EFF files surveillance lawsuit against NSA, Bush, Cheney

By , IDG News Service |  Government, EFF, privacy

The Electronic Frontier Foundation (EFF) has filed a lawsuit against the U.S. National Security Agency (NSA), U.S. President George Bush, Vice President Dick Cheney and other government officials, alleging that an NSA electronic surveillance program continues to illegally spy on U.S. residents.

The lawsuit, filed Thursday, alleges that the NSA is conducting mass surveillance on U.S. residents, even as Bush and other officials say the program only targets U.S. residents when they communicate with overseas terrorism suspects. Filed in U.S. District Court for the Northern District of California, the lawsuit is a class-action complaint on behalf of all residential customers of AT&T's telephone and Internet services.

The lawsuit alleges that the NSA has installed equipment to conduct mass surveillance at AT&T telecom facilities in San Francisco; Atlanta; Seattle; Los Angeles; San Diego; San Jose, California; and Bridgeton, Missouri. "We allege a nationwide network of such NSA vacuum-cleaner surveillance facilities that would indiscriminately collect communications of all of the people who use AT&T's network," said Kevin Bankston, senior staff attorney at EFF.

Former AT&T technician Mark Klein, who leaked AT&T documents about the program in 2006, and various news reports have described a surveillance program that goes beyond the NSA intercepting a few phone calls or e-mails exchanged between U.S. residents and terrorism suspects, Bankston said.

The White House and the NSA didn't immediately respond to requests for comments on the EFF lawsuit. Bush administration officials have long defended the program as essential for fighting terrorism.

The Bush administration pitched the NSA program as being focused on foreign terrorism suspects during debate in the U.S. Congress earlier this year about approval for the program, Bankston said. The surveillance program had been operating since 2001 without court or congressional oversight until July, when Congress passed a bill giving limited oversight to the U.S. Foreign Intelligence Surveillance Court.

"Our case is about the interception of millions of ordinary Americans' communications," Bankston said. "If the government is proceeding under the purported authority of the [July legislation], then the administration has perpetrated an incredible fraud on both Congress and the American people in describing that law as limited to targeting people outside the United States."

The lawsuit seeks a court order forcing the NSA to end the program and destroy any copies of U.S. residents' e-mail and phone calls that exist. The lawsuit also seeks unspecified monetary damages.

"The plaintiffs are doing this ... to obtain personal accountability from the architects of the program and to provide a strong incentive against future lawbreaking by these or other government officials," Bankston said. "Our lawsuit today should sound a clear warning to future occupants of the White House, as well as future heads of the [Department of Justice] and the NSA: If you break the law and violate Americans' privacy, there will be consequences."

The EFF also filed a 2006 lawsuit against AT&T for its alleged participation in the NSA program. But the Foreign Intelligence Surveillance Act (FISA) Amendments Act, the surveillance bill passed by Congress in July, requires that a court dismiss the more than 40 existing surveillance lawsuits against telecom carriers if the carriers can show that they were told by government officials that the surveillance orders were legal.

The EFF believes courts will not dismiss the lawsuits against those carriers, but the advocacy group filed a new lawsuit focused on government officials in an attempt to get the NSA program shuttered quicker, Bankston said.

The lawsuit seeks to have the court declare that the spying program violates the U.S. Constitution's First Amendment, guaranteeing freedom of speech, and the Fourth Amendment, prohibiting unreasonable search and seizure by the government. The program also violates U.S. privacy laws, Bankston said.

The lawsuit comes just days after the Washington Post reported that Cheney and his chief of staff, David Addington, pushed to keep the program operating, even as DOJ officials and NSA auditors began to have doubts about its legality in 2004. The EFF names Addington as a defendant in the lawsuit.

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