Court Challenges to NSA Surveillance: 2017 in Review …
One of the governments most powerful surveillance tools is scheduled to sunset in less than three weeks, and, for months, EFF has fought multiple legislative attempts to either extend or expand the NSAs spying powerswarning the public, Representatives, and Senators about circling bills that threaten Americans privacy. But the frenetic, deadline-pressure environment on Capitol Hill betrays the slow, years-long progress that EFF has made elsewhere: the courts.
2017 was a year for slow, procedural breakthroughs.
Here is an update on the lawsuits that EFF and other organizations have against broad NSA surveillance powers.
EFF began 2017 with significant leverage in our signature lawsuit against NSA surveillance, Jewel v. NSA. The year prior, U.S. District Court Judge Jeffrey White in Oakland, California, ordered the U.S. government to comply with EFFs discovery requestswhich are inquiries for evidence when lawsuits advance towards trial. In several lawsuits, this process can take months. In Jewel v. NSA, simply allowing the process to begin took eight years.
This year, EFF waited expectantly for the U.S. government to provide materials that could prove our plaintiff was subject to NSA surveillance through the agencys practice of tapping into the Internets backbone to collect traffic. But expectations were tempered. The U.S. governments lawyers missed the discovery deadline, asked for an extension, and were given a new, tentative deadline by the judge: August 9, 2017.
The U.S. governments lawyers missed that deadline, and asked for an extension, approved by the judge: October 9, 2017.
The U.S. governments lawyers missed that deadline, and asked for another extension, this time indefinitely.
Producing the materials, the government attorneys claimed, was simply too difficult to do on a timely basis.
[T]he volume of documents and electronic data that the government defendants must review for potentially responsive information is massive, the attorneys wrote.
EFF strongly opposed the governments request for an indefinite extension, and suggested a new deadline in January to comply with the courts previous orders. The judge agreed and put an end to the delay. The deadline is now January 22, 2018.
The basic premise of our questions is simple: we want information that explains whether the plaintiffs data was collected.
EFF hopes the government can follow the judges orders this time.
EFF filed an amicus brief this year asking the Supreme Court to overturn a lower courts ruling that allowed government agents to bypass the Fourth Amendment when searching through the electronic communications of U.S. persons.
The amicus was filed after a decision in Mohamud v. United States, a lawsuit that concerns the electronic communications of American citizen Mohamed Mohamud. In 2010, Mohamud was arrested for allegedly plotting to use a car bomb during a Christmas tree lighting ceremony in his home state of Oregon. It was only after Mohamuds conviction in U.S. v. Mohamud that he learned the government relied on evidence collected under Section 702 of the FISA Amendments Act for his prosecution.
Section 702 authorizes surveillance on non-U.S. persons not living in the United States. Mohamud fits neither of those categories. After learning that the evidence gathered against him was collected under Section 702, Mohamud challenged the use of this evidence, claiming that Section 702 was unconstitutional.
The U.S. Court of Appeals for the Ninth Circuit, which heard Mohamuds counter arguments, disagreed. In a disappointing opinion that scuttles constitutional rights, the court ruled that Americans whose communications are incidentally collected under Section 702 have no Fourth Amendment rights when those communications are searched and read by government agents.
Together with Center for Democracy & Technology and New Americas Open Technology Institute, EFF supported Mohamuds request that the U.S. Supreme Court reconsider the appellate courts opinion.
We urge the Supreme Court to review this case and Section 702, which subjects Americans to warrantless surveillance on an unknown scale, said EFF Staff Attorney Andrew Crocker. We have long advocated for reining in NSA mass surveillance, and the incidental collection of Americans private communications under Section 702 should be held unconstitutional once and for all.
EFF also filed an amicus brief in the case of U.S. v. Agron Hasbajrami, a lawsuit with striking similarities to U.S. v. Mohamud.
In 2011, Agron Hasbajrami was arrested at JFK Airport before a flight to Pakistan for allegedly providing material support to terrorists. In 2013, Hasbajrami pleaded guilty to the charges.
Hasbajramis court case was set for July 2015. Before going to trial, Hasbajrami pleaded guilty a second time.
But then something familiar happened. Much like Mohamud, Hasbajrami learned that the evidence used to charge him was collected under Section 702. And, just like Mohamud, Hasbajrami is a U.S. person living inside the United States. He is a resident of Brooklyn, New York.
Hasbajrami was allowed to request to withdraw his plea, and his lawyers argued to remove the evidence against him from court. Hasbajramis judge denied the request, and the case was moved to the Second Circuit Court of Appeals.
