Judge questions evidence on whether NSA spying is too broad

A federal lawsuit charges that the government's Internet surveillance is unconstitutional

A federal judge on Friday questioned the strength of a key lawsuit challenging the constitutionality of the government's Internet surveillance program known as "upstream" data collection.

Judge Jeffrey White heard oral arguments by attorneys from the Electronic Frontier Foundation, which filed the suit, and the government, during a hearing in a federal district court in Oakland, California. The EFF says its suit is the first challenge in public court to the government's upstream data program, which copies online data from the main cables connecting Internet networks around the world.

The EFF first filed its suit in 2008 after an AT&T technician provided evidence that the company routed copies of its Internet traffic records to the NSA.

The National Security Agency program is unconstitutional because it collects communications, including content such as email, of people without ties to issues of national security, EFF attorney Richard Wiebe told the judge. That's an overly broad dragnet that violates the Constitution's Fourth Amendment protections against unreasonable search and seizure, he said.

U.S. Justice Department attorney James Gilligan did not deny the government taps the Internet's backbone to gather data. But the government uses filtering mechanisms to automatically destroy certain communications records within milliseconds, he said.

Judge White could declare the upstream collection program unconstitutional, a ruling the government would probably appeal. But on Friday, he questioned whether there was enough evidence on either side to say whether the program is constitutional.

The judge's ruling might take months, judging from the number and complexity of questions he asked Friday.

"What evidence is there that it's all international communications [gathered], not just communications with suspected terrorists or hot spots?" he asked EFF attorney Wiebe.

Wiebe cited a top-secret 2009 report by the NSA inspector general detailing the government's email and Internet data collection, published by The Guardian. Other documents, including AT&T's first surveillance transparency report, published earlier this year, provide evidence of the program's reach, he said.

But the government has never confirmed nor denied the 2009 secret report, Gilligan said, and AT&T's report only pertains to legal court orders received under the Foreign Intelligence Surveillance Act.

The government has argued that upstream data collection by the NSA is legal under the Foreign Intelligence Surveillance Act.

The judge also asked whether the government was seeking an easy out by simply saying its data filtering was "automatic."

"It's concerning that, given the digital age, if the government can't do something directly, but can do it by a machine, does that open the door to get around whether there was illegal search and seizure?" he said.

Zach Miners covers social networking, search and general technology news for IDG News Service. Follow Zach on Twitter at @zachminers. Zach's e-mail address is zach_miners@idg.com

Join the newsletter!

Or

Sign up to gain exclusive access to email subscriptions, event invitations, competitions, giveaways, and much more.

Membership is free, and your security and privacy remain protected. View our privacy policy before signing up.

Error: Please check your email address.

Tags governmentprivacylegaldata protectionEFFat&t

Keep up with the latest tech news, reviews and previews by subscribing to the Good Gear Guide newsletter.

Zach Miners

IDG News Service
Show Comments

Cool Tech

Toys for Boys

Family Friendly

Stocking Stuffer

SmartLens - Clip on Phone Camera Lens Set of 3

Learn more >

Christmas Gift Guide

Click for more ›

Brand Post

Most Popular Reviews

Latest Articles

Resources

PCW Evaluation Team

Michael Hargreaves

Microsoft Office 365/Dell XPS 15 2-in-1

I’d recommend a Dell XPS 15 2-in-1 and the new Windows 10 to anyone who needs to get serious work done (before you kick back on your couch with your favourite Netflix show.)

Maryellen Rose George

Brother PT-P750W

It’s useful for office tasks as well as pragmatic labelling of equipment and storage – just don’t get too excited and label everything in sight!

Cathy Giles

Brother MFC-L8900CDW

The Brother MFC-L8900CDW is an absolute stand out. I struggle to fault it.

Luke Hill

MSI GT75 TITAN

I need power and lots of it. As a Front End Web developer anything less just won’t cut it which is why the MSI GT75 is an outstanding laptop for me. It’s a sleek and futuristic looking, high quality, beast that has a touch of sci-fi flare about it.

Emily Tyson

MSI GE63 Raider

If you’re looking to invest in your next work horse laptop for work or home use, you can’t go wrong with the MSI GE63.

Laura Johnston

MSI GS65 Stealth Thin

If you can afford the price tag, it is well worth the money. It out performs any other laptop I have tried for gaming, and the transportable design and incredible display also make it ideal for work.

Featured Content

Don’t have an account? Sign up here

Don't have an account? Sign up now

Forgot password?