Warrantless Surveillance 101: Introducing EFF's New NSA Domestic Spying Guide

On December 14th, EFF is back in federal court challenging the NSA’s domestic spying program in our long-running case Jewel v. NSA. In anticipation of our court appearance, we’ve launched a new section of our website to give everyone a clear understanding how the NSA warrantless wiretapping program works and why we’re challenging it as unconstitutional.

While the government claims the NSA’s infamous program is too secret to be litigated, it isn't a secret—and we’ve catalogued the trove of information that has become public since it was first revealed by the New York Times in 2005. This including declarations under oath by an AT&T whistleblower and three NSA whistleblowers, sworn testimony before Congress, investigations by government Inspectors General and stories by major media organizations based on highly placed sources, along with public admissions by government officials.

You can now view our NSA domestic spying timeline, an explanation of how the NSA conducts the spying, a history of the controversial ‘state secrets’ privilege (which the government is invoking in an attempt to have our lawsuit dismissed), and a breakdown of how the government uses word games when talking about the program to hide what they’re doing.

Here’s a more detailed look at the new features:

Our NSA Domestic Spying Timeline lays out key events in the history of the Program and this litigation, based on these categories of sources:

1. Inspectors General Report: The Inspectors General report on the Program, summarizing the unclassified findings of five different agencies;
2. Sworn testimony: The evidence given in Congressional hearings, court declarations, and other legal documents.
3. Named Government Officials: Information obtained from media investigations that based on accounts from named government officials
4. Unnamed Government Officials: Information obtained from media investigations that based on accounts from unnamed government sources; and
5. Court Events: All the notable court actions like decisions, oral arguments, and important legal briefs in the numerous warrantless wiretapping legal cases;

Each timeline entry conveys the event, a larger explanation, and a link to the source document.

Our How Warrantless Wiretapping Works page explains our allegations, based on the hard evidence we have, on the scope of the domestic spying program and how the government has implemented it. The page summarizes the information from documents given to EFF by AT&T whistleblower Mark Klein, and analysis by technical experts, to explain how the government tapped into the backbone of American communications, the equipment it implemented, and what private information the NSA has access to.

Our State Secrets Privilege page explains the controversial legal tool the government is attempting to invoke to have our case dismissed before a judge can hear our evidence. The government argues, despite all the public evidence, that the Program is a “state secret,” and therefore the case should be dismissed immediately even if the government violated the law or the Constitution. As we’ve explained to the Court, the Foreign Intelligence Surveillance Act (FISA) supersedes the state secrets privilege, providing a specific avenue for the judge to allow our claims to go forward while protecting national security. Moreover, as this page details, we can proceed on the public evidence without needing any properly designated state secrets.

Our Government Word Games page shows how government officials talk about warrantless surveillance in public and in court to obscure its nature and legality. When officials use several words like "collect," “surveillance” and “communications,” they define the words much differently than ordinary people do. These definitions allow the government to obscure or mis-describe the true nature of the program and makes seem like they are denying certain facts