Court won’t reconsider ruling upholding NSA spying

A federal appeals court on Friday declined to take up a lower court’s decision upholding National Security Agency surveillance, in a blow to privacy advocates who have called the agency’s data collection unconstitutional.

In an order, Judge M. Margaret McKeown of the Ninth Circuit Court of Appeals declared that critics of the NSA could not get a final judgment on just one component of their sweeping lawsuit. 

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The potential unconstitutionality of the NSA’s Upstream Internet collection could not be disentangled from the broader set of questions about the spy agency’s collection of people’s records, McKeown insisted.

As such, the matter should be considered alongside the full set of 17 charges brought against the NSA seven years ago, she ruled, and not in a “piecemeal” fashion, as the lawsuit attempted to do.

“Both sides point fingers as to why no final decision has been reached,” McKeown wrote in Friday’s order. “We do not take sides in that debate, except to say that the parties’ and judicial resources would be better spent obtaining a final judgment on all of the claims, instead of detouring to the court of appeals for a piecemeal resolution of but one sliver of the case.”

The lawsuit, Jewel v. NSA, was first launched in 2008, when the Electronic Frontier Foundation (EFF) sued the NSA and multiple government officials on behalf of a handful of AT&T customers who claimed that the NSA was unconstitutionally spying on Americans’ cellphones and Internet browsing.

Under the Upstream program, the NSA taps into fiber optic cables to search for phone numbers or email addresses associated with foreigners that the government suspects may be tied to terrorism or foreign intelligence.

The NSA program has become a prime target for civil libertarians. While the program is prohibited from specifically targeting Americans, the NSA can pick up their information “incidentally.” Critics decry that as a “backdoor search loophole” that allows the NSA to collect Americans’ communications without obtaining a warrant.

After a long legal battle, the EFF attempted to break off a part of its suit claiming that the agency’s collection of Internet records, in particular, violated the Fourth Amendment right to privacy.

However, the EFF was "unconvincing" in its claim that the violation of Americans’ Fourth Amendment rights is “factually distinct” from the rest of its case, McKeown declared on Friday.

“Because the Fourth Amendment question is intertwined with several other issues that remain pending in district court and because this interlocutory appeal would only prolong final resolution of the case, we … dismiss the appeal for lack of jurisdiction,” she added.

A district court judge ruled on behalf of the NSA in February, claiming that the government would have to divulge “state secrets” in order to continue with the suit. The lower court also declared that the five people did not have standing to sue the NSA, because they could not prove how the Upstream program worked.