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Lawsuit on NSA Domestic Surveillance Can Go Forward, Court Rules

Judge Vaughn Walker of the Northern District of California handed down an important ruling today rejecting motions to dismiss EFF’s lawsuit against AT&T for its participation in the NSA domestic surveillance and call records program.

It’s a very long opinion, but here’s the gist of it: Judge Walker rejected DOJ’s argument that the suit had to be dismissed outright under the state secrets privilege. Walker ruled that enough of the various programs had been acknowledged by the government and AT&T that the existence of the programs wasn’t a state secret. I assume an appeal will be coming soon, but in the meantime the case will be set to go on to the discovery stage. Notably, the state secrets privilege will continue to play a key role at that stage: the gist of Walker’s opinion is that he’ll scrutinize each discovery request for privilege rather than dismiss the case outright at the beginning.

The opinion also has an interesting section on the Fourth Amendment claims in the complaint. It’s really just dicta, as Walker had already rejected the theory which would have made the issue relevant.  But AT&T had argued that it was immune from suit under the qualified immunity doctrine because the Fourth Amendment issues in the case were not “clearly established.” After ruling that AT&T was not entitled to qualified immunity in any event, Judge Walker added a “note” rejecting the claim on the merits of the Fourth Amendment issue. Here’s the discussion:

The court also notes that based on the facts as alleged in plaintiffs’ complaint, AT&T is not entitled to qualified immunity with respect to plaintiffs’ constitutional claim, at least not at this stage of the proceedings. Plaintiffs’ constitutional claim alleges that AT&T provides the government with direct and indiscriminate access to the domestic communications of AT&T customers. See, e g, FAC, ¶ 42 (“On information and belief, AT&T Corp has provided and continues to provide the government with direct access to all or a substantial number of the communications transmitted through its key domestic telecommunications facilities, including direct access to streams of domestic, international and foreign telephone and Internet communications.”); id, ¶ 78 (incorporating paragraph 42 by reference into plaintiffs’constitutional claim).

In United States v United States District Court, 407 US 297 (1972) (Keith), the Supreme Court held that the Fourth Amendment does not permit warrantless wiretaps to track domestic threats to national security, id at 321, reaffirmed the “necessity of obtaining a warrant in the surveillance of crimes unrelated to the national security interest,” id at 308, and did not pass judgment “on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country,” id. Because the alleged dragnet here encompasses the communications of “all or substantially all of the communications transmitted through [AT&T’s] key domestic telecommunications facilities,” it cannot reasonably be said that the program as alleged is limited to tracking foreign powers. Accordingly, AT&T’s alleged actions here violate the constitutional rights clearly established in Keith. Moreover, because “the very action in question has previously been held unlawful,” AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.

(paragraph break and emphasis added)

This Fourth Amendment discussion seems somewhat mystifying to me. The wiretapping in Keith is distinguishable from the alleged facts in the NSA program on a number of possible fronts, so it seems quite odd to simply announce without analysis that “the very action” has been held to be unconstitional. To pick just one front, there is a foundational difference in electronic surveillance between targeting particular evidence and incidentally collecting evidence to enable the targeting of other evidence. Judge Walker’s passage seems to simply ignore that difference, which is hard to explain.

Nonetheless, this is (as far as I know) the first judicial opinion to express a view of the merits of the NSA program. Even if it’s dicta, the reasoning is unimpressive, and it is based only on facts alleged in the EFF’s complaint, Judge Walker’s statement that it “cannot seriously [be] contended” that “the alleged domestic dragnet was legal” based on the complaint seems likely to impact the debate.

Finally, it’s worth keeping in mind that this opinion may be very temporary. First, I gather an appeal is coming soon (interlocutory appeals are usually permitted in this sort of context, at least as I understand it). Second, if passed into law, Senator Specter’s NSA bill will pull jurisdiction over these issues away from Judge Walker, as well as the Ninth Circuit on appeal, and will ship the case to the FISA Court of Review instead. Judge Walker’s opinion today is a good hint of why that may make a considerable difference in the outcome of the litigation.

Thanks to Deven Desai for the link.