Legal challenges against internet surveillance programs will heat up soon if the Trump administration continues spy programs after the scheduled expiration of Section 702 of the Foreign Intelligence Surveillance Act on Dec. 31.
At least four lawsuits are pending against Section 702 programs, setting up high-stakes litigation in early 2018 if passionately divided lawmakers do not extend the law.
Section 702 authorizes collection of communications on foreigners, but an unknown number of domestic communications are swept into databases where they can be searched without a warrant.
“We’ll supplement the pleadings. We hope to light a fire under Judge [Richard] Leon,” said conservative legal activist Larry Klayman, referring to the U.S. district judge assigned two lawsuits in which Klayman challenges Section 702 programs.
With few working days remaining in 2017 and with big-ticket items including tax cuts and a spending bill to avoid a partial government shutdown on the agenda, it’s unclear if Congress will have sufficient time or consensus to extend Section 702 before it lapses, despite authorities claiming it's essential to stopping terrorism.
The short timeframe also gives individual senators the ability to force a temporary expiration of the law, as Sen. Rand Paul, R-Ky., did in 2015 with a separate and since-revised surveillance law.
If the law lapses, the Trump administration reportedly plans to continue programs under a legal argument that orders from the Foreign Intelligence Surveillance Court last through April 2018.
Klayman said he will point to a lapse of Section 702, however, as additional reason to end collection programs, and said he believes Leon may feel compelled to step in.
In late 2013, Leon ruled against the constitutionality of the NSA’s bulk collection of domestic call records, finding the since-curtailed program a likely violation of the Fourth Amendment and writing that Constitution author James Madison would be “aghast.”
“He made a heroic decision, but he’s also known as a very slow judge unless something interests him at the time,” Klayman said. He said expiration of the law could be just such a trigger for Leon's interest.
Klayman filed one of the lawsuits in 2013 after former NSA contractor Edward Snowden disclosed the PRISM program, which takes records directly from companies including Google and Microsoft. That lawsuit seeks class-action certification and damages. His other lawsuit specifically addresses alleged surveillance against Klayman and former government contractor Dennis Montgomery. Neither case has had a hearing.
Others challenging Section 702 collection in court are less bullish.
Alex Abdo, a senior staff attorney at Columbia University’s Knight First Amendment Institute, which represents the nonprofit that runs Wikipedia alongside the American Civil Liberties Union, said he’s not yet sure if the legal team would immediately request a cessation of surveillance.
Wikimedia v. NSA challenges the Upstream collection program, which unlike PRISM takes records directly from the internet’s backbone.
“If 702 expires, our first instinct would be to address the expiration through that ongoing suit rather than to file a new one,” Abdo said. “That said, we'd of course think through the options carefully.”
Wikimedia filed its lawsuit in 2015, and the case was revived in May by a federal appeals court, which found that "there’s nothing speculative about it — the interception of Wikimedia’s communications is an actual injury that has already occurred.”
The Electronic Frontier Foundation, meanwhile, is still litigating the Jewel v. NSA case, filed in 2008 — the year Congress first passed Section 702 — after AT&T whistleblower Mark Klein alleged secret surveillance from a room at a San Francisco telecom facility.
Cindy Cohn, executive director of the Electronic Frontier Foundation, said the group is unlikely to use a temporary lapse in an attempt to force the immediate end of surveillance because she believes the Trump administration theory may have merit.
“We think that the government is likely correct that it’s current FISC permissions let it continue to surveil people past the deadline. Congress did this,” she said. “While there may be ways around this language, it isn’t likely something that we will challenge.”
Cohn points to wording in the 2008 FISA Amendments Act that says: “Notwithstanding any other provision of this Act, any amendment made by this Act, or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), any order, authorization, or directive issued or made under title VII of the Foreign Intelligence Surveillance Act of 1978 [50 U.S.C. 1881 et seq.], as amended by section 101(a), shall continue in effect until the date of the expiration of such order, authorization, or directive.”
Cohn said that the EFF is “looking forward to the government responding to our discovery requests on January 22, 2018,” and that she remains optimistic about the legal fight, despite the fact that it’s taken years.
“Notably, the courts have not dismissed the cases,” she said. “Both the EFF case Jewel and the ACLU’s Wikimedia case have survived multiple government attempts to dismiss them and are now in some form of a discovery process aimed at mapping the extent of the spying for purposes of standing.”