'EFF continues our fight to have the U.S. courts protect you from mass government surveillance. Today in our landmark Jewel v. NSA case, we filed our opening brief in the Ninth Circuit Court of Appeals, asserting that the courts don’t have to turn a blind eye to the government’s actions. Instead, the court must ensure justice for the millions of innocent Americans who have had their communications subjected to the NSA’s mass spying programs since 2001.
Just this spring the Ninth Circuit Court of Appeals ruled in a case called Fazaga v. FBI that the state secrets privilege does not apply to cases challenging domestic electronic surveillance for national security. Instead such cases must go forward to the merits of whether the spying is illegal. Today we asked the appeals court to apply that same reasoning to Jewel v. NSA and reverse a judge’s order of dismissal so our clients, and the American people, can finally have their day in court.
We argue in our brief:
For over a decade, plaintiffs have sought a determination of whether the government’s acknowledged mass surveillance of the Internet communications and telephone records of hundreds of millions of Americans violates the Constitution and federal statutory law. But the district court refused to do so, defying Congress’s express command that such claims be decided on the merits—a command recently confirmed by this Court.
This appeal challenges two separate orders of the district court dismissing first our Fourth Amendment claims, and later our statutory claims. Both dismissals were based in substantial part on the district court’s belief that the legality of the spying could not be adjudicated, even under protective court procedures, without revealing to the Judge at least, secret information which the government claims would harm national security.
The district court dismissed our Fourth Amendment claims in February 2015, finding that Jewel and the other plaintiffs could not prove on the available public evidence that they had been caught up in the spying. And the district court dismissed our remaining statutory claims in April 2019, claiming that it would be impossible to analyze the legality of the mass spying without revealing state secrets, and ruling again that the plaintiffs could not prove they were spied on based on the public evidence.
As we argue, the district court’s decisions wrongly deny the American people a ruling on whether the spying programs are legal.'
Read more: Americans Deserve Their Day in Court About NSA Mass Surveillance Programs