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Big Brother really is watching you. And reading your e-mails. And tracking which websites you visit. According to the court testimony of a


Bush-Era Warrantless Wiretapping Program on Trial Tomorrow in Seattle

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Big Brother really is watching you. And reading your e-mails. And tracking which websites you visit. According to the court testimony of a former AT&T technician, there is a secret room--the "SG-3 Room"--in the company's San Francisco offices that is occupied by the National Security Agency. All Internet traffic AT&T receives is filtered through high-powered NSA computers there, and the machines sort through the communications of "millions of ordinary Americans" searching for . . . something. Perhaps a terror plot, perhaps which library books you're checking out. No one is quite sure what they're after, but the Electronic Frontier Foundation and the ACLU are fighting an ongoing legal battle with the government and AT&T in attempt to establish some sort of accountability for the domestic spy program.

Two key appeals cases will be heard in Seattle federal court tomorrow. The first, Jewel v. NSA, was filed by the EFF in 2006, "on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records." The case also targets former President George W. Bush, former Vice President Dick Cheney, Cheney's former chief of staff David Addington, and former Attorney General and White House Counsel Alberto Gonzales--the officials who authorized the NSA wiretapping.

The second case, Hepting v. AT&T, covers much the same ground. Also filed in 2006, the EFF is again suing on behalf of AT&T customers, alleging that the telecommunications company violated privacy laws "by collaborating with the NSA in the massive, illegal program to wiretap and data-mine Americans' communications."

Both cases have previously been dismissed by judges in lower courts. In the Jewel case, the Bush administration argued that the litigation would force the government to disclose "state secrets." The Obama administration used the same argument again in 2009, and a District Court judge eventually dismissed the case on the grounds that, because millions of Americans had been spied upon, no single American had standing to sue.

A federal judge nixed the Hepting case in June 2009, ruling that AT&T and other Internet service providers were not liable for being in cahoots with the NSA because of the Foreign Intelligence Surveillance Amendments Act. This law, signed by Bush in 2008, allows the Attorney General to dismiss lawsuits against telecom companies for wiretapping if the program did not occur, was legal, or was authorized by the president. (None of those steps are required to be disclosed to the public.) The AT&T/NSA program received this certification in September 2008.

Both cases rely on evidence gathered by Mark Klein, a former AT&T technician who documented the existence of the "SG-3" room in San Francisco, a setup he claims exists in at least 15-20 other AT&T sites around the country. Klein's testimony was supported by J. Scott Marcus, a former Senior Advisor for Internet Technology at the FCC.

According to court filings and the excellent investigative reporting of The New York Times, the NSA's domestic spy program began shortly after the September 11, 2001, terrorists attacks and has been expanding ever since. Bush maintained that the eavesdropping was limited to "the monitoring of international phone and e-mail communications involving people with known links to Al Qaeda," but evidence suggests that the NSA engaged in highly classified "data-mining" of all Americans' calls and web-surfing habits with the help of AT&T and other communications companies. It's unclear whether the spy program is still on-going.

As for the cases that will be heard tomorrow, EFF legal director Cindy Cohn says they go straight to the core of the nation's governing principles.

"We need to be vigilant about protecting ourselves, and ultimately the Constitution, against actions that ignore or overstep limits on Executive power," Cohn writes in an official statement, "The outcome of both Jewel v. NSA and Hepting v. AT&T will be crucial not only to those who wish to stop the spying and regain the privacy of our communications, but to upholding the Constitutional limitations on the Executive Branch's power."

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