How the NSA leaks may help EFF sue the government into defending its bulk surveillance programs

The "other shoe" in the Edward Snowden NSA leaks has been the potential effect of all these disclosures on the Electronic Frontier Foundation's efforts to force the government to account for itself in court. Since 2005 -- when Mark Klein, a former AT&T worker came into EFF's offices with documentary evidence of a secret room at AT&T's Folsom Street switching center, where the NSA was effectively making a copy of all the traffic on AT&T's network without a warrant -- the EFF has been trying to get the government to explain to a judge why they think this kind of bulk surveillance is legal.

But at every turn, the Bush and Obama DoJs have convinced judges that these questions can't be asked in court, let alone answered. The invocation of state secrecy has stymied all attempts to date at getting the government to square the circle on the Fourth Amendment and bulk, warrantless surveillance of every American's Internet traffic.

As Wired's David Kravets notes, judges may be a lot more skeptical about state secrecy now that this stuff just isn't much of a secret anymore:

First it was the President George W. Bush administration and then the President Barack Obama administration, which for years have been arguing in court that the state-secrets privilege shields the government from lawsuits accusing it of siphoning Americans’ electronic communications to the National Security Agency without warrants.

But with the recent Spygate leaks, including one that all calling metadata of Verizon customers is being forwarded to the NSA, the government is hard-pressed to maintain that line with a straight face.

“By contrast, the recent disclosures have greatly undermined the factual and legal basis for the government defendants’ separate and distinct state secrets motion,” the Electronic Frontier Foundation wrote in a recent court filing.

The EFF’s lawsuit, which has had a tortured history through the courts, is based in part on allegations of internal AT&T documents, first published by Wired, that outline a secret room in an AT&T San Francisco office and others which allegedly route internet traffic to the NSA.

Spygate Leaks Imperil State-Secrets Defense [David Kravets/Wired]


  1. I think that the conceit that they are operating under is that gathering the information is not surveillance. One hand of the operation goes out and cuts deals with various internet companies/telcos, and installs their ‘taps’. Then they start the infopump, and fill warehouses with mountains of data. Is the action of obtaining and storing mundane data actually surveillance, if it is obtained in a totally ad hoc manner, not targeted at any individual citizen, and nobody is reading it anyway?

    Meanwhile, the other hand is actually mining this data. There are companies lining up to try their tools on this data set, as well as a number of very expensive internal projects. There have also been international agreements to share electronic intelligence gathering resources in the past, and there could very well be a further conceit, in that the agency that is actually pulling data on individual US citizens is not a US government agency, but is in fact a ‘third party’ agency that is run by the US, UK, Canadian, Australian and New Zealand governments.

    The previous agreements between these five countries really amounts to a ‘no foul’ agreement, where a friendly government can report intelligence intercepted on a citizen to the government that person is a citizen of, without that friendly country being accused of espionage. This has allowed requests for surveillance to be made informally, and the resulting intel to be submitted formally through official channels. Thatcher had the Canadians intercept the phone conversations of her own cabinet ministers through this system.

    Imagine if this sort of system is moved to the modern paradigm. If database access is shared, and APIs are made available for systems that mine these databases, a government is essentially submitting surveillance requests to *the cloud*. And who owns/is legally responsible for the data in the cloud, or the rights to derivative (surveillance) works from that data? Nobody.

    Sitting through dozens presentations from every conceivable vendor (storage, databases, CRM, business intelligence) over the past few years leaves me in no doubt that government agencies are sitting through the same presentations.

    1. there could very well be a further conceit, in that the agency that is actually pulling data on individual US citizens is not a US government agency, but is in fact a ‘third party’ agency

      Also, what are you all going to do once I sneak my five zettabyte jump drive into the Bumblehive, biotches?

  2. This is all blowing up in the administration’s face, and damaging its credibility both domestically and in foreign relations. And I think we’re getting hints that the administration will back down a bit on this.

