Many citizens see Edward Snowden as the linchpin that finally led to a flood of challenges and lawsuits against the National Security Agency (NSA) for its indiscriminate search and seizure of Internet browsing data, but the fight has a much longer history. In 2006, watchdog group the Electronic Frontier Foundation (EFF) filed Hepting v. AT&T to address fiber optic tapping. That was defeated and replaced with Jewel v. NSA in 2008. Snowden’s revelations added fuel to the fire, but in February of 2015 a federal court judge ruled against Jewel. Now the EFF is taking their battle for Internet privacy to the court of appeals in hopes of a better outcome.
Jewel got its start as an answer to the Hepting decision. Most of the same AT&T customers simply moved their complaints to the new lawsuit, including the case’s namesake Caroline Jewel. According to the EFF, the collection of “online correspondence, conversations, web searches, reading and other activities” is a breach of the Fourth Amendment, which protects Americans from unreasonable search and seizure. From the EFF’s perspective, while intercepting and copying parts of the Internet backbone stream may be acceptable practice for the NSA, things get messy when the spy agency starts searching this content based on selectors or storing this data for future use. In effect, government agents are poking around in the business of private citizens for specific behavior and then seizing this information without user consent.
As noted by The Register, Jewel was defeated earlier this year in a ten-page ruling by US District Judge Jerry White. The problem? While the court called the arguments of the NSA and other government “persuasive”, White refused to provide a full account of his decision citing the problem that “any possible defenses would require impermissible disclosure of state secret information.” Although White stated that the plaintiffs were unable to establish direct harm caused by NSA data collection, more worrisome was the claim that actually proving their case would have forced the government to disclose exactly what they’d been doing online.
Bottom line? It’s a catch-22: the court argues that plaintiffs don’t have enough information to support assertions of harm using publicly-available data and the files made available by Snowden. The court also acknowledges that evidence to support such claims could exist, but asking the government to defend their methods would put public safety at risk. No surprise, then, that Judge White dismissed the case. But is it any wonder that the EFF is appealing?
Evidence for Appeal?
Early challenges of court decisions haven’t gone well for the EFF and other watchdog groups, but the tide seems to be turning against government spy programs as netizens refuse to take online privacy for granted. In the United Kingdom, for example, Privacy International has launched an official legal challenge to GCHQ’s mass snooping policies, arguing that the government spy agency is starting to see itself as “above the law.” A parliamentary committee called for stronger regulation and transparency when it comes to data collection, but also found that UK intelligence organizations weren’t trying to circumvent existing privacy laws. Simply put? This was a finger wag, a way to chide spy agencies for being too obvious with their methods.
The EFF may run into similar challenges with their Jewel appeal as courts try to dance around the Fourth Amendment while offering tongue-in-cheek criticism of NSA methods. It’s just possible, however, that the sheer volume of public evidence will prompt judges and lawmakers to reexamine the status quo and demand greater scrutiny of agency methods when it comes to monitoring, searching and storing public browsing data.
Thankfully, citizens aren’t helpless even if the appeals court rules against Jewel. More lawsuits are almost certain to follow as an increasingly tech-savvy and privacy-minded public demands answers. Users can also frustrate efforts to illegally tap their data by leveraging Tor-based networks or virtual private networks (VPNs). If the spies don’t like it, let them take you to court.