Wednesday, July 17, 2013

Slew of court challenges threaten NSA's relationship with tech firms


Slew of court challenges threaten NSA's relationship with tech firms


Unlikely coalition takes NSA - and the telecoms firms who own much of the

web's infrastructure - to court over bulk surveillance

    Spencer Ackerman

        Spencer Ackerman     , Wednesday 17 July 2013 08.37 EDT     


NSA collecting phone records of millions of Americans daily

The lawsuits threaten to split the financial and legal interests of the

telecoms and ISPs from those of the NSA.


An avalanche of legal challenges to the National Security Agency threaten to

upend one of the most delicate balances the surveillance agency labors to

strike: its critical relationship with telecommunications and internet



An unlikely coalition of advocacy groups are taking the NSA to court,

claiming the bulk surveillance it conducts on Americans phone records and

their online habits is unconstitutional. One of them is aiming beyond the

NSA itself, and at the companies the NSA partners with for much of that



The NSA's relationship with those companies is critical, since much of the

telecommunications infrastructure of the United States is owned and operated

by private firms. While the lawsuits face significant obstacles, they stand

a chance of splitting the financial and legal interests of the telecoms

firms and and Internet Service Providers from those of the NSA - something

that could restrict the surveillance efforts more than any legislation

Congress is likely to pass.


"Without the companies' participation," said former NSA codebreaker William

Binney, "it would reduce the collection capability of the NSA



The lawsuits, which take several different paths to blocking the bulk

surveillance, are proliferating quickly.


One filed on Tuesday in a California federal court united a coalition of 19

gun owners, human-rights groups, Muslim organizations, environmentalists and

marijuana legalization advocates seeking a "preliminary and permanent

injunction" against NSA surveillance. Their claims about the surveillance

violating their speech and privacy rights echoed another suit filed last

month in a New York federal court by the ACLU challenging the programs'



Similarly, a suit first filed in California five years ago was resurrected

last week after a judge ruled that revelations about bulk surveillance

published by the Guardian and the Washington Post and confirmed by the

government prevent the Justice Department from quashing the suit as a state

secret. The Electronic Privacy Information Center petitioned the supreme

court last week to "vacate an unlawful order" by the secretive Fisa court

for mass phone records from Americans.


Those cases still face the considerable challenges of fighting and defeating

what are sure to be vigorous Justice Department challenges to their

viability. Thus far, the courts have most often ruled for the government in

NSA surveillance suits. Unlike in the past, however, the NSA documents

published by the Guardian and the Post revealed for the first time that

telecoms and Internet Service Providers were directly providing NSA with

bulk customer information, allowing those customers - including the ACLU, a

Verizon customer - standing to sue.


But even if all those cases fail, there's another legal avenue to contest

the surveillance, albeit a difficult one: lawsuits against the companies



That's what the conservative group Judicial Watch is attempting. The

organization filed a class-action suit last month against the internet

companies named as participating in the NSA's Prism program, including

Microsoft, AOL, Facebook, Google and Apple. Cases like that have long

frightened the NSA.


The NSA and its allies in Congress have gone to great lengths to legally

shield the private-sector telephone and internet companies it works with. A

2008 law that broadened the scope of the Foreign Intelligence Surveillance

Act, known as the Fisa Amendments Act, retroactively immunized any

participating telecom firm from legal liability. According to an internal

NSA history of the program, several firms specifically requested NSA compel

them to comply through Fisa court orders, fearing an eventual court case.


Underscoring how delicately the NSA treats the sanctity of its

private-sector partners, the NSA would only refer to them even in a

classified internal document as "Company A" and similar pseudonyms.


That sensitivity exists because the telecommunications firms largely own and

operate the infrastructure used to make phone calls, send emails and conduct

web searches, unlike in authoritarian countries like China, North Korea and

the former East Germany. Without the companies' participation, the NSA could

still perform so-called "upstream" collection, such as accessing data as it

transmits, for instance, across fiberoptic cables before the companies

process them. "But they can't get a complete copy of everything without

going to the companies," Binney said.


Lawsuits against the companies place tensions, both legal and financial, on

their partnership with NSA. Even the threat of spending money in court to

quash customer lawsuits carries the potential for the companies to reassess

the scope of their longstanding relationships with the surveillance agency.


The lawsuits are a more direct challenge to the NSA than the convoluted and

uncertain legislative or political processes. While several senators and

members of Congress are talking about revising the Patriot Act to restrict

bulk telephone records collection, support in Congress for the NSA runs

deep, and it is difficult to forecast what reforms, if any, might pass.

Similarly, the secret Fisa Court bristles at accusations that it's a rubber

stamp, but it approves almost all surveillance requests.


That leaves citizens upset with the surveillance to pursue their rights as

customers of the companies participating with the NSA.


"If you want to raise costs to the companies participating with NSA, you

raise the time and effort they spend defending themselves from allegations

that their participation in NSA surveillance programs is unlawful," said

Amie Stepanovich, a lawyer with the Electronic Privacy Information Center.

"But the downfall of suing the companies are the companies' inevitable

filings that they were just complying with the law."


Yet the obstacles to suing the companies are significant. The 2008 law

explicitly says: "No cause of action shall lie in any court against any

electronic communication service provider for providing any information,

facilities, or assistance."


Alex Abdo, a lawyer with the ACLU working on the civil liberties group's

challenge to the NSA, said the immunization provisions are not necessarily

insurmountable for suing the companies.


"You could still sue Verizon and ask them to stop, even if you're not asking

for damages," Abdo said. "I don't think the immunity provision applies to



Even as the scope of the companies' liability is set to be litigated, some

of the NSA's partners are attempting to limit their customers' discontent.

On Tuesday, Microsoft publicly asked Attorney General Eric Holder to lift

the veil of secrecy over its cooperation with NSA so it can "publish the

volume of national security requests we have received." That followed a

Monday ruling by the Fisa court for the Justice Department to release

information showing Yahoo at times resisted cooperation even when compelled

by the court.



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