    That’s not to say that the whole apparatus will go away in a puff of smoke, but I do think that action’s like the EFF’s suit will help to cut down on the abuses somewhat.

  3. Since they set the levels of secrecy, I don’t see any reason why the DoJs couldn’t just up the ante.  “Sure,” they’ll say “that stuff is out in the open now.  But not the other, other stuff, which we can’t tell you about, and is still protected for reasons of state secrecy.  Please continue things as before, judges.”

  4. This is much like the financial market lately – the actual use is so complex that it’s true to say that “no one ever read that”. Deniability is built in.

    But it doesn’t matter what is real or how they do it Who will trust the US Gov now? This will hurt in Real Money and diplomatic problems – check German visit today.

    Just like the banks, the government has forgotten that its’ business is founded and maintained ONLY by the trust of their customers.  This is nothing new to us citizens, but finally this will start costing Them money – now we may see some changes.

    BTW, does it seem as though Someone told the world to calm down lately? Is Murdoch on vacation?

    1. That’s an interesting point; good ol’ Rupert isn’t so much on vacation as staying out of sight.  With all this NSA stuff, his ears must be burning.

  5. snowden should be promoted. crooks he exposed shold be criminally prosecuted.

    its impossible to prevent/stop all bad things from happening. HOW couldhypocritically spying on everyone prevent crime? DETAILS? EXAMPLES?! even if it could, the risk of people being punished for speech is higher than the chance it would prevent crime. gov spying on everyone could be and has been used to murder(might blame it on defense, suicide, or frame someone), disappear, abuse, arrest, and punish people for speech ,political and reglious beleifs, and association. gov can more easily get away with and conceal crime. if gov thought spying on everyone was good for national security, gov wouldnt have a problem with publisizeing everything about gov and being 100%transparent, w/o non-gov even haveing to ask. it doesnt, becaues it just wants to punish speech.
    plans, plots,and funding “terrorist groups” arnt illegal. freedom of speech. first fire gov workers who plan to commit crimes(exspecially murder)agianst innocent people. some corrupt gov workers wrongly lable law-abideing average people terrorists based on speech or political/religious beleifs, because corrupt gov is terrified of law-abideing people that want to expose and stop corruption. gov who hypocritically searches and seizies w/o reasonable suspcion is a traitor who betrayed their oath to defend the consitution and supreme laws of the land.they’re a tratior for betraying the public lieing to them saying they are there for national security when actualy they breach national secuirty, and only secure gov criminals from being prosecuted. gov workers who hypcoritically spy on the public at large w/o reasonable suspcion, are the enemy. only criminals would say exposeing/leaking evidence of crimes is aiding the enemy because law-abideing people that try to stop crime are a criminal’s enemy. gov is subject to transparency laws that non-gov isnt subject toits legal to share (gov info that is legally sapose to be published) with the publicpublic sector(gov) is sapose to be the public’s employees and be publicly viewable(w some good-reasoned public approved exseptions)non-gov is the private sector-meaning non-gov has the right to privacy. everyone is the public. corrupt gov says: top secret criminal intel gathering programs and gov’s classified crimes if exposed put national security at risk.(actually its the oposite, …its good for national security to expose top secret criminal intel gathering programs. it puts national security at risk for gov to spy on the whole public- it puts criminals at risk of being caught if their crimes are exposed)corrupt gov says: its to keep the country safe.(actually its to keep criminals safe from being legally and rightfully fired and charged)corrupt gov says: were takeing phone records and spying on non-gov at the same time punishing anyone who spys on us. its well known were only collecting info w the intent to use it agianst people, and there’s a high chance it will be used to punish people for speech and association-because it happened before(like the irs scandal(punitivly taxed for poltical beleifs), and punishments could get much worse inlcudeing murder torture and imprisionment for diagreeing w gov)-no need to worry its for your saftey, your dum enough to beleive that right?the only reason to collect info(speech/words) is to use it(in this case to discriminate agianst people based on it)when gov collects unnessicary info-people get punished for their speech and association(irs scandal)gov isnt more moral than non-gov. w/o liberty your not safe. the only point of saftey is to keep your liberty safe and to be safe from haveing your liberty taken away from you. w/o liberty and freedom, whats there to keep safe?nothing.when we have the freedom to do what we want with our private property and bodies as long as it doesnt touch or endanger others private property w/o their permisison, our property is safe from being stollen/taxed, controlled, kidnapped, restricted, trapped, physcially abused, or murdered. gov’s job isnt to collect unnesicary info or search w/o probable causegov has alot more serious crimes it should be going after(like violent offenders, kidnappers) instead of spying on everyonegov’s job is to protect people’s right to not have their private property searched or seized w/o probable cause.
    immediatly fire gov workers who(or think its ok for gov to:) search or seizure w/o probable cause of crimesee something say something-report gov’s suspcious activitywhistle blower law-cant legally get in trouble for reporting crime/gov-misconduct
    its gov’s job to report and try to stop crime/gov-misconduct, and protect everyone=under the law=not letting some get away w the same type of misconduct you dont let others get away with, =no spying on everyone while at the same time disallowing everyone to spy on you
    require gov workers report gov-misconduct and gov’s activity that is suspected to be misconduct or else get fired and owe wage refund. (exsept in cases where your likely to be punished if you reported-however you must still do whatever you can to report in a safe wayallowing criminals to go unpunished puts everyone at risk.require gov workers immediatly investigate reports of gov misconduct and take minor complaints seriouslyput gov under 24-7live public video survailence(exsept w detailed good reason presented to the public to keep certian info secret). reasons for gov secrets shouldnt be secret.make gov delete all info it illegally collected, and info collected that isnt freely accessble to the public(ex buying info from bussiness’s), w/o at least reasonaoble suspision of a crime.