EFF and ACLU together urged the Second Circuit Court of Appeals to make the right decision. There is opportunity for the appellate court to protect the constitutional rights of all Americans, defending their privacy and enshrining their security from warrantless search. We plead to the court to not make the same misguided decision made in Mohamud v. U.S.
The Wikimedia Foundation scored an enormous victory this year when an appeals court allowed the nonprofits challenge to NSA surveillance to move forward, reversing an earlier decision that threw the lawsuit out.
Represented by the ACLU, Wikimedia sued the NSA in 2015 for the use of its upstream program, the same program that EFF is suing the NSA over in Jewel v. NSA. Wikimedia argued that the program infringed both the First Amendment and Fourth Amendment.
Originally filed in the U.S. District Court for the District of Maryland, Wikimedias lawsuit was thrown out because the court ruled that Wikimedia could not prove it had suffered harm due to NSA surveillance. This ability to prove that a plaintiff was actually wronged by what they allege is called standing, and the court ruled Wikimediaand multiple other plaintiffslacked it.
But upon appellate review, the Fourth Circuit Court of Appeals approved standing for Wikimedia in May 2017. However, the appellate court denied standing for other plaintiffs in the lawsuit, which included Human Rights Watch, The Nation Magazine, The Rutherford Institute, Amnesty International USA and more.
This victory on a small issuestandingis an enormous victory in continuing the fight against NSA surveillance.
The judicial system can be slow and, at times, frustrating. And while victories in things like discovery and standing may seem only procedural, they are the first footholds into future successes.
EFF will continue its challenges against NSA surveillance in the courts, and we are proud to stand by our partners who do the same.
This article is part of our Year In Review series.Read other articles about the fight for digital rights in 2017.
Go here to read the rest:
Court Challenges to NSA Surveillance: 2017 in Review ...
- McConnell calls out Trump for hiring amateur isolationists at Pentagon, firing NSA director - The Hill - April 8th, 2025 [April 8th, 2025]
- Trumps firing of NSA chief is rolling out the red carpet for cyber attacks - Politico - April 8th, 2025 [April 8th, 2025]
- A conspiracy theorist convinced Trump to fire the NSA director - Vox - April 8th, 2025 [April 8th, 2025]
- William Hartman Named Acting NSA Director Following Dismissal of Top Officials - ExecutiveGov - April 8th, 2025 [April 8th, 2025]
- NSA and partners Issue Guidance on Fast Flux as a National Security Threat - National Security Agency (NSA) (.gov) - April 8th, 2025 [April 8th, 2025]
- Security News This Week: NSA Chief Ousted Amid Trump Loyalty Firing Spree - WIRED - April 8th, 2025 [April 8th, 2025]
- Head of NSA and US Cyber Command reportedly fired - Cybersecurity Dive - April 8th, 2025 [April 8th, 2025]
- Trump fires Gen. Timothy Haugh from leadership of Cyber Command and NSA - DefenseScoop - April 8th, 2025 [April 8th, 2025]
- Gen. Timothy Haugh, head of NSA and Cyber Command, is fired - CBS News - April 8th, 2025 [April 8th, 2025]
- Trump's mixed tariff messaging and NSA director and deputy fired: Morning Rundown - NBC News - April 8th, 2025 [April 8th, 2025]
- NSA Director and Deputy Reportedly Dismissed: What We Know - Newsweek - April 8th, 2025 [April 8th, 2025]
- Haugh fired from leadership of NSA, Cyber Command - The Record from Recorded Future News - April 8th, 2025 [April 8th, 2025]
- Trump administration fires head of NSA and U.S. Cyber Command, along with other top officials - CBS News - April 8th, 2025 [April 8th, 2025]
- US Cyber Command, NSA Chief Gen. Timothy Haugh ousted by Trump admin - Breaking Defense - April 8th, 2025 [April 8th, 2025]
- Face the Facts: Rep. Himes talks about firing of two top NSA officials - NBC Connecticut - April 8th, 2025 [April 8th, 2025]
- NSA Issues Advisory on Fast Flux Cyberthreat - ExecutiveGov - April 8th, 2025 [April 8th, 2025]
- Loomer, far-right activist, urged Trump to remove NSA director and others: Sources - ABC News - April 8th, 2025 [April 8th, 2025]
