In Jewel v. NSA, EFF sued the NSA and other government agencies on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records using AT&T’s facilities. At issue in the case were three governmental programs:  the mass telephone records collection, the mass internet metadata collection program and the interception and collection of information flowing through key internet backbone facilities of AT&T, which was later called “Upstream.” 

The goal of the case, which was filed in 2008, was to help ensure that all Americans have privacy in our communications and other uses of the internet and to stand up to one of the world’s biggest telecommunications companies on behalf of the customers whose data they should be protecting.

Jewel v. NSA, was a follow-on case to Hepting v. AT&T, which sought to prevent AT&T from participating in the NSA’s mass spying campaign.  Jewel v. NSA was based upon the same underlying facts and the same three NSA mass spying programs. 

Jewel was launched because the Hepting case was blocked by Congress, at the urging of the George W. Bush Administration and AT&T, along with other telecommunications carriers. In 2008, after Hepting had initial success in the District Court and a favorable oral argument in the Ninth Circuit, Congress intervened by passing the FISA Amendments Act which, in part, granted “retroactive immunity” to the telecommunications carriers for their involvement in the NSA spying programs.  This massive grant of immunity for past violations of multiple state and federal laws protecting communications privacy was unprecedented.

The immunity grant ultimately ended the Hepting case, along with many other cases brought to stop the spying. Candidate Barack Obama had promised to veto the proposed law, called the FISA Amendments Act, but ultimately voted for it (as did then-candidate Joseph Biden).

Below is the legal procedural timeline of EFF’s landmark Jewel v. NSA case, which took many twists and turns between filing in 2008 and its ultimate dismissal by the Supreme Court in 2023.  We'll cover what happened, and what needs to occur in the future to make sure we’re able to stand up for our privacy from big companies and the intelligence community.

Filing in 2008 and Key Evidence

Just after the passage of the FISA Amendments Act in summer 2008, EFF filed Jewel v. NSA. Key evidence in the case, as well as in Hepting before it, included undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.  This mass interception was later was revealed to be part of a program called Upstream.  The evidence also included declarations from three brave NSA whistleblowers Thomas Drake, William Binney and J. Kirk Wiebe, along with secret government documents that had been published in the Guardian and Washington Post that confirmed our allegations. Two of the most critical documents directly referenced the “upstream” collection of communications from fiber optic cables and the domestic telephone records collection program. Despite this large amount of evidence, the  government denied the existence of these programs for many years, only fully confirming them in June 2013, after the Snowden revelations.

The central argument in the Jewel case is that the Foreign Intelligence Surveillance Act (FISA) provides both a claim for someone who has been illegally spied upon and a procedural pathway for that claim to ensure that it can be heard despite claims of national security. The procedural pathway is in 50 USC 1806(f), which describes how evidence can be presented and reviewed by a court to allow an “aggrieved person” to sue and obtain remedies for illegal surveillance. A key argument in this case, was whether and how this specific process, created by Congress, overrides the judge-created state secrets privilege, and allows these claims to be decided.

Procedural history: 2009 - 2013: Government's First State Secrets Argument Fails

In early 2009, the government – by now the Obama administration --  moved to dismiss Jewel.  Despite the change in Administration, the government still maintained, as it had in Hepting, that litigation over the wiretapping program would require the government to disclose privileged “state secrets,” that it was immune from suit, and that the statutory section 1806(f) did not apply.  The District Court ruled that the case should be dismissed on different grounds, specifically that it did not present a concrete injury sufficient for standing because it presented only an “abstract, generalized grievance.” 

December of 2011, the United States Court of Appeals for the Ninth Circuit reversed the District Court and held that that Plaintiffs’ allegations were sufficient to meet the constitutional standing requirement of concrete injury.  The Ninth Circuit sent the case back to the District Court for further proceedings.

In July 2012, EFF moved to have the District Court decide this central issue and declare specifically that the Foreign Intelligence Surveillance Act (FISA) 1806(f) provision superseded the state secrets privilege; in September, 2012 the government renewed its "state secrets" claims and the matter was heard by the federal district court in San Francisco on Dec. 14, 2012. You can watch video of the Dec. 14, 2012 hearing here.

Procedural History 2013-2015: Snowden Revelations Provide New Evidence

In June 2013, the media started reporting on the Snowden revelations, which included an Order for mass telephone records, and evidence supporting the existence of the Upstream program and the mass metadata collection program.  As a result, EFF launched a separate case focusing on the telephone record program, called First Unitarian Church v. NSA.

