As you may recall, after we brought the suit in 2015, the government argued that the Foundation’s claims weren’t “plausible” because the NSA hadn’t admitted that it surveilled our communications. Last year, the Fourth Circuit Court of Appeals rejected that argument and allowed the case to move forward. Since then, the case has been proceeding through a “discovery” phase, during which the parties exchange information about their claims and arguments. As part of this phase, the Foundation—with our pro bono counsel at the American Civil Liberties Union, the Knight First Amendment Institute at Columbia University, and Cooley, LLP—sought information from the government related to the surveillance of our communications and deposed an NSA official. In addition, the Foundation’s Legal, Audiences, Community Engagement, and Technology departments partnered with counsel to respond to the government’s many questions and requests.
Unfortunately, the government withheld answers to many of our questions and refused to produce certain documents. In a number of instances, the government asserted the state secrets privilege as the basis for this refusal. The state secrets privilege is a legal rule that allows the U.S. government to withhold particular information in a lawsuit on the grounds that disclosure would harm national security.
On 29 June 2018, our lawyers argued before the district court that the NSA and other defendants should be required to provide the information sought to the judge alone for what is known as in camera review. During in camera review, the judge would assess this information to help him determine whether it’s likely that the Foundation is subject to Upstream surveillance—and, thus, whether it has established what is known as “standing” to sue. While the public record makes clear that the Foundation’s communications have been caught up in this surveillance, the government’s answers would simplify and streamline the court’s determination of our standing.
On Monday, 20 August, Judge T.S. Ellis, III ruled that he will not require the government to provide the documents and information requested for in camera review. Although this ruling does not prevent us from proceeding with the case, we are nevertheless disappointed. It is crucial that the government be held accountable for Upstream and similar mass surveillance practices, and without close judicial review of relevant information, the legal system’s ability to properly oversee these actions may be impeded.
This fall, we expect that the litigation will enter the next phase: summary judgment on standing. In this phase, both sides will be able to present their evidence concerning standing to the district court. We are pleased that we will have the opportunity to make our case, and we look forward to the hearing. We will provide updates as the suit proceeds, and for more information, you can always refer to our resource page on the case, or the ACLU’s website.
Jim Buatti, Legal Counsel
Aeryn Palmer, Senior Legal Counsel II