- The NSA Sounds Security Alarm For Billions Of iPhone And Android Phones - HotHardware - April 8th, 2025 [April 8th, 2025]
- NSA director fired after Trumps meeting with right-wing influencer Laura Loomer - The Verge - April 8th, 2025 [April 8th, 2025]
- Trump fires head of NSA and Cyber Command - Nextgov - April 8th, 2025 [April 8th, 2025]
- What are the national security concerns of Trump firing the NSA, Cyber Command head? - CBS News - April 8th, 2025 [April 8th, 2025]
- Who is Timothy Haugh? The NSA chief fired amid cyber security concerns - Times of India - April 8th, 2025 [April 8th, 2025]
- NSA, CISA, FBI, and International Partners Release Cybersecurity Advisory on Fast Flux, a National Security Threat - Hstoday - April 8th, 2025 [April 8th, 2025]
- Senator King Responds to Reported Firing of NSA Director General Timothy Haugh - WAGM - April 8th, 2025 [April 8th, 2025]
- NSA warned of vulnerabilities in Signal app a month before Houthi strike chat - CBS News - March 26th, 2025 [March 26th, 2025]
- Trump said poised to fire NSA Mike Waltz for including journalist in top secret war chat - The Times of Israel - March 26th, 2025 [March 26th, 2025]
- Not the last Waltz: Trump defends NSA after security breach - The Times of India - March 26th, 2025 [March 26th, 2025]
- NSA warned about vulnerabilities in Signal prior to White House group chat fiasco - SiliconANGLE News - March 26th, 2025 [March 26th, 2025]
- NSA warned the Signal app was vulnerable last month - WTIC - March 26th, 2025 [March 26th, 2025]
- Codebreakers and Covert Agents: The Women Behind the NSA and CIA heads to Illinois State Museum - WAND - March 26th, 2025 [March 26th, 2025]
- NSA warned about using Signal a month before leak of Houthi strike chat - CBS News - March 26th, 2025 [March 26th, 2025]
- 'Putin is giddy': NSA knew Signal was vulnerable to Russian hackers before security breach - AlterNet - March 26th, 2025 [March 26th, 2025]
- RAW: NSA MIKE WALTZ EXPECTED TO VISIT GREENLAND - Local 3 News - March 26th, 2025 [March 26th, 2025]
- US NSA likely to visit India in third week of April - Hindustan Times - March 26th, 2025 [March 26th, 2025]
- Statement from Secretary Rubio and NSA Waltz on Call with Zelenskyy - Department of State - March 22nd, 2025 [March 22nd, 2025]
- Europe must invest more in defence amid global shifts: Greeces NSA Ntokos - Firstpost - March 22nd, 2025 [March 22nd, 2025]
- NSA Bahrain, NAVCENT Hold First-of-its-Kind Exercise Vigilant Resolve - navy.mil - March 22nd, 2025 [March 22nd, 2025]
- Former NSA boss Osei Assibey Antwi picked up by NIB - GhanaWeb - March 22nd, 2025 [March 22nd, 2025]
- WHAT THE TECH? NSA recommending weekly smartphone restarts & how it improves performance - Local 3 News - March 9th, 2025 [March 9th, 2025]
- Ex-NSA cyber chief warns of devastating impact of potential DOGE-inspired firings - Breaking Defense - March 9th, 2025 [March 9th, 2025]
- Former top NSA cyber official: Probationary firings devastating to cyber, national security - CyberScoop - March 9th, 2025 [March 9th, 2025]
- Prime Targets Martha Plimpton On Her NSA Character & Why This Political Thriller Works: Never Trust People In Charge - Deadline - March 9th, 2025 [March 9th, 2025]
- Former NSA Dep. Director, Gifty Oware-Mensah will see NIB over 80k ghost names allegations - GhanaWeb - March 5th, 2025 [March 5th, 2025]
- Zelensky is not ready for peace talks, US NSA says - Mehr News Agency - English Version - March 3rd, 2025 [March 3rd, 2025]
- More Than 100 Intelligence Staffers Will Be Fired Over Sexually Explicit Texts In NSA Chatrooms, Gabbard Says - Forbes - March 1st, 2025 [March 1st, 2025]
- NSA says it is investigating potential misuse of chat platform - The Record from Recorded Future News - March 1st, 2025 [March 1st, 2025]
- 100-plus spies fired after NSA internal chat board used for kinky sex talk - The Register - March 1st, 2025 [March 1st, 2025]
- Tulsi Gabbard says more than 100 intelligence officers will be fired for sexually explicit NSA chat messages - CNN - March 1st, 2025 [March 1st, 2025]
- Elon Asked What Government Workers Did. The NSA Overshared - Schiff Sovereign - March 1st, 2025 [March 1st, 2025]
