U.S. government moves to block further litigation in NSA surveillance cases

National intelligence director says continued litigation would reveal state secrets related to national security

The U.S. government again claimed state-secrets privileges in a move to block two lawsuits challenging the constitutionality of the National Security Agency's monitoring of Americans' phone communications and email, according to court filings late Friday.

Director of National Intelligence James Clapper said in a filing in U.S. District Court, Northern District of California, that even though aspects of the government's surveillance programs have been disclosed, further litigation of the lawsuits would jeopardize secrets of operational details necessary for state security.

The government also declassified and made public a variety of material and documents related to the cases and to surveillance programs initiated by former U.S. President George Bush, including earlier assertions of state-secrets privileges.

For the first time, the government officially disclosed that "President Bush authorized NSA to collect: (1) the contents of certain international communications, a program that was later referred to as the Terrorist Surveillance Program (TSP), and (2) telephony and Internet non-content information (referred to as metadata) in bulk, subject to various conditions."

President Bush issued authorizations approximately every 30-60 days, according to the declassified material on the Tumblr page of the Office of the Director of National Intelligence.

The programs initiated by President Bush operated for several years under executive power before coming under judicial and congressional oversight. The NSA's surveillance included warrantless monitoring of email and phone calls. The two lawsuits in the Northern District of California District Court challenge the legality of a Congress-approved, modified version of that warrantless surveillance.

Many formerly secret operational details of the NSA's surveillance have come to light in the wake of disclosures made by former NSA contractor Edward Snowden to the media.

Nevertheless, continued litigation of the California court cases could compromise national security, Clapper said in the Friday court filing.

"In my judgment, disclosure of still-classified details regarding these intelligence-gathering activities, either directly or indirectly, would seriously compromise, if not destroy, important and vital ongoing intelligence operations," Clapper wrote.

The Electronic Frontier Foundation, which is leading one of the District Court cases, slammed the government filings.

"The governments attempt to block true judicial review of its mass, untargeted collection of content and metadata by pretending that the basic facts about how the spying affects the American people are still secret is both outrageous and disappointing," said EFF Legal Director Cindy Cohn in a statement.

In the Northern District of California case led by the EFF, Carolyn Jewel is the plaintiff suing on behalf of AT&T customers. In the companion case, plaintiff Virginia Shubert is suing on behalf of all Americans.

State-secrets privileges allow the government to prevent sensitive information from being revealed in court, even if that means a case must be dismissed for lack of evidence. The Department of Justice wants Judge Jeffrey Wright to dismiss the NSA cases without ruling on the constitutionality of the surveillance programs.

Join the CSO newsletter!

Error: Please check your email address.

Tags [no company]securitylegal

More about BushDepartment of JusticeEFFElectronic Frontier FoundationNational Security AgencyNSA

Show Comments

Featured Whitepapers

Editor's Recommendations

Solution Centres

Stories by Marc Ferranti

Latest Videos

  • 150x50

    CSO Webinar: The Human Factor - Your people are your biggest security weakness

    ​Speakers: David Lacey, Researcher and former CISO Royal Mail David Turner - Global Risk Management Expert Mark Guntrip - Group Manager, Email Protection, Proofpoint

    Play Video

  • 150x50

    CSO Webinar: Current ransomware defences are failing – but machine learning can drive a more proactive solution

    Speakers • Ty Miller, Director, Threat Intelligence • Mark Gregory, Leader, Network Engineering Research Group, RMIT • Jeff Lanza, Retired FBI Agent (USA) • Andy Solterbeck, VP Asia Pacific, Cylance • David Braue, CSO MC/Moderator What to expect: ​Hear from industry experts on the local and global ransomware threat landscape. Explore a new approach to dealing with ransomware using machine-learning techniques and by thinking about the problem in a fundamentally different way. Apply techniques for gathering insight into ransomware behaviour and find out what elements must go into a truly effective ransomware defence. Get a first-hand look at how ransomware actually works in practice, and how machine-learning techniques can pick up on its activities long before your employees do.

    Play Video

  • 150x50

    CSO Webinar: Get real about metadata to avoid a false sense of security

    Speakers: • Anthony Caruana – CSO MC and moderator • Ian Farquhar, Worldwide Virtual Security Team Lead, Gigamon • John Lindsay, Former CTO, iiNet • Skeeve Stevens, Futurist, Future Sumo • David Vaile - Vice chair of APF, Co-Convenor of the Cyberspace Law And Policy Community, UNSW Law Faculty This webinar covers: - A 101 on metadata - what it is and how to use it - Insight into a typical attack, what happens and what we would find when looking into the metadata - How to collect metadata, use this to detect attacks and get greater insight into how you can use this to protect your organisation - Learn how much raw data and metadata to retain and how long for - Get a reality check on how you're using your metadata and if this is enough to secure your organisation

    Play Video

  • 150x50

    CSO Webinar: How banking trojans work and how you can stop them

    CSO Webinar: How banking trojans work and how you can stop them Featuring: • John Baird, Director of Global Technology Production, Deutsche Bank • Samantha Macleod, GM Cyber Security, ME Bank • Sherrod DeGrippo, Director of Emerging Threats, Proofpoint (USA)

    Play Video

  • 150x50

    IDG Live Webinar:The right collaboration strategy will help your business take flight

    Speakers - Mike Harris, Engineering Services Manager, Jetstar - Christopher Johnson, IT Director APAC, 20th Century Fox - Brent Maxwell, Director of Information Systems, THE ICONIC - IDG MC/Moderator Anthony Caruana

    Play Video

More videos

Blog Posts