  6. manning should be promoted, the crooks he exposed should be criminally chargedfreeom of speech and freedom of the press=no arresting or fineing people for speech or press. ‘causing intelligence to be published’, ‘transmitting defense information’, are covered under freedom of press and speech. speech. you cant legally be criminally charged w endangering, or aiding the enemy, merely for speech or press. some corrupt gov workers wrongly lable law-abideing average people terrorists based on speech or political/religious beleifs, because corrupt gov is terrified of law-abideing people that want to expose and stop corruption.
    terrorist=someone someone is terrified(scared)of, doesnt=criminal
    reported nazis called jews a threat to national security.
    immediatlyfire gov workers who charge people with ‘aiding the enemy’ merely for leaking evidence of gov’s crimes just because you are labled an enemy doesnt mean your bad, the good guy’s are the bad guy’s enemy. the public and the gov includes criminals/the same cases it might belegal to search and seize if their is probable cause of crime, and record or share that info manning’s search and seizure might be lawful if there was probable cause of a crime or reasonable suspicion. crime includes gov misconduct since gov workers are being paid to do their job, if they dont do their job like their sapose to its fraud/theft.
    manning’s leaked video isreasonable suspision of a crime and (according to my knowledge)probable cause. leaked word docs might have included conspriacy or reported misconduct(both should be reported). it is good order and disapline to expose gov’s crimes, hideing gov’s crimes is wrong. its good to discredit gov members when they commited crimes or arnt doing their job(that is sapose to be protecting people’s rights, not protecting criminals from exposure and proescution)its good to expose info of w reasonable suspcion of a crime with reason to beleive such info could be used agianst criminals. it is mils job to report and stop crime(includeing crime that occurs within mil). manning should be rewarded for exposeing gov’s crimes or what has reasonable suspision to be potential crimesthe law is sapose to apply to everyone = that means no special laws that only apply to mil and no one else.immediatly fire gov workers who press charges against people who search and seize gov’s property w proable cause of finding evidence of a crimecorrupt gov is a hypocrite for wanting to spy on non-gov and disallow non-gov to spy on

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