This weekend, the US government filed documents in two long-running cases (both in California’s Northern District) related to NSA surveillance. As the New York Times notes, these filings mark the first time the government acknowledged that the NSA “started systematically collecting data about Americans’ e-mails and phone calls in 2001, alongside its program of wiretapping certain calls without warrants.” However, the bigger takeaway from the new documents is that the government continues to evoke state secrets privilege—the right to prevent certain, potentially harmful information from being used in court even if it means a case might be dismissed—despite previous rulings against this argument.
“The government seems to be trying to reset the clock to before June 2013 or even December 2005,” said EFF Legal Director Cindy Cohn in a statement. “But the American people know that their communications are being swept up by the government under various NSA programs. The government’s attempt to block true judicial review of its mass, untargeted collection of content and metadata by pretending that the basic facts about how the spying affects the American people are still secret is both outrageous and disappointing.”
As the EFF notes, government surveillance activities are discussed publicly by media outlets worldwide and even acknowledged in official presidential press conferences. Despite that, the government’s state secrets defense argues EFF claims that “NSA indiscriminately intercepts the content of communications, and their claims regarding the NSA’s bulk collection of … metadata” are still viable state secrets.