extended to domestic calls, emails and instant messages.

Reflecting on what he helped build, he reached an unsettling conclusion.

“I wired up the Big Brother machine,” he said.

Two years later, the Electronic Frontier Foundation sued the NSA, asserting that the agency's communications gathering is illegal and unconstitutional. The foundation leaned heavily on Klein's story, along with documents he smuggled out of his former workplace. So began what has become the most prominent active legal effort to hold the government to account for its mass, warrantless surveillance.

In the five years since, the case has mostly languished at the preliminary stages, seemingly unwinnable for reasons that could prompt any lawyer to surrender: In pursuing the case, the foundation must prove that a program the government will not even acknowledge as existing amounts to a violation of the Constitution.

In defending against the lawsuit, the Justice Department has asserted a so-called state secrets privilege, arguing that any presentation of evidence in the case -- evidence needed to prove the surveillance allegations, or dispel them -- poses a threat to national security. It is an argument that the government has successfully wielded dozens of times to quash court challenges.

Essentially, the Electronic Frontier Foundation has spent much of the last seven years merely seeking to establish its right to sue.

“In the American judicial system, if you have a well-founded belief in something, you have the chance to dig out the facts,” said Cindy Cohn, the foundation’s legal director. “It is not required that you prove the case at the very beginning. But you do in national security cases -- or at least that’s the government’s position.”

On Monday, a federal judge in San Francisco, Jeffrey White, delivered a major blow to the Justice Department's central defense in the case. He dismissed the state secrets claim, instead decreeing that a 1970s law -- the Foreign Intelligence Surveillance Act -- should determine whether and how the case can proceed.

The FISA law still permits the government to withhold information from the public on the grounds that disclosure would violate national security, but it does not authorize the government to withhold that evidence from the court; it must be subject to judicial review. The judge would then decide whether the surveillance was legal.

Based on White's ruling, the Electronic Frontier Foundation could finally get its day in court.

The Justice Department declined to comment on the decision.

“This is a tremendously important decision,” Cohn said. It clears the way for the parties to discuss in open court whether the surveillance violates the constitutional prohibition against unreasonable search and seizures.

“After all, isn’t this the central question everyone wants answered?” Cohn asked.

That train ride Mark Klein embarked on seven years ago finally is inching toward its end.

FEWER SECRETS

Not that anything has been firmly decided. In his ruling, Judge White cautioned that he may still decide proceeding with the case could endanger vital national secrets after he looks at the evidence.

But recent events may have altered that calculus: When former NSA contractor Edward Snowden leaked a trove of information about the extent of the agency’s wiretapping, he essentially diminished the number of secrets left to keep.

Snowden turned over a stack of documents to the The Washington Post and The Guardian that detail the scope of the government's spying in powerful new ways. Among the revelations: an order from a secret U.S. court authorizing the collection of phone metadata -- records that detail the time a call was placed, where it was made and who made it -- for all Verizon customers.

Snowden also turned over a secret audit by the NSA's inspector general which discusses in depth the mass harvesting of email and instant message records under a program called "Stellar Wind." The audit describes at length the kind of activities also alleged in the Electronic Frontier Foundation legal case against NSA spying.

Crucially to the foundation's legal case, the Snowden disclosures also prompted top American security officials to confirm much of what has been reported. Following the leaks, White has ordered the parties to the NSA surveillance litigation to prepare legal briefs explaining what these revelations mean for the case.

Outside legal experts said the new information undercuts the Justice Department’s argument that certain activities are too secret to discuss.

“The disclosures make it more difficult for the government to argue that there should be no judicial review of the legality of government surveillance we now know implicates the communications of millions of Americans,” said Jonathan Hafetz, a law professor at Seton Hall University.

Though Klein was worried his testimony might land him in legal trouble, the retired AT&T technician said recently that his experience is nothing like what Snowden has experienced.

"He threw away a good life to expose the government's spying," he said. "He took a bigger risk than I ever did."

THE BIG BROTHER MACHINE

The Electronic Frontier Foundation traces its beginnings back to 1990. John Gilmore, an early employee of Sun Microsystems, founded the nonprofit with several friends, including John Perry Barlow, a lyricist for the Grateful Dead. They aimed to confront what they perceived as a growing threat to civil liberties from the digital realm.