- Tulsi Gabbard Fires 100 Intelligence Officers for Sex Chats on NSA-Hosted Tool - The Daily Beast - March 1st, 2025 [March 1st, 2025]
- Elon Musk reacts to leaked chat alleging NSA, CIA officials discussed raising intersex babies as non-bina - The Times of India - March 1st, 2025 [March 1st, 2025]
- What NSA, DIA agents said about Libs of TikTok, Ben Shapiro in leaked messages - The Times of India - March 1st, 2025 [March 1st, 2025]
- NSA staff accused of lurid sex chats at work they were just discussing LGBTQ+ issues - PinkNews - March 1st, 2025 [March 1st, 2025]
- Sen. Tom Cotton reacts to lewd NSA chats: 'We don't want these people anywhere near classified information' - Fox News - March 1st, 2025 [March 1st, 2025]
- At least 100 NSA staffers to be fired for explicit chats during work hours - WDRB - March 1st, 2025 [March 1st, 2025]
- Gifty Oware-Mensah on the run as NIB investigates NSA scandal - GhanaWeb - February 25th, 2025 [February 25th, 2025]
- Former NSA, Cyber Command chief Paul Nakasone says U.S. falling behind its enemies in cyberspace - CyberScoop - February 25th, 2025 [February 25th, 2025]
- NSA emphasizes strong defensive posture as it responds to report it hacked China - Washington Times - February 25th, 2025 [February 25th, 2025]
- How the NSA Head of Accounts was undermined by his deputy for eight months after appointment - GhanaWeb - February 25th, 2025 [February 25th, 2025]
- What Is Proteus in Zero Day? How the NSA Weapon Changes Everything - Collider - February 25th, 2025 [February 25th, 2025]
- 'Zelenskyy will sign the minerals deal, no matter': US NSA Mike Waltz on Trump's Ukraine plan - The Economic Times - February 25th, 2025 [February 25th, 2025]
- EXCLUSIVE: Clearcover launches Illinois-based reciprocal exchange to jumpstart entry into NSA - Re-Insurance.com - February 12th, 2025 [February 12th, 2025]
- Chief of Naval Operations Visits NSA Crane, Purdue University [Image 18 of 25] - DVIDS - February 12th, 2025 [February 12th, 2025]
- Liminal Health Launches NSA ClearPath: Revolutionizing Reimbursement for Out-of-Network Providers - PR Newswire - February 12th, 2025 [February 12th, 2025]
- Elon Musks D.O.G.E is giving the CIA and NSA nightmares now - MSN - February 12th, 2025 [February 12th, 2025]
- NSA Ajit Doval likely to visit US along with PM Modi - The Economic Times - February 12th, 2025 [February 12th, 2025]
- The NSA says do these 5 things with your phone right now - Fox News - January 30th, 2025 [January 30th, 2025]
- NSA: Iraqi territory will not be used to attack neighboring countries Iraqi News Agency - ina.iq - January 30th, 2025 [January 30th, 2025]
- NDC is not here to witch-hunt - Opare Addo to NSA staff - GhanaWeb - January 30th, 2025 [January 30th, 2025]
- NSA Warns iPhone And Android UsersDisable Location Tracking - Forbes - January 19th, 2025 [January 19th, 2025]
- Trumps incoming NSA: Hamas must have no role in governing Gaza - JNS.org - January 19th, 2025 [January 19th, 2025]
- Trump NSA Disputes Report That Neocons Are Influencing MAGA Staffing - RealClearDefense - January 19th, 2025 [January 19th, 2025]
- US NSA lauds Ajit Doval for pivoting ties to advanced future tech - The Times of India - January 9th, 2025 [January 9th, 2025]
- Auto insurtech Clearcover expands into Texas NSA market with CGA launch - Re-Insurance.com - January 9th, 2025 [January 9th, 2025]
- "Cannot Think Of A Better Way To End My Tenure": US NSA On His India Visit - NDTV - January 9th, 2025 [January 9th, 2025]
- Heightened Security At U.S. Naval Academy And NSA Annapolis: Public Access Suspended Amid Increased Force Protection Measures - Bay Net - January 9th, 2025 [January 9th, 2025]
- From The Seabed To The Stars: 10 Takeaways From U.S. NSA Sullivans Visit - Strategic News Global - January 9th, 2025 [January 9th, 2025]
- NSA Sullivan to visit India to finalise important ongoing initiatives: White House - The Hindu - January 9th, 2025 [January 9th, 2025]
- What NSA Jake Sullivans India Visit Signals For Nuclear And Tech Ties As US Lifts Curbs On Indian Entities - Swarajya - January 9th, 2025 [January 9th, 2025]
- NSA Sullivan arrives today, seeks to strengthen AI, space, tech ties - The Tribune India - January 9th, 2025 [January 9th, 2025]