William E. Binney (right) with colleagues Thomas A. Drake and J. Kirk Wiebe
“On the basis of the documents that I have reviewed, I can advise the Court that the allegations in the Plaintiff’s complaint are true and correct: Defendants are intercepting, accessing and storing Schuchardt’s private communications, without a warrant.” ~ William Binney, Schuchardt v. President of the United States
“The NSA’s current theory of surveillance can be described as “the needle and the haystack” approach. Under this approach, the NSA deems it necessary to acquire and monitor all information . . . on the internet. This includes full content of e-mail, text messages, web search queries, and documents stored online by cloud providers, such as Dropbox. In order to find the proverbial “needle in the haystack,” it is necessary to first collect the haystack.” ~William Binney, Schuchardt v. President of the United States
[CAF Note: When speaking with him this fall, Bill Binney described four litigation efforts to hold the NSA accountable and affidavits that he had provided in two of these cases. I asked attorneys Michele Ferri and Jonathan Lurie if they would provide case summaries and primary documents, including Bill’s affidavits for publication. This will make it easier for officials, attorneys, reporters, researchers and citizens to appreciate and support private efforts to enforce with respect to the NSA.]
By Michele Ferri and Jonathan Lurie
INTRODUCTION
The last decade has seen a number of revelations as to the sheer breadth and intrusiveness of NSA surveillance programs. From William Binney’s testimony on NSA datamining during his 30 plus year career with the NSA to Edward Snowden blowing the whistle on the PRISM program, the information that has come to light has given rise to numerous lawsuits against the NSA and emboldened existing actions. The American Civil Liberties Union (“ACLU”), the Electronic Frontier Foundation (“EFF”), and a number of private citizens have brought lawsuits against the NSA and the U.S. government with the goal of recovering for potential violations of the Fourth Amendment and more.
As you might expect from lawsuits over secret surveillance programs, these lawsuits have moved extremely slowly; facing difficulties in producing specific enough evidence to create standing and overcoming government privilege such as the state secrets program. Many of the lawsuits simply fizzled out in the face of such a protracted and expensive legal battle or have simply been tossed out after motions to dismiss. However, several of these cases, some nearly a decade old now, have produced real changes in how private citizens can bring suits against the government and the NSA over surveillance. Some are even ongoing and may yet see even greater results.
Over the last decade, the lawsuits which have garnered the most noteworthy results and public attention include: ACLU v. Clapper, Jewel v. NSA, Schuchardt v. NSA, and Valdez v. NSA. This article will take a deep dive into the details of these cases and the change they have produced and how they have stood on each other’s shoulders–starting with the oldest of these cases, Jewel v. NSA.
