Jewel v. NSA: Americans (Still) Deserve Their Day in Court

With little explanation, the Ninth Circuit today affirmed the district court’s decision dismissing our landmark challenge to the US government’s mass communications surveillance, Jewel v. NSA. Needless to say, we are extremely disappointed.  Today’s decision renders government mass surveillance programs essentially unreviewable by U.S. courts, since no individual will be able to prove with the certainty the Ninth Circuit required that they were particularly spied upon.  This hurdle is insurmountable, especially when such programs are shrouded in secrecy, and the procedures for confronting that secrecy are disregarded by the courts.

Though we filed our landmark Jewel v. NSA case in 2008, no court has yet ruled on the merits – whether the mass spying on the Internet and phone communications of millions of Americans violates U.S. constitutional and statutory law. Instead, despite the enormous amount of direct and circumstantial evidence showing our clients’ communications swept up by the NSA dragnet surveillance, along with those of millions of other Americans, the trial and appeals courts still found that the plaintiffs lacked legal “standing” to challenge the practices.

As we said in our brief to the Ninth Circuit, this dismissal “hands the keys to the courthouse to the Executive, making it impossible to bring any litigation challenging the legality of such surveillance without the Executive’s permission.  It blinds the courts to what the Executive has admitted: the NSA has engaged in mass surveillance of domestic communications carried by the nation’s leading telecommunications companies, and this surveillance touches the communications and records of millions of innocent Americans.”

This fight has been long and hard. But we remain determined to ensure that the network we all increasingly rely on in our daily lives—for communicating with our families, working, participating in community and political activities, shopping, and browsing—is not also an instrument subjecting all of our actions to NSA mass surveillance. We are evaluating the options for moving the case forward so that Americans can indeed have their day in court.