FAQ on NSA Spying (General Questions)

What is the NSA domestic spying program?

In October 2001, President Bush issued a secret presidential order authorizing the NSA to conduct a range of surveillance activities inside of the United States without statutory authorization or court approval, including electronic surveillance of Americans’ telephone and Internet communications. This program of surveillance continues through today, although the legal justifications have changed over time, and works with the major telecommunications and Internet companies.

In 2005, after the New York Times broke the story of the surveillance program, the President publicly admitted one portion of it—warrantless surveillance of Americans believed to be communicating with people connected with terrorism suspects—Senior Bush Administration officials later confirmed that the President’s authorization went beyond the surveillance of terrorists and conceded that the program did not comply with the Foreign Intelligence Surveillance Act (FISA). The President, invoking a theory of limitless executive power to disregard the mandates of Congress, reauthorized this warrantless surveillance more than thirty times, including after the Department of Justice found the program to violate criminal laws. President Obama has continued the program, but with differing secret legal justifications. Obama has given no public legal justification for it and, in some situations, appears to be strategically denying certain portions of it. For other portions, including the collection of telecommunications records, the Obama Administration said it could neither confirm nor deny its actions until May, 2013, when the DNI finally admitted additional portions of it. Members of Congress have confirmed that additional domestic surveillance by the NSA still remains a secret.

Shortly after the initial revelations, a whistleblower named Mark Klein came forward with evidence describing the specific AT&T facilities, including one on Folsom Street in San Francisco, where the handoff of customer communications is occurring. Mr. Klein's evidence confirmed what was already indicated by numerous newspaper reports and Congressional admissions—that the NSA is intercepting and analyzing millions of ordinary Americans' communications off of the fiber optic cables that carry our communications, with the help of the country's largest phone and Internet companies. EFF has brought two lawsuits to stop this illegal surveillance. In 2012, three NSA whistleblowers came forward to confirm Mr. Klein’s evidence, as well as other information about the warrantless surveillance.

Today, the warrantless surveillance program started under Bush remains largely intact under the Obama administration, and, in June 2013, reports in the Guardian and Washington Post confirmed key facts alleged in our cases, and provided supporting documents.

While the full legal justifications remain secret, the Obama administration apparently uses strained interpretations of the Patriot Act and FISA Amendments Act to try to justify the mass collection of data on US persons, but the reality is the same as it was under the Bush administration: these program are illegal and unconstitutional.

Click here for a complete overview of the NSA Domestic Spying program.

What do the cases claim about the interception of domestic communications of millions of Americans?

The Jewel v. NSA case alleges that the government, in coordination with AT&T, intercepts communications (like phone calls and emails), and that AT&T illegally discloses communications records to the government. The core component of the surveillance is the government's nationwide network of sophisticated communications surveillance equipment, attached to the key facilities of telecommunications companies such as AT&T that carry Americans' Internet and telephone communications.

Our second case, First Unitarian Church v. NSA (which you can read about here) focuses on the violation of the First Amendment right to association through the mass collection of phone metadata purportedly supported by a secret interpretation of the Patriot Act. Through this shadow network of surveillance devices, the government has acquired and continues to acquire the records of communications—who talked to who, when and how often, both international and domestic, of practically every American who uses the phone system in an unprecedented suspicionless general search through the nation's communications networks. First Unitarian Church v. NSA argues that this spying violates the First Amendment, which protects the freedom to associate and express political views as a group.

See more in our FAQ about the Jewel case and First Unitarian Church case.

What do the cases claim about the telephone records of millions of ordinary Americans?

The government has unlawfully solicited and obtained from telecommunications companies, such as AT&T and Verizon, the complete and ongoing disclosure of the private telephone transactional records of those companies' millions of customers, communications records indicating who the customers communicated with, when and for long, among other sensitive information. This transactional information is analyzed by computers in conjunction with the vast quantity of communications content acquired by government's network of surveillance devices, in what has been described as a vast data-mining operation.

Does telecom immunity affect Jewel or First Unitarian Church cases?

No. The retroactive immunity Congress passed in 2008 only applies to telecommunications carriers, not the government.

Is EFF challenging the targeted surveillance of communications with members of Al Qaeda?

No. The lawsuits are about the dragnet untargeted surveillance of millions of ordinary Americans, like the plaintiffs, who have the right to go about their daily lives without the government intercepting their communications or rifling through the records of their communications.

Does the domestic spying program produce better results than targeted FISA court orders?

