Federal courts again dismiss claims related to NSA warrantless wiretapping

In the latest setback for the Electronic Frontier Foundation and its efforts to hold the National Security Agency accountable for its mass surveillance of phone calls and emails, a federal district court dismissed with prejudice two actions filed by the EFF on behalf of American citizens. The U.S. District Court for the Northern District of California ruled that the plaintiffs’ claims were not “sufficiently particular to those plaintiffs or to a distinct group to which those plaintiffs belong,” but instead constitute a “generalized grievance shared in substantially equal measure by all or a large class of citizens.” Writing for the court, Justice Vaughn Walker cited as precedent a finding in Seegers v. Gonzales: “injuries that are shared and generalized — such as the right to
have the government act in accordance with the law — are not sufficient to support standing.” This essentially means that the courts have found that since the government is monitoring everyone(the case uses the participation of AT&T to extrapolate to all major telecommunications providers; EFF has focused its legal action on AT&T among telcos due to the existence of documentation leaked by a former AT&T employee that ostensibly shows that AT&T participated in the illegal wiretapping program), the surveillance can’t be prevented by the courts, even if it is illegal.

This is the second legal defeat for the EFF in the past year. Last June, the same judge in the same federal district court ruled in favor of AT&T as a defendant in Hepting v. AT&T, in which the EFF sued the telco giant for cooperating in the NSA’s warrantless wiretapping program. Initially filed in 2006, the case had made it to an appeal to the 9^th Circuit in 2007 before the government, in enacting the FISA Amendments Act of 2008, granted retroactive immunity to telecommunications companies that had violated the Foreign Intelligence Surveillance Act (FISA). It’s strange enough to make sense of a legal construct that at once forbids warrantless wiretapping and forgives it as long as it is conducted broadly enough; it’s particularly hard to fathom in the context of government-sponsored monitoring of personal communications sparked by the recent Chinese-based hacking incidents.