Is Our Judiciary in Bed with the NSA?

From Charles Dickens's Bleak House we learned that some litigation can continue forever, enriching only the lawyers on both sides.  In a case still pending in federal court in California –  Jewel v. NSA – we now are learning that even highly meritorious litigation against the government can be dragged out by government lawyers until the plaintiffs' lawyers run out of money.

The Jewel case was filed in 2008.  It was sponsored by the Electronic Frontier Foundation as a challenge to the NSA's dragnet surveillance of internet communications.  The twists and turns of this case demonstrate how difficult it can be to force federal judges to confront the unconstitutionality of illegal actions by federal agencies – when the agency's defense is "national security."

In 2010, then-district judge Vaughn Walker of the U.S. District Court for the Northern District of California held that the plaintiffs did not have standing to sue because the rights of too many persons were violated to allow any one person to have the type of "concrete and particularized injury" constituting a basis for standing.   (This is the same federal district judge who came out of the closet only after ruling against marriage in Hollingsworth v. Perry.)

On appeal in 2011, the Ninth Circuit reversed Judge Walker's ruling, holding that the plaintiffs' complaint clearly met the test for standing, since it properly had alleged that the NSA seized their communications when it intercepted internet traffic.  The test devised by Judge Walker was rejected out of hand for the commonsense reason that "the fact that a harm is widely shared does not necessarily render it a generalized grievance."

The case was then remanded to the district court.  By February 2015, Judge Walker had resigned, but another district judge again dismissed the case.  This judge claimed that the plaintiffs had failed to prove standing with evidence, because they could not show exactly what the NSA did with the internet traffic that it unconstitutionally intercepted.

However, the court of appeals previously had determined the plaintiffs had standing because they alleged that the government seized their communications.  Thus, it was of no significance that plaintiffs had not proved when and how the government actually searched their communications after it seized them. 

On August 17, 2015, our law firm filed one of only two amicus curiae briefs in the Ninth Circuit supporting the second appeal.  (The other brief was filed by the National Association of Criminal Defense Lawyers.) 

Our brief argued that the NSA's mass surveillance state is per se an unreasonable search and seizure under the Fourth Amendment.  As the Supreme Court recently re-recognized in U.S. v. Jones, 565 U.S. ___ (2012) and Florida v. Jardines, 569 U.S. 1 (2013), the Fourth Amendment foremost protects property and property interests – not just some amorphous expectation of privacy. 

In our brief, we argued that a digital dragnet of internet communications violates the senders' and recipients' property rights by trespassing on the communications that they have contracted with their internet providers to transmit.  It does not matter whether the government physically intruded on plaintiffs' physical property, as the Supreme Court has recognized that trespasses can occur even when they are not visible to the naked eye. 

Further, we argued that NSA mass surveillance is nothing more than a general warrant to rummage around in the private affairs of Americans, looking for evidence of anything at all and nothing in particular – all of which is prohibited by the particularity requirement of the Fourth Amendment.

Finally, our brief countered the district court's position that the government could hide behind the "state secrets doctrine" to cover up grave, unprecedented, and ongoing constitutional violations.  The government has all but admitted that it violated the Fourth Amendment, and this cannot be excused on the theory that divulging the scope of its crimes would harm national security.  Indeed, our amicus brief noted, protection of the Constitution is our country's foremost national security interest.

During briefing, in an attempt to prevent the Ninth Circuit from addressing the merits of the case, the government filed a motion to dismiss the appeal.  Remarkably, on December 18, 2015, the Ninth Circuit granted the government's motion on the ground that the Fourth Amendment issues in the case that we addressed were intertwined with other issues not on appeal.  The court decided that issuing a ruling on the Fourth Amendment issues "would only prolong final resolution of the case." 

With the case back in the district court, the district judge has not yet agreed to lift the stay on discovery, making it extremely difficult for the plaintiffs to obtain evidence in an effort to prove their case.  Our view is that the Jewel case clearly would lead to an injunction against NSA dragnet surveillance of Americans – if the court were ever willing to consider the merits of the case.  (See Timeline of NSA Domestic Spying.)

Sadly, this case is demonstrating that, in the hands of the modern federal judiciary, the U.S. Constitution is proving to be a mere "parchment barrier" against government crimes, so long as the government claims "national security."

Our brief was filed on behalf of the U.S. Justice Foundation; Gun Owners of America, Inc.; Gun Owners Foundation; Arizona State Chapter of the Association of American Physicians and Surgeons; Free Speech Coalition; Free Speech Defense and Education Fund; The Lincoln Institute for Research and Education; Downsize DC Foundation; The Abraham Lincoln Foundation for Public Policy Research, Inc.; Institute on the Constitution; Conservative Legal Defense and Education Fund; and Policy Analysis Center.

Robert J. Olson obtained his undergraduate degree from the College of William and Mary and his law degree from George Mason Law School.  William J. Olson obtained his undergraduate degree from Brown University and his law degree from the University of Richmond.  Together they practice law defending against government excess, at William J. Olson, P.C.  They can be reached at or