EFF is in it for the long run, especially in the important, hard fights for your rights. One of the longest running fights in online civil liberties is over your right to have a private conversation over a digital network. Whether it’s for our intimate relationships, our healthcare, our associations and political organizing, or for our business relationships, we all need assurance that Big Brother isn’t accessing our data and communications. 2018 saw some creeping steps forward towards freeing our digital networks from mass surveillance, but the road remains long.
Ensuring that national security doesn’t become an excuse for ubiquitous untargeted surveillance isn’t easy. And it doesn’t move quickly.
EFF has fought for years to stop the NSA from tapping the Internet. In our flagship case Jewel v. NSA, the court went further this year than any has so far, requiring the government to answer basic questions about the scope of its tapping into the Internet backbone. The government was also required to provide information about several discontinued programs, including the mass telephone records collection and its collection of Internet metadata.
Getting the Court to require this information from the government was a hard-fought victory, but unfortunately, the public won’t see those answers anytime soon. The court flatly rejected our request to get access to any of the new information it provided to the court in secret, even though that information was in response to our litigation discovery requests. Instead, the court again required us to demonstrate our legal standing, but instead of letting us use the new information it received, it required us to do so with only the publicly available evidence. At the same time, it allowed the the government to move for summary judgment in its favor while relying on the secret evidence, putting us at a tremendous disadvantage. Nevertheless, we have persevered and presented four new witnesses to buttress our previous whistleblower and other public evidence.
The government played even more tricks along the way. It refused to confirm that two important NSA Office of Inspector General reports were authentic. These reports, which are plainly what they purport to be, confirm that AT&T participated in mass surveillance. In order to ensure that the reports could be entered into evidence, EFF presented a declaration from Edward Snowden about one and a declaration from the New York Times’ general counsel about the other. As of December 7, 2018, the briefing in this unprecedented process is now complete and the Court has set a February 2, 2019, hearing date.
One of the new bits of evidence we asked the court to take note of in Jewel came from the UK, where NGOs including Big Brother Watch have also been challenging surveillance by the NSA and its closest international partner, GCHQ. In September, after years of litigation, the European Court of Human Rights found that GCHQ’s mass surveillance programs violated important human rights principles of privacy and free speech. While the court in the Big Brother Watch case disappointingly left open the possibility that mass surveillance can be consistent with these human rights, it found that the safeguards intended to limit GCHQ’s activities were woefully inadequate.
In addition to progress in Jewel, we can look forward to a number of other developments in 2019. On the litigation front, the appeals court in United States v. Hasbajrami will likely issue its ruling on whether warrantless NSA surveillance violated a defendant’s Fourth Amendment rights. And Congress will once again take up Section 215, the law that NSA relied on to collect Americans’ phone call records for decades until it was reformed in 2015 as part of the USA Freedom Act. Section 215 is set to expire in December 2019, and we’ll be drawing on our experience with USA Freedom and the largely disappointing reforms to Section 702 at the beginning of this year.
Ensuring that national security doesn’t become an excuse for ubiquitous untargeted surveillance isn’t easy. And it doesn’t move quickly. But in the end, it is one of the most enduring and important battles to ensure that freedom continues to exist in the digital world.
This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2018.
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