The United States Court of Appeals for the Ninth Circuit today rejected the government’s latest attempt to delay consideration of whether the NSA’s tapping into the Internet backbone is legal in Jewel v. NSA, clearing the path for the first appellate court decision on whether this formerly secret mass surveillance program violates the Fourth Amendment.

At issue is one of the most controversial NSA programs, involving both seizing of Internet traffic as it passes through key switches online and the full-text content searches of a huge amount of the communications seized. The government admits this includes many communications between Americans inside the U.S. and people abroad, as well as messages that indicate that a crime has been committed (with no limitations on how serious or what type of crime) and all encrypted messages, all of which have full Fourth Amendment protection. More on the arguments here.

The government’s foot-dragging on this case is longstanding, and this marked the third time since February that it has tried to block this appeal, arguing that the Internet backbone surveillance cannot be considered until all of the many other issues in the Jewel case have been finally decided by the district court.

The Ninth Circuit didn’t reject the government’s claim entirely, however. Instead it deferred it to the full panel consideration of the surveillance. It also ordered that the hearing be held as soon as the full briefing is finished in the case, which should be completed in early October.