In Jewel, in July 2013, the court rejected the government’s “state secrets” argument, ruling that any properly classified details can be litigated under the procedures of the FISA, including the procedure provided in 1806(f). The court dismissed some of our statutory claims, but the other claims, including that the program violates the First and Fourth Amendments of the Constitution, continued.

EFF then began preparing a motion for partial summary judgment on the Fourth Amendment claim against the Upstream program. 

In March 2014, EFF discovered that the government had been destroying records it had collected in the case, despite a Preservation Order issued by the Court at the beginning of the case (extending one from the prior Hepting case).  The District Court granted, and then confirmed, its TRO in Spring 2014, stopping the government from continuing its document destruction.

On February 10, 2015, the District Court denied EFF’s motion for partial summary judgment on the Fourth Amendment claims against the Upstream program, and granted the government’s motion for summary judgment.  The District Court held that even though the government had admitted that the Upstream program exists, plaintiffs did not have standing to sue on the program unless they could demonstrate that the program actually operates in the way that we alleged it does and that the large amount of evidence that we provided about how it works was insufficient. 

The District Court also implicitly reversed its earlier rulings.  It held that, despite its earlier ruling about 1806(f) controlling the evidence in the case and superseding the state secrets privilege, that the state secrets privilege prevented further inquiry into the details of the Upstream process sufficient to allow plaintiffs to prove standing. The court did not explain its huge shift to embrace a doctrine that it had rejected multiple times between 2008 and 2015.

The District Court did certify its ruling for immediate appellate review, so the case returned to the Ninth Circuit. The government sought to prevent substantive review by claiming that review on the Fourth Amendment issue alone was improper.

Oral argument on the Government's Motion to Dismiss the Appeal was held on October 28, 2015 at 2:00 in Courtroom 1 of the Richard H. Chambers US Court of Appeals, Pasadena, CA. You can watch the oral argument here.

The Ninth Circuit dismissed our appeal, accepting the government’s argument that it was premature to hear an appeal of only part of the case.  The Ninth Circuit also ordered the District Court to allow discovery, after expressing surprise that the Court had not already done so.

Procedural History 2016- 2019: Discovery Allowed but then Thwarted

After 8 years, in February 2016, district court judge Jeffrey White authorized EFF, on behalf of the plaintiffs, to conduct discovery against the NSA. This marked the first time a party was allowed to gather factual evidence from the NSA in a case involving the agency’s warrantless surveillance. Plaintiffs’ interrogatories to the government. After a long process involving multiple delays on the government side, the court allowed the government to avoid providing any substantive discovery responses that provided any new information. The government apparently did provide some information to the court in a classified form, although plaintiffs were never given any indication about what that was or which of our requests it responded to, despite our multiple requests for access or a summary.

In 2018, after the lengthy and largely fruitless discovery process, the court required the parties to file cross motions. In framing the questions it required the parties to answer, the Court rejected EFF’s argument that, based upon the Court’s earlier rulings, the state secrets privilege had been displaced. Instead the Court determined that, having used 1806(f) process to obtain classified information, it had to apply the state secrets privilege after that to determine if it could reach the merits of the case.  This shift by the court was confusing and unprecedented.

The court required the government to demonstrate why the state secrets privilege requires dismissal of Plaintiffs’ claims even if they do have an actual injury due to the governments’ mass spying. It required the plaintiffs to demonstrate that they had standing on the public record and the government to respond to the public evidence relating to standing.

In response, EFF presented its full evidentiary case that the five ordinary Americans who are plaintiffs in Jewel v. NSA were among the hundreds of millions of nonsuspect Americans whose communications and communications records have been touched by the government’s mass surveillance regimes. This presentation included a new whistleblower and three additional expert witnesses—Professor Matthew Blaze, Dr. Brian Reid, and former Chief Technologist at the Federal Trade Commission Ashkan Soltani—along with AT&T documents and witnesses we first revealed in 2006. We also marshalled key portions of the now massive amount of public admissions by the U.S. government and the most recent example of public judicial review in the Big Brother Watch case in Europe.

Most prominently, whistleblower Edward Snowden provided a declaration in support of EFF’s clients in Jewel v. NSA, which confirmed that a document relied upon in our case, a draft NSA Inspector General Report from 2009 discussing the mass surveillance program known as Stellar Wind, is actually the same document that he came upon during the course of his employment at NSA contractor. Mr. Snowden confirmed that he remembered the document because it helped convince him that the NSA had been engaged in illegal surveillance. 

The Vice President and Deputy General Counsel of the New York Times David McCraw, provided a simple declaration to authenticate the Audit Report by the NSA in response to a secret FISA Court Order – that it produced to the New York Times in response to a Freedom of Information Act request.

