Ninth Circuit lets lawsuit proceed against NSA over warrantless wiretapping


A civil suit against the government filed over National Security Agency warrantless wiretapping can proceed, ruled the Ninth Circuit Court of Appeals in a Dec. 29 opinion (.pdf).

The opinion sends back to a lower federal court a lawsuit filed by Petaluma, Calif., resident Carolyn Jewel on behalf of herself and subscribers to AT&T telephone or Internet services. The U.S. District Court for Northern California dismissed (.pdf) in 2010 Jewel's suit on the grounds that the harm alleged was "a generalized grievance shared substantially equal measure by all or a large class of citizens."

In remanding Jewel's suit back to the district court, the Ninth Circuit disagreed. Judge M. Margaret McKeown, who wrote the opinion on behalf of a three-judge panel including herself, Harry Pregerson and Michael Hawkins, said Jewel's claims "are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury."

"Significantly, Jewel alleged with particularity that her communications were part of the dragnet. The complaint focused on AT&T and was not a scattershot incorporation of all major telecommunications companies or a blanket policy challenge," McKeown added.

The opinion also noted the suit focuses on blanket wiretapping that allegedly occurred in an AT&T facility located on Folsom St. in San Francisco starting in October 2001.

According to former AT&T technician Mark Klein, AT&T routed copies of all Internet traffic transiting through the Folsom St. facility to a secret room controlled by the NSA. President George W. Bush acknowledged in 2006 he authorized a surveillance program to detect and intercept communications involving U.S. residents, but emphasized that "this is a targeted program to intercept communications in which intelligence professionals have reason to believe that at least one person is a member or agent of al Qaeda or a related terrorist organization" and that one party involved in the surveilled communications had to be located outside the United States.

The Obama administration has sought to dismiss the lawsuit on state secrets grounds and the Ninth Circuit opinion says the district court will have leave to consider that argument.

The appeals court also dismissed (.pdf) Dec. 29 a consolidated suit filed against telecommunication companies themselves for their role in warrantless surveillance on the grounds that Congress has provided the companies with retroactive immunity.

For more:
- download the Ninth Circuit's Dec. 29 ruling on Jewel v. National Security Agency from the Electronic Frontier Foundation website (.pdf)
- download the Ninth's Circuit's Dec. 29 ruling on Hepting v. AT&T (.pdf)

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