The NSA’s surveillance programs are getting challenged by unlikely groups, including tech companies, elected officials, and a coalition ranging from Churches to gun rights groups.
JAISAL NOOR, TRNN PRODUCER: Welcome to The Real News Network. I’m Jaisal Noor in Baltimore.
This week, the National Security Agency surveillance programs were challenged by elected officials and advocacy groups alike.
On Wednesday, congresspeople from both sides of the aisle grilled administration officials about the NSA’s previously undisclosed intelligence gathering operations. During one tense exchange, Wisconsin Republican Jim Sensenbrenner, who originally authored the Patriot Act in 2001, suggested that unless the NSA rein in their programs, the House would not have the votes to renew NSA surveillance authority under section 215 of the Patriot Act, which expires in 2015.
On Tuesday, the Electronic Frontier Foundation, representing a broad range of groups, filed suit against the NSA’s mass telephone communications surveillance programs. This followed a ruling on Monday where the Foreign Intelligence Surveillance Court, or FISA, ruled the government had to disclose its secret justification it gave the search engine Yahoo! for gathering data on its users.
To talk about these developments and more, we’re joined by Mark Rumold. He’s a staff attorney at the Electronic Frontier Foundation focusing primarily on access to information, government secrecy, and national security issues. As part of EFF’s transparency project, Mark regularly represents the EFF in cases under the federal Freedom of Information Act. And as a result of his transparency work, tens of thousands of previously secret government documents have been made available to the public.
Thank you so much for joining us, Mark.
MARK RUMOLD, STAFF ATTORNEY, EFF: Thanks for having me.
NOOR: So, Mark, can you give us your reaction to this hearing on Wednesday on Capitol Hill where congresspeople from both sides of the aisle grilled administration officials about the revelations of the NSA spying on citizens and across the world, as well as can you also talk about how this was different than the previous hearing held on Capitol Hill just a few weeks ago?
RUMOLD: Sure. Well, the hearing yesterday was certainly more hostile than the first hearing. I think, you know, the first House Intelligence Committee hearing was just a few days after the disclosures had been made. I think maybe elected officials were trying to get a feel for public sentiment. But it seems like now that time has passed, almost a month has passed since the initial disclosures, public sentiment is clearly against the NSA and against the collection of all Americans’ call records. And I think the Judiciary Committee yesterday was representative of that sentiment. House representatives from both sides of the aisle and the ranking members of the Judiciary Committee really, really grilled DOJ and NSA and ODNI administration officials about the program.
NOOR: Mark, can you talk more about what this actually means, whether the NSA can actually be challenged on these programs? Do you think Congress might act to rein in the NSA’s surveillance powers?
RUMOLD: Well, I’m hopeful. As you mentioned, Representative Sensenbrenner, who is the author of or is sometimes considered the author of the Patriot Act, you know, he said pretty pointedly in the hearing yesterday that if the NSA doesn’t change and DOJ doesn’t change the way that they’re using section 215, they’re going to withdraw the government’s power under section 215. And he said he didn’t put any restriction on it. So he was talking about just withdrawing the ability of the government to get business records from the Foreign Intelligence Surveillance Court across the board. You know, there are some uses of that provision that aren’t nearly so controversial as collecting the call records of millions of Americans. But Representative Sensenbrenner effectively said that if they weren’t willing to do it, if the administration wasn’t willing to reform their use of the provision itself, then Congress was going to do it for them. And I think it’s likely that there are a number of bills kicking around both the House and the Senate right now that, you know, are poised to introduce real reform, both in the way the FISA court operates and to section 215.
NOOR: And, Mark, can you give us some more details about this lawsuit that the Electronic Frontier Foundation filed on Tuesday specifically challenging the seizing of telephone records in a program that was leaked by Edward Snowden and then confirmed by the publication of an internal NSA memo?
RUMOLD: Sure. So the suit we brought on Tuesday, we brought it on behalf of 19 organizations from across the political and ideological spectrum. We represent drug reform advocates, churches, gun rights advocates, human rights advocates, civil liberties advocates, and also their members, so in total 900,000 members. And the focus of this lawsuit is to really highlight the way that the NSA’s collection of these call records violates our plaintiffs, these organizations’ freedom to associate.
So when the government collects these call records, it has essentially a record of who calls who when, for how long, and how often they do it. And we’re talking about years of this information. And when you look at that information, it provides a really intimate portrait about an individual, or in this case an organization, and who those organizations are contacting in order to engage in their political advocacy. And that type of information, there is a case from 1958 that held that the NAACP–it’s a Supreme Court case–held that the NAACP couldn’t be compelled to turn over their membership lists unless the government satisfied the highest First Amendment scrutiny. And we think this case is essentially identical. What the government’s trying to do is do an end-around around the NAACP case by conducting this in secret and by collecting all these telephone records.
NOOR: Based on that, what can you tell us about the legal process and the timeline of such challenges?
RUMOLD: Well, so that case is actually still ongoing. So in 2008 we filed a class-action on behalf of AT&T customers against the NSA, trying to put an end to exactly the type of program that has been disclosed over the past month. That case has–admittedly, it is has been–it’s been a bit of a slog. We’ve been up and down to the federal Court of Appeals twice now. We’ve won both times. And the case is still alive. And, actually, just last week we got a really beneficial ruling that basically said that the government’s state secrets argument was preempted and that the court could determine the legality of the surveillance that we were challenging. So, you know, at this point that case–it’s called Jewel v. NSA–is really–it has a green light to go forward and for the court to decide on the merits whether or not the NSA’s domestic spying program is illegal or not. And the case we filed on Tuesday, we think, will really be a complement to that case. Right? It will highlight the specific First Amendment problems that are at issue with the government’s records collection.
NOOR: And, Mark, can you comment on this remarkable ruling by the FISA court on Monday, ruling against the government, saying it had to disclose the justification it gave the search engine Yahoo! about why it needed to gather vast amounts of data on its users? What is the significance of that ruling? And could this set a precedent that could apply to other websites and other organizations as well?
RUMOLD: Well, so I think the significance of that decision remains to be seen. It’s still a little bit of an open-ended question. The court actually didn’t order the government to declassify the decision and release it. The court ordered the government to undertake a classification review.
So that doesn’t mean necessarily that the government will have to come back and say, yes, after reviewing it, we think more of this opinion can be released. The government could very well come back and say, nope, it’s all still classified, sorry. And I think the government might have a little trouble doing that in terms of optics and in terms of just kind of the administration’s commitment, or at least a stated commitment, to wanting to have a debate about the merits of this surveillance.
I think it’s certainly a step in the right direction. It’s the FISC recognizing that the public is vitally interested in its opinions. And it’s also Yahoo! stepping up for its users and saying, look, you know, our users are concerned about the type of surveillance that’s going on. And, you know, now the ball is back in the executive branch’s court, in the Obama administration’s court. And if the administration is really serious about wanting to have a debate on this surveillance, then they certainly should make more of those opinions available.
NOOR: Mark Rumold, thank you so much for joining us. And we’ll keep following all these stories.
RUMOLD: Alright. Thanks a lot.
NOOR: Thank you for joining us on The Real News Network.