The Electronic Frontier Foundation’s (EFF) lawsuit Jewel v. NSA was revived by the 9th Circuit Court of Appeals yesterday, blocking the government’s attempt to bury the case.
The court wrote in the conclusion to its opinion, “We REVERSE the district court’s dismissal of Jewel’s complaint on the ground that she lacked standing. We REMAND with instructions to consider, among other claims and defenses, whether the government’s assertion that the state secrets privilege bars this litigation.”
Jewel v. NSA was brought by the EFF “on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records” in the warrantless wiretapping program.
The lawsuit also targets those individuals “responsible for creating, authorizing, and implementing the illegal program, including former President George W. Bush, former Vice President Dick Cheney, Cheney’s former chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales, and other individuals who ordered or participated in the warrantless domestic surveillance.”
EFF, of course, is viewing this as a great victory.
“Since the dragnet spying program first came to light, we have been fighting for the chance to have a court determine whether it is legal,” said EFF Legal Director Cindy Cohn. “Today, the Ninth Circuit has given us that chance, and we look forward to proving the program is an unconstitutional and illegal violation of the rights of millions of ordinary Americans.”
However, the 9th Circuit upheld the district court’s dismisall of Hepting v. AT&T, which was the first lawsuit against a telecom over its participation in the NSA’s massive domestic warrantless wiretapping program. At issue in Hepting v. AT&T was the retroactive immunity offered to the telecoms, which prevents customers from suing AT&T, for example, over their participation in the NSA program.
“By passing the retroactive immunity for the telecoms’ complicity in the warrantless wiretapping program, Congress abdicated its duty to the American people,” said EFF Senior Staff Attorney Kurt Opsahl. “It is disappointing that today’s decision endorsed the rights of telecommunications companies over those over their customers.”
While this is certainly disappointing, at least Jewel v. NSA will be allowed to proceed, giving American citizens the opportunity to critique the realities of domestic wiretapping of the increasingly ubiquitous smartphone.