updated 07:20 pm EST, Thu December 29, 2011
EFF greenlit to sue NSA over wiretaps
The Electronic Frontier Foundation confirmed a partial win in trying to combat warrantless wiretapping. While it had lost one appeal for carrier immunity, its representative Caroline Jewel and others were cleared by a Ninth US Circuit Court of Appeals to sue the NSA, former President George W. Bush, much of the top Bush administration, and President Obama for allegedly violating the US Constitution's rights to association and reasonable search and seizure. The court had decided that there was enough specific detail about the program to go ahead with a complaint directly against the government.
The government's defense had contended that the accusations were speculative. It also claimed that many of the challenges were protected by state secrets laws that let it keep details under wraps. Appeals judges rejected that idea, pointing out that an open accusation of constitutional violation with a direct example and link to the government trumped attempts to dismiss the case.
EFF Senior Staff Attorney Kurt Opsahl still found it "disappointing" that the other case upheld carrier immunity, but the advocacy group as a whole was happy to continue to trial and expected the state secrets tactic to struggle in court.
Both the Jewel case and its pair came in the wake of a key discovery at an AT&T building in San Francisco, where a whistleblower became aware of wiretapping equipment being installed on a switch in a "secure room." It quickly became clear that it was part of a country-wide process where the NSA and other agencies could tap wide swaths of communication without a warrant. The New York Times published many of the details in December 2006 and made it difficult for the US government to deny any actions.