The organization now includes nearly 50 staff, most of them lawyers. They often intervene in cases involving claims that a government agency or business has unlawfully collected information about individuals. The foundation challenged Google's project to digitize millions of books, for instance, on the grounds that the privacy rights of readers would not be properly protected.

As the issue of digital civil liberties has gained in prominence, the organization has grown, largely through the financial support of individual donors and technology companies -- Google included. The foundation has also attracted support from both ends of the political spectrum, with libertarian-leaning conservatives uniting with liberals to combat what they perceive as the erosion of privacy in the digital age.

Last month, a photo surfaced of Snowden's laptop, adorned by an Electronic Frontier Foundation sticker. Even NSA chief General Keith Alexander is a supporter, at least sartorially: he was spotted wearing a shirt with an EFF patch at a hackers conference last year.

The case against spying is one of the foundation's most intensive, and potentially defining, efforts. Though still far off, the constitutional issues raised by the digital group are of the kind that the U.S. Supreme Court could eventually determine.

The foundation's first spying lawsuit, however, met an ignominious end. In 2006, the rights group sued AT&T, which it claimed had illegally disclosed customer information without a warrant.

Two years later, Congress took the extraordinary step of granting the telecoms immunity for any past cooperation with government spying efforts. The mass wiretapping activity was also placed under the auspices of the Foreign Intelligence Surveillance Court, a judicial body that operates in extreme secrecy.

"I was crushed," Cohn said. "It's a strange feeling to have a law passed just to stop you."

Soon after, the rights group sued the NSA, alleging that the huge eavesdropping agency had embarked on an "unprecedented suspicion-less general search through the nation’s communications networks.”

The lawsuit is a class action, meaning that the organization is suing on behalf of people who were subjected to the communications harvesting. Other organizations, such as the American Civil Liberties Union, have also sued to stop the surveillance, but the Electronic Frontier Foundation's case is the most advanced.

Though there is nothing specifically at stake for the handful of AT&T customers who are named as plaintiffs in the lawsuit, Carolyn Jewel, whose name comes first on legal documents, said she has closely monitored developments.

Jewel said she knows from personal experience as a data administrator in nearby Petaluma, Calif. –- her day job, when not writing romance novels –- that once information is collected, it can be misused.

“We have a right to privacy,” she said recently. “We have a right for the government to stay out of our personal business.”

The lawsuit that bears her name has moved at a snail’s pace, from the federal district court, up to an appeals court, and back again. Along the way, the first judge overseeing the case retired, and White took his place.

At every step, the government asserted that allowing the case to proceed would endanger state secrets. “There’s nothing non-privileged about any of this case,” declared Anthony Coppolino, a Justice attorney, at a hearing in December.

Even a proposal to discuss some aspects of the case in a private setting would be completely unacceptable, Coppolino avowed. For the judge overseeing the case to even consider such a notion “would be completely unprecedented in the history of the federal judiciary from the beginning of the republic,” he said.

“We think the mass dragnet surveillance that the government has been conducting is completely unprecedented in the history of the republic,” countered Richard Wiebe, an outside attorney brought in by the foundation to try the case.

In a recent interview in the foundation's spacious new office -- evidence of the organization’s recent growth in size and clout -- Cohn, the legal director, said fighting against the government’s claim that the case is simply too sensitive to discuss “has been really frustrating.”

“I didn’t get into this because I want to spend seven years fighting over state secrets,” she said. “I want to stop spying.”

While her dog lounged on the floor near her feet, Cohn began to argue that outrage over unreasonable searches was one of the factors that led the American patriots to revolt against King George. British troops would execute something called a general warrant, which would allow them to search private residences on any grounds.

“I think they are turning the Constitution on its head,” she said, then added: “I’m interested in explaining this to the originalist members of the Supreme Court.”

At a recent dinner party, she found herself discussing the Snowden disclosures.

“You seem happy,” her host said.

“I’m not happy about the surveillance, I am happy we are talking about this,” Cohn responded. “I’m happy we are finally beginning to have the conversations we have wanted to have since Mark Klein walked into our door in 2006.”

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