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
guardian.co.uk, 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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