No. The Inspectors General report on the Program found the intelligence agencies “had difficulty citing specific instances where [Program] had directly contributed to counterterrorism successes.” Other reports have shown that the data from this wholesale surveillance did little more than commit FBI resources to follow up leads, "virtually all of [which], current and former officials say, led to dead ends or innocent Americans."

For instance:

"We'd chase a number, find it's a school-teacher with no indication they've ever been involved in international terrorism—case closed," said one former FBI official, who was aware of the program and the data it generated for the bureau. "After you get a thousand numbers and not one is turning up anything, you get some frustration."

— Lowell Bergman, et al, Spy Agency Data After Sept. 11 Led F.B.I. to Dead Ends, NY Times, Jan. 17, 2005.

Wasting counter-terrorism resources on innocent school-teachers makes America less free and no safer.

Are ordinary American's domestic communications included in the surveillance?

Yes. The lawsuits alleges that AT&T, plus Verizon and other major telecommunications companies have provided the government with unfettered access to the communications records of ordinary Americans. This includes both the customers themselves and anyone who communicates with a customer of the telecommunications companies. It includes international and purely domestic communications.

Is the fight against warrantless spying on ordinary Americans a partisan issue?

No. EFF is a non-partisan organization and has consistently opposed illegal surveillance efforts, regardless of which party held the presidency. Opposition to the domestic surveillance program has come from both Democrats and Republicans. As David Keene, chairman of the American Conservative Union said, "This is not a partisan issue; it is an issue of safeguarding the fundamental freedoms of all Americans so that future administrations do not interpret our laws in ways that pose constitutional concerns."

Where can I read more about the NSA surveillance program?

NSA Domestic Spying Timeline

How we think the program works

Federation of American Scientist's NSA page

What is the National Security Agency?

The National Security Agency/Central Security Service (NSA/CSS or NSA) was founded in 1954 and is headquartered in Fort Meade, Maryland. It is responsible for collecting, processing, and disseminating intelligence information from foreign electronic signals for national foreign intelligence and counterintelligence purposes and to support military operations. NSA/CSS is also tasked with preventing foreign adversaries from gaining access to classified national security information.

What can I do to help?

Lawsuits take a tremendous amount of time, energy, and financial resources. The only way non-profits such as EFF can afford to pursue them are through the kind and generous donations of individuals such as you. If you believe in what we are fighting for, please consider donating to support our efforts.

FAQ on EFF's case against NSA (Jewel v. NSA)

What is Jewel v. NSA about?

Jewel v. NSA challenges an illegal and unconstitutional program of dragnet communications surveillance conducted by the National Security Agency (NSA) and others in concert with major telecommunications companies like AT&T.

What is the goal of the Jewel v. NSA lawsuit?

The most important goal is to end the illegal surveillance, and to have it declared illegal and unconstitutional. The suit also seeks to further insure against future law breaking by seeking an award of damages for the five individual plaintiffs—not only from the government, but also from the individual government officials responsible for creating and implementing the surveillance.

What legal claims are being raised in the Jewel v. NSA lawsuit?

Violation of the Fourth Amendment to the Constitution

Violation of the First Amendment to the Constitution

Unlawful electronic surveillance or disclosure or use of information obtained by electronic surveillance in violation of 50 U.S.C. §1809

Unlawful interception, use or disclosure of Class communications in violation of 18 U.S.C. § 2511

Unlawful solicitation and obtained disclosure of the contents of communications in violation of 18 U.S.C. § 2702(a)(1) or (a)(2)

Unlawful solicitation and obtained disclosure of non-content records or other information in violation of 18 U.S.C. § 2702(a)(3)

Violation of the Administrative Procedures Act

Violation of the constitutional principle of separation of powers

Who is bringing the Jewel v. NSA lawsuit?

The lawsuit is brought by five people. The plaintiffs are ordinary Americans who all use AT&T as their communications provider, some for phone, some for internet. They bring some of their claims as individuals and others on behalf of all AT&T customers.

Who is being sued?

The lawsuit is against the United States Government itself, a number of government agencies, as well as a number of current and former agency officials who participated in or ordered the illegal surveillance. The claims on behalf of all AT&T customers seek a declaration that the surveillance is illegal and an injunction to stop it, while the individual plaintiffs also seek damages against all the defendants (except for the President, who the courts have ruled has absolute immunity against civil damages claims). The specific defendants are the United States, the National Security Agency, the Department of Justice, President George W. Bush, Vice President Dick Cheney, Cheney's Chief of Staff David Addington, NSA Director Keith B. Alexander, CIA Director Michael V. Hayden, Attorney General Michael B. Mukasey, former Attorneys General Alberto Gonzales and John D. Ashcroft, Director of National Intelligence Michael McConnell, and former DNI John Negroponte.

