United States Government Surveillance Programs – Part I

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The United States government has implemented surveillance programs to promote national security. These programs are designed to gather and process electronic information that could arguably assist government agencies in their efforts to enhance national security. However, there is an argument being made that the federal government is using the resources of major communication service providers to obtain records of citizens without legal justification. In other words, the government is engaging in unlawful surveillance programs without probable cause.

What kind of programs have been implemented?

The National Security Agency (“NSA”) has been intercepting internet communications for several years without fully disclosing the nature and extent of its surveillance programs to the general public. It’s also collecting other types of communication records such as phone records and related electronic information. There is evidence that proves AT&T is cooperating with government surveillance programs. The evidence seems to indicate the telecommunication giant has installed fiberoptic splitters to copy and send information to the government. Experts have argued this kind of activity is beyond “wiretapping” since it’s surveilling the entire communication channels without a warrant. So, in essence, the government is engaging in the mass collection of telephone metadata of all domestic customers. The government officials have argued that this type of broad surveillance is justified under the USA Patriot Act which is meant to deter and punish terrorism and enhance law enforcement investigations for the following reasons:

  1. To strengthen measures to prevent, detect and prosecute international money laundering and financing of terrorism;
  2. To subject to special scrutiny foreign jurisdictions, foreign financial institutions, and classes of international transactions or types of accounts that are susceptible to criminal abuse;
  3. To require all appropriate elements of the financial services industry to report potential money laundering; and
  4. To strengthen measures to prevent use of the domestic financial system for personal gain by corrupt foreign officials and facilitate repatriation of stolen assets to the citizens of countries to whom such assets belong.

What are the relevant laws and recent court cases?

The USA Patriot Act is a federal statute that is designed to prevent terrorism and international crimes. It was amended several times after the September 11, 2001. Thereafter, several lawsuits were filed to challenge NSA’s surveillance programs. For example, Jewel v. National Security Agency, 965 F. Supp. 2d 1090 (N.D. Cal. 2013), was a putative class action filed in the Northern District of California on behalf of a group of plaintiffs who claimed were being damaged as a result of the government’s unlawful surveillance programs. The case was filed after an AT&T whistleblower submitted documents to prove its previous employer – i.e., AT&T – was cooperating with the government. However, after several years of litigation, the case was dismissed for lack of standing wherein the court held that plaintiffs’ claims amounted to a “general grievance” against the government.

In Shubert v. Obama (Case No. 07-CV-00693-JSW), the class plaintiffs sued the President of the United States, National Security Agency, and Attorney General for the violations of their constitutional rights. The court reviewed the pleadings and motions of the interested parties and ultimately ruled the plaintiffs did not establish a sufficient factual basis to sue under the Fourth Amendment, and even if they did establish sufficient facts, the claim would be dismissed since any defense would impermissibly disclose state secret information.

In First Unitarian v. National Security Agency (Case No. 4:13-CV-03287 – N.D. Cal. 2013), the class plaintiffs filed a lawsuit against the government to prevent it from engaging in a mass call-tracking program. They sought to compel the government to stop its surveillance programs that exceeded the statutory authority under the Foreign Intelligence Surveillance Act (“FISA”) which violated the First, Fourth, and Fifth Amendments. However, this case is ongoing at this time as the court has not made a final decision on the merits.

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