Mr. Snowden’s and Mr. McCraw’s declarations were presented to the court because the NSA tried to use a legal technicality to convince the court to disregard the documents. The NSA refused to authenticate those documents itself. This is important because documents gathered as evidence in court cases generally must be authenticated by whoever created them or has personal knowledge of their creation in order for a court to allow them to be used.

The government attempted to convince the court to dismiss our case, arguing that public courts should be denied any ability to protect Americans’ rights under established law because it is a “state secret” which tens of millions of Americans were impacted by the surveillance dragnet which it admitted to implementing.  The government admitted that its mass surveillance schemes tapped into the very backbone of the Internet. The government admitted that for many years, it collected our telephone and Internet records in bulk. It admitted that these schemes swept in billions of communications from hundreds of millions of ordinary Americans. Yet it still claimed that the state secrets privilege should block the case.

In April 2019, the district court dismissed our remaining claims (it had dismissed our Fourth Amendment claims in 2015), claiming that it would be impossible to analyze the legality of the mass spying without revealing state secrets, and ruling again that the plaintiffs could not prove they were spied on based on the public evidence, despite the enormous amount of direct and circumstantial evidence showing our clients’ communications likely swept up by the NSA dragnet surveillance to establish legal “standing.”

Procedural History 2019-2023: State Secrets Prevails

In September 2019, we filed our opening brief in the Ninth Circuit Court of Appeals, asserting that the courts don’t have to turn a blind eye to the government’s actions. Instead, the court must ensure justice for the millions of innocent Americans who have had their communications subjected to the NSA’s mass spying programs since 2001. In Spring 2019 Ninth Circuit Court of Appeals ruled in a case called Fazaga v. FBI that the state secrets privilege does not apply to cases challenging domestic electronic surveillance for national security. We asked the appeals court to apply that same reasoning to Jewel v. NSA and reverse the district court judge’s order of dismissal so our clients, and the American people, could finally have their day in court.

We didn’t go to the Ninth Circuit alone—in early October six amicus briefs were filed in support of our case:

In August 2021, the Ninth Circuit affirmed the district court’s decision dismissing our landmark challenge to the US government’s mass communications surveillance, Jewel v. NSA with little or no explanation. The decision rendered government mass surveillance programs essentially unreviewable by U.S. courts, since no individual would be able to prove with the certainty the Ninth Circuit required that they were particularly spied upon.

EFF filed a petition for rehearing and rehearing en banc with the Ninth Circuit, bolstered by amicus briefs from Free Speech Coalition, Reporters Committee for Freedom of the Press, and many other partners in our fight for justice, but the Ninth Circuit again ruled in favor of the government on the issue of “standing.”

In January 2022, we petitioned the United States Supreme Court for a writ of certiorari in a last attempt to ensure that our clients and the American people could have their day in court. In June 2022, the U.S. Supreme Court slammed the courthouse door on Jewel v. NSA, effectively validating the government’s claims that something known and debated across the world—the NSA’s mass surveillance—is somehow too secret to be challenged in open court by ordinary members of the public whose communications were caught in the net. The era of Jewel came to an end, but the fight for privacy continues.

Conclusion and next steps

What went wrong? The Supreme Court allowed our case to be dismissed because it’s a “secret” that the mass spying programs that everyone has known about since at least the Snowden documents came to light in 2013 (and disclosed in the national news long before that) involved the nation’s two largest telecommunications carriers.  The Court refused to take on and reconsider the Ninth Circuit decision that held that the state secrets privilege blocked our clients’ efforts to prove that their data was intercepted such that they had standing to sue.

As we said in our briefs, the courts “created a broad national security exception to the Constitution that allows all Americans to be spied upon by their government while denying them any viable means of challenging that spying.”

Though our challenge in Jewel has ended, the fight to end the NSA’s mass surveillance continues. Section 215 has expired, although the government is allowed to continue using it in investigations that started before expiration. Nonetheless, it should not be renewed and Congress should push the government to end its use under preexisting authorizations.

Equally importantly, in late 2023 we’ll have a chance to put an end to Section 702, one of the key provisions that Congress passed in 2008 to protect the NSA’s activities and which currently authorizes what is left of the Upstream program. Congress should not renew Section 702 next year. Year after year, the Inspector General’s reports and FISA Court review of the program find huge problems in its implementation. The NSA simply cannot do this kind of mass surveillance consistent with the Constitution. It’s time for all of these gigantic, ungovernable, unaccountable and insanely expensive mass spying endeavors to end.

While the courts have abdicated their responsibility to protect you against NSA Spying, there is a good chance to push Congress to scale back the NSA’s authority. And we’ll need all of your help to make sure our voices are heard and heeded.