Why are the individuals being sued?

The individuals are the architects and the operators of a massive illegal domestic surveillance program. Each of them swore to uphold the law and the Constitution upon taking office, and had a responsibility to defend ordinary Americans from illegal surveillance, not perpetrate it.

Moreover, the PATRIOT Act made it more challenging to sue the government itself for past violations of the law, basically encouraging such suits to be brought against individual governmental officials rather than the government itself. Since the warrantless surveillance has now been going on for many years and may have changed in some ways over time, the claims against the individuals are the best way to ensure that the court rules on the legality of any past surveillance as well as ruling on the current surveillance. The damages claims against the individual government officials are only brought on behalf of the five individual plaintiffs, instead of the class.

If the lawsuit succeeds, will the government still be able to surveil terrorists?

Yes. Wiretaps on terrorists are allowed under the law, and this lawsuit is not challenging the wiretap laws. It’s seeking to apply the law to prevent illegal wiretaps on Americans, which the law prohibits.

Those surveilled are AT&T customers who have not even been accused of affiliations with terrorists.

Americans can be both safe and free: if the government truly believes it has cause to wiretap a suspect, it can order AT&T to provide information under the Foreign Intelligence Surveillance Act for up to 72 hours before going to the court. But the government should not have direct access to the communications of millions of ordinary Americans, without the checks and balances of Congress or the courts.

How is this case different from the lawsuits that are challenging the surveillance of people who are believed to be communicating with members of Al Qaeda, like the one brought by the ACLU?

This lawsuit arises from the untargeted, warrantless surveillance of millions of ordinary Americans. The ACLU lawsuits challenge the targeted warrantless surveillance of specific individuals. Both the untargeted surveillance and the targeted surveillance are part of the same overall program. While portions of the warrantless wiretapping have been called the Terrorist Surveillance Program for public relations purposes, the government has admitted that this is not the full extent of the warrantless surveillance program authorized by the President.

How does this case relate to the case against AT&T or any of the other cases against telecommunications carriers?

These cases are two sides of the same coin. Jewel v. NSA is only against the government, not the telecommunications carriers. As a society built upon the rule of law, both the government and the carriers must be held responsible for the illegal program. The cases against the carriers were, unfortunately, dismissed by the Courts after Congress passed a law allowing the Attorney General to demand their dismissal.

Does telecom immunity affect Jewel v. NSA case?

No. The immunity Congress passed only applies to telecommunications carriers, not the government.

Why didn't you sue the government until 2008?

In 2006, suing AT&T looked like the fastest way to halt the illegal surveillance. Unfortunately, Congress interfered with the judicial process in our case by granting immunity to telecoms that participated in the warrantless wiretapping program. In response, we are opening up a new front in this battle. Our top priority is to stop the ongoing illegal surveillance as soon as possible, and to hold those responsible for the program to account.

FAQ on First Unitarian v. NSA:

What is this lawsuit about, and who are the plaintiffs?

EFF has filed a new lawsuit seeking to stop the NSA Spying on telephone records of millions of Americans, called First Unitarian Church of Los Angeles v. NSA. The plaintiffs in the case are all associations—organizations that use their First Amendment rights, via their telephones, to bring people together to work to change policy or law or culture. The associations are suing on their own behalf as well as on behalf of their members. They are:

First Unitarian Church of Los Angeles

Bill of Rights Defense Committee

California Association of Federal Firearms Licensees

The Calguns Foundation

Council on American Islamic Relations

Franklin Armory

Free Press

Free Software Foundation

Greenpeace

Human Rights Watch

Media Alliance

National Organization for the Reform of Marijuana Laws, California

Open Technology Institute

People for the American Way

Public Knowledge

Students for Sensible Drug Policy

TechFreedom

Unitarian Universalist Service Committee

Why the focus on associations?

Our goal is to highlight one of the most important ways that the government collection of telephone records is unconstitutional: it violates the First Amendment right of association. When the government gets access to the phone records of political and activist organizations and their members, it knows who is talking to whom, when, and for how long. This so-called “metadata,” especially when collected in bulk and aggregated, tracks the associations of these organizations. After all, if the government knows that you call the Unitarian Church or Calguns or People for the American Way or Students for Sensible Drug Policy regularly, it has a very good indication that you are a member and it certainly knows that you associate regularly. The law has long recognized that government access to associations can create a chilling effect—people are less likely to associate with organizations when they know the government is watching and when the government can track their associations.

