Appeals Court Revives EFF’s Challenge to Government’s Massive Spying Program

Justices Find that Spied-On Telephone Customers Have the Right to Sue

Electronic Frontier Foundation,

San Francisco – The 9th U.S. Circuit Court of Appeals today blocked the government’s attempt to bury the Electronic Frontier Foundation’s (EFF’s) lawsuit against the government’s illegal mass surveillance program, returning Jewel v. NSA to the District Court for the next step.

The court found that Jewel had alleged sufficient specifics about the warrantless wiretapping program to proceed. Justices rejected the government’s argument that the allegations about the well-known spying program and the evidence of the Folsom Street facility in San Francisco were too speculative.

“Since the dragnet spying program first came to light, we have been fighting for the chance to have a court determine whether it is legal,” said EFF Legal Director Cindy Cohn. “Today, the Ninth Circuit has given us that chance, and we look forward to proving the program is an unconstitutional and illegal violation of the rights of millions of ordinary Americans.”

Also today, the court upheld the dismissal of EFF’s other case aimed at ending the illegal spying, Hepting v. AT&T, which was the first lawsuit against a telecom over its participation in the dragnet domestic wiretapping. The court found that the so-called “retroactive immunity” passed by Congress to stop telecommunications customers from suing the companies is constitutional, in part because the claims remained against the government in Jewel v. NSA.

“By passing the retroactive immunity for the telecoms’ complicity in the warrantless wiretapping program, Congress abdicated its duty to the American people,” said EFF Senior Staff Attorney Kurt Opsahl. “It is disappointing that today’s decision endorsed the rights of telecommunications companies over those over their customers.”

Today’s decision comes nearly exactly six years after the first revelations of the warrantless wiretapping program were published in the New York Times on December 16, 2006. EFF will now move forward with the Jewel litigation in the Northern District of California federal court. The government is expected to raise the state secrets privilege as its next line of defense but this argument has already been rejected in other similar cases.

For the full opinion in Jewel:

For the full opinion in Hepting:


Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation

Personal Editorial Note: As intrepid journalists and researchers keep writing and we at keep publishing, together we continue our efforts to shine light into the darkness and thus create a better world, albeit through sometimes scary — and more so every day — technological waters. I for one am very grateful EFF has got our collective back! EFF has done amazing work. For instance, just look at some of their Whitepapers, like the Surveillance Self Defense Project or Know Your Rights, or Patterns of Misconduct: FBI Intelligence Violations from 2001 – 2008. If you are able, I encourage you to consider supporting this amazing organization HERE.

No, dear reader, I do not have any kind of personal relationship with EFF that leads me to encourage your support. But I have had quite a few personal “opportunities” during these years of work toward 9/11 truth to learn just how valuable my Fourth Amendment rights WERE, and to experience the stunning, horrifying reality of learning I did NOT have those rights anymore. Obviously, I feel strongly about this. But these “Post-9/11 World” changes do not affect only some of us, and the work EFF does is for all of us. The right to be secure in your person, in your home, including on your own computer and phone, must never be taken for granted. Fight for it. ~
Janice Matthews