Snowden leaks open a Pandora’s box of lawsuits against government surveillance

The recent disclosures made by National Security Agency leaker Edward Snowden have generated commotion in Congress and the White House alike. Will the United States judicial branch be next to weigh in with what could be the most colossal response yet?

The Department of Justice has asked for the 30-year-old former
Booz Allen Hamilton worker to be extradited to the US to face
charges of espionage, and members of both the House and Senate
have already held their share of emergency hearings in the wake
of Snowden’s series of disclosures detailing the vast
surveillance programs waged by the US in utmost secrecy. But with
the executive and legislative branches left worrying about how to
handle the source of the leaks – and if the policies publicized
should have existed in the first place – the courts could soon
settle some disputes that stand to shape the way the US conducts
surveillance of its own citizens.

Both longstanding arguments and just-filed claims have garnered
the attention of the judicial branch in the weeks since the
Guardian newspaper first began publishing leaked NSA documents
attributed to Snowden on June 6. But while the courts have relied
previously on stalling or stifling cases that challenge Uncle
Sam’s spy efforts, civil liberties experts say the time may be
near for some highly anticipated arguments to finally be heard.

Cindy Cohn, the legal director of the Electronic Frontier
Foundation, told the Washington Post that the NSA leaks credited
to Snowden have been a “tremendous boon” to the plaintiffs
in recently filed court cases challenging the surveillance state.
The courts are currently pondering at least five important cases,
Cohn told the Post, which could for once and for all bring some
other issues up for discussion.

Since June 6, the American Civil Liberties Union, a Verizon Wireless
customer and the founder of conservative group Judicial Watch
have all filed federal lawsuits against the government’s
collection of telephony metadata, a practice that puts basic call
records into the government’s hands without a specific warrant
ever required and reported to the media by Mr. Snowden. Larry
Klayman of Judicial Watch has also sued over another revelation
made by Snowden – the PRISM Internet eavesdropping program – and
the Electronic Privacy Information Center, or EPIC, has asked the
Supreme Court to vacate the order compelling Verizon Business Network
Services to send metadata to the feds.

Electronic Frontier Foundation`s logo

Perhaps most important, however, is a California federal court’s
recent decision to shutdown the government’s request to stop the
case of Jewel vs. NSA from proceeding. That debate first
began in 2008 when Jewel, a former AT&T customer, challenged
the government’s “illegal and unconstitutional program of
dragnet communications surveillance
” as exposed by a
whistleblower at the telecom company. That case has seen
roadblock after roadblock during the last five years, but all
that changed earlier this month. The government long argued
that Jewel v. NSA can’t go up for discussion because the
issues at hand are privileged as ‘state secrets’ and can’t be
brought into the public realm.

“[T]he disclosure of sensitive intelligence sources and
methods . . . reasonably could be expected to cause exceptionally
grave harm to national security
,” the government wrote in one
earlier filing. “The very purpose of these
cases is to put at issue whether the NSA undertook certain
alleged activities under presidential authorization after 9/11,
and whether those activities continue today. At every stage, from
standing to the merits, highly classified and properly privileged
intelligence sources and methods are at risk of disclosure. The
law is clear, however, that where litigation risks or requires
the disclosure of information that reasonably could be expected
to harm national security, dismissal is required
.”

Following Snowden’s recent disclosures, though, Judge Jeffrey
White of the Northern District of California ruled on July 8 that
there’s a way for those cases to still be heard.

The court rightly found that the traditional legal system can
determine the legality of the mass, dragnet surveillance of
innocent Americans and rejected the government’s invocation of
the state secrets privilege to have the case dismissed
,” the
EFF’s Cohn, who is working on the case, said in a statement
issued at the time of the ruling. “Over the last month, we
came face-to-face with new details of mass, untargeted collection
of phone and Internet records, substantially confirmed by the
Director of National Intelligence. Today’s decision sets the
stage for finally getting a ruling that can stop the dragnet
surveillance and restore Americans’ constitutional rights
.”

Sen. Ron Wyden (Chip Somodevilla / Getty Images / AFP)

Weighing in weeks later to the Post, Cohn said that outcome could
have more of an impact than many might imagine. “It’s
tremendous, because anything that allows these cases to proceed
is important
,” she said.

Speaking to the New York Times this week, American Civil
Liberties Union attorney Jameel Jaffer said that until now the
government has operated a “shell game” to shield it’s
surveillance programs from litigation. “[T]he statute has been
shielded from judicial review, and controversial and far-reaching
surveillance authorities have been placed beyond the reach of the
Constitution
,” he said.

Should Cohn’s prediction come true, though, the courts could
decide to weigh in and reshape the way the government currently
conducts surveillance.

According to University of Pittsburgh law professor Jules Lobel,
a victory there could come in more than one way. “There is a
broader function to these lawsuits than simply winning in
court
,” he told the Post. “The government has to respond,
and forcing them to go before a court might make them want to
change aspects of the programs
.”

The government does things to avoid embarrassment,’’ he
added, “and lawsuits are a key pressure point.’’

Interviews to the Post and the Times come just days after Sen.
Ron Wyden (D-Oregon), a long-time member of the Senate
Intelligence Committee, said he thought the revelations made by Snowden may
influence the White House to reconsider their surveillance
practices before the courts can even have their chance.

I have a feeling that the administration is getting concerned
about the bulk phone records collection, and that they are
thinking about whether to move administratively to stop it
,”
Sen. Wyden told the Times.

I think we are making a comeback,” he said.

Republished with permission from: RT