What is the factual basis for the case?

The case challenges the mass telephone records collection that was confirmed by the FISA Order that was published on June 5, 2013 and confirmed by the Director of National Intelligence (DNI) on June 6, 2013. The DNI confirmed that the collection was “broad in scope” and conducted under the “business records” provision of the Foreign Intelligence Surveillance Act, also known as section 215 of the Patriot Act and 50 U.S.C. section 1861.

The facts have long been part of EFF’s Jewel v. NSA case.

The case does not include section 702 programs, which includes the recently made public and called the PRISM program or the fiber optic splitter program that is included (along with the telephone records program) in the Jewel v. NSA case.

Background: First Amendment right of association

The First Amendment right of association is a well established doctrine that prevents the government “interfering with the right to peaceably assemble or prohibit the petition for a governmental redress of grievances.” The most famous case embracing it is a 1958 Supreme Court Case from the Civil Rights era called NAACP v. Alabama. In that case the Supreme Court held that it would violate the First Amendment for the NAACP to have to turn over its membership lists in litigation.

The right stems from the simple fact that the First Amendment protects the freedom to associate and express political views as a group. This constitutional protection is critical because, as the court noted “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association[.]” NAACP v. Alabama, 357 U.S. at 460. As another court noted: the Constitution protects freedom of association to encourage the “advancing ideas and airing grievances” Bates v. City of Little Rock, 361 U.S. 516, 522-23 (1960).

What harm does the First Amendment right of association seek to protect against?

The collection and analysis of telephone records give the government a broad window into our associations. The First Amendment protects against this because, as the Supreme Court has recognized, “it may induce members to withdraw from the association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of their exposure.” NAACP v. Alabama, 357 U.S. at 462-63. See also Bates, 361 U.S. at 523; Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 (1963).

Privacy in one’s associational ties is also closely linked to freedom of association: “Inviolability of privacy in group association may in many circumstances be indispensible to preservation of freedom of association, particularly where a group espouses dissident beliefs.” NAACP v. Alabama, 357 U.S. at 462.

What legal tests apply when the First Amendment is at issue?

The Supreme Court has made clear that infringements on freedom of association may survive constitutional scrutiny only when they “serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984); see also NAACP v. Button, 371 U.S. at 341; Knox v. SEIU, Local 1000, 132 S. Ct. 2277, 2291 (2012)

Here, the wholesale collection of telephone records of millions of innocent Americans’ communications records, and thereby collection of their associations, is massively overbroad, regardless of the government’s interest. Thus, the NSA spying program fails under the basic First Amendment tests that have been in place for over fifty years.

Is that all you’re arguing?

No. The new case will also argue the basic First and Fourth Amendment arguments that we’re also raising on behalf of individual AT&T customers in Jewel v. NSA. It will also raise a claim under section 215 of the PATRIOT Act since we believe the government is misinterpreting the statute—it does not allow bulk collection and searching without individual judicial approval. We also raise a Fifth Amendment claim for informational privacy and for vagueness, since the secret court rulings by the court overseeing the spying, the Foreign Intelligence Surveillance Court, give neither the public nor law enforcement clear rules and limits on their ability to surveil Americans.

What are the specific legal claims?

First Amendment Fourth Amendment Fifth Amendment right to informational privacy and vagueness 50 U.S.C 1861 (also known as Patriot Act section 215) Return of property

There may also be other legal claims added later.

Where is the case being filed?

The case is filed in the Northern District of California federal court and will likely be related to the Jewel v. NSA case and the Shubert v. Obama case currently pending there.

How does this case compare to Jewel v. NSA?

This case is a companion case to our long pending one, Jewel v. NSA, where the court—in July 2013—rejected the government’s claim of state secrets privilege. The Jewel case also addresses the phone records collection, but on behalf of individual AT&T customers in a class action. It also includes the claims of direct access by the NSA to the Internet content and records of our communications carried on the fiberoptic cables of AT&T. Those were first revealed by Mark Klein and recently confirmed in the secret NSA slides released by the Guardian and the Washington Post.

Why such strange bedfellows?

The First Amendment especially is designed to protect people in their associations without regard to what those associations are doing, so it’s not surprising that groups from across the political spectrum and whose focus is on a range of issues, some of which may conflict, all agree on the need for the protections of the First Amendment against government access to the records of who they associate with, when, for how long and at what frequency.

FAQ on EFF's Case Against AT&T (Hepting v. AT&T)

What was EFF's lawsuit against AT&T, called Hepting v. AT&T, about?

