Sunday, January 1, 2012

Ninth Circuit finds standing to challenge government's alleged communications dragnet

In a lawsuit alleging "widespread warrantless eavesdropping" in violation of the Foreign Intelligence Surveillance Act, the Electronic Communications Privacy Act, and the Stored Communications Act, the Ninth Circuit has reversed and remanded the lower court dismissal on standing grounds. Jewel v. NSA, 673 F.3d 902 (2011).

The suit, backed by the Electronic Frontier Foundation, alleged "that the government[] operated a "dragnet collection" of communications records by 'continuously soliciting and obtaining the disclosure of all information in AT&T's major databases.'" The district court dismissed the compliant, finding that Jewel's complaint failed by not "specifically linking any of the plaintiffs to the alleged surveillance activities."

Of course, the issue is whether Jewel could demonstrate a "sufficiently concrete and specific injury" in order to have standing. The court found that the complaint "described in detail the ... equipment used ... at the particular AT&T facility" and that she "alleged with particularity that her communications were part of the dragnet."

RELATED CASE: The Ninth Circuit also decided, in a separate opinion, that § 802 of the Foreign Intelligence Surveillance Act, which immunizes telecommunications companies from cooperating with the government's investigations, is constitutional. In re NSA Telcoms. Records Litig., 2011 U.S. App. LEXIS 25949 (2011).

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