Court upholds NSA snooping

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A district court in California has issued a ruling in favor of the National Security Agency in a long-running case over the spy agency’s collection of Internet records.

The challenge against the controversial Upstream program was tossed out because additional defense from the government would have required “impermissible disclosure of state secret information,” Judge Jeffrey White wrote in his decision.

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Under the program — details of which were revealed through leaks from Edward Snowden and others — the NSA taps into the fiber cables that make up the backbone of the Internet and gathers information about people's online and phone communications. The agency then filters out communications of U.S. citizens, whose data is protected with legal defenses not extended to foreigners, and searches for “selectors” tied to a terrorist or other target.

In 2008, the Electronic Frontier Foundation (EFF) sued the government over the program on behalf of five AT&T customers, who said that the collection violated the constitutional protections to privacy and free speech.

But “substantial details” about the program still remain classified, White, an appointee under former President George W. Bush, wrote in his decision. Moving forward with the merits of a trial would risk “exceptionally grave damage to national security,” he added.

The government has been “persuasive” in using its state secrets privilege, he continued, which allows it to withhold evidence from a case that could severely jeopardize national security.   

In addition to saying that the program appeared constitutional, the judge also found that the AT&T customers did not even have the standing to sue the NSA over its data gathering.

While they may be AT&T customers, White wrote that the evidence presented to the court was “insufficient to establish that the Upstream collection process operates in the manner” that they say it does, which makes it impossible to tell if their information was indeed collected in the NSA program.  

The decision is a stinging rebuke to critics of the NSA, who have seen public interest in their cause slowly fade in the months since Snowden’s revelations.

The EFF on Tuesday evening said that it was considering next steps and noted that the court focused on just one program, not the totality of the NSA’s controversial operations.

“It would be a travesty of justice if our clients are denied their day in court over the ‘secrecy’ of a program that has been front-page news for nearly a decade,” the group said in a statement.

“We will continue to fight to end NSA mass surveillance.”

The name of the case is Jewel v. NSA.