EFF filed a class-action lawsuit against AT&T, accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in its massive and illegal domestic spying program to wiretap and data-mine Americans' communications.

What was the lawsuit seeking?

EFF, on behalf of a nationwide class of AT&T customers, sued to stop this illegal conduct and hold AT&T responsible for its illegal collaboration in the government's domestic spying program, which violated the law and damaged the fundamental freedoms of the American public. The lawsuit requested an injunction and damages under the statute.

If the NSA did the illegal wiretapping and data-mining, why did you sue AT&T?

AT&T also violated the law, and the rights of its customers, by allowing and assisting with the illegal wiretapping and data-mining. The government's spying program would not be possible without AT&T's collaboration. AT&T should have been standing up for you and your privacy. In this country, we follow the law, we don't just follow orders.

EFF also has a case against the government called Jewel v. NSA.

Why did EFF bring a class action against AT&T?

We believe that all AT&T customers have had their privacy violated by AT&T's actions. And importantly, bringing the case as a class action is the only sure way to make sure AT&T is prohibited from continuing these illegal actions. A class action ensures that an injunction against AT&T would apply throughout the country, not simply in the district in which the lawsuit was filed. Finally, we hope that the risk of serious statutory damages ($1,000 per subscriber under the ECPA and up to $10,000 per subscriber under the Telecom Act) will provide sufficient incentives for AT&T and the other telcos to push back on the government with respect to this illegal program and in the future.

Who exactly was the case against?

Both AT&T Inc. and AT&T Corp. AT&T Inc. is the new name of SBC Communications, which acquired AT&T Corp. in November 2005. At closing, a wholly owned subsidiary of SBC merged with and into AT&T Corp., and thus AT&T Corp. became a wholly owned subsidiary of SBC. SBC adopted AT&T Inc. as its name following completion of its acquisition of AT&T Corp.

Why was the case against both AT&Ts?

While the case focused on the acts of AT&T Corp. (pre-merger), AT&T Inc. began a transition process designed to integrate the former SBC's telecommunications network with AT&T Corp.'s network, ultimately leading into unified networks. The lawsuit alleged that the facilities and technologies of the former SBC were being or would imminently be used to transmit the communications of AT&T Corp. customers, and would continue the violation of the privacy of its customers.

How many customers did AT&T have?

By the end of 2004, AT&T Corp. provided long distance service (including both stand-alone and bundled) to approximately 24.6 million residential customers, dropping from approximately 34.4 million customers at the end of 2003. Before the acquisition, AT&T Corp.'s bundled local and long distance service was available in 46 states, covering more than 73 million households.

How big is the new AT&T Inc.?

The new AT&T Inc. constitutes the largest telecommunications provider in the United States and one of the largest in the world. AT&T Inc. is the largest U.S. provider of both local and long distance services, serving millions of customers nationwide. AT&T Inc.'s international voice service carries more than 18 billion minutes per year, reaching 240 countries, linking 400 carriers and offering remote access via 19,500 points of presence in 149 countries around the globe. A point of presence is a facility where a long-distance carrier connects to a local telephone network.

Why were the First and Fourth Amendments at issue for AT&T?

The First and Fourth Amendments were at issue because AT&T acted as the government's agent in the government's violation of the Bill of Rights. Accordingly, the lawsuit made Constitutional claims in addition to alleging that AT&T violated the wiretap and telecommunications laws.

What about telecom immunity?

In response to the cases seeking to hold the telecoms accountable for their actions, the Bush Administration demanded that Congress give the telecoms retroactive immunity.

In July of 2008, Congress gave in to the president's demand, passing the FISA Amendments Act (FAA). In addition to expanding the executive's spying powers, the unconstitutional law allowed the Attorney General to file a certification designed to give immunity to the telecoms, and thereby to keep the courts from ruling that the warrantless wiretapping program was illegal. EFF challenged the immunity law as unconstitutional, but that challenge failed.

Why are the FAA immunity provisions unconstitutional?

The FAA unconstitutionally attempts to take the factual and legal decision-making away from the courts for both statutory and constitutional claims. To the extent that the FAA purports to retain the court’s role in these cases, it does so only by turning the court, and the process of adjudication, into a shadow-play of empty gestures hidden by Executive-controlled secrecy. Unfortunately, the courts did not accept this argument.

What is the status of Hepting v. AT&T case?

In June of 2009, a federal judge dismissed Hepting and dozens of other lawsuits against telecoms, EFF appealed that decision but it was affirmed, and in October, 2012, the Supreme Court declined to hear the case. A complete summary can be found on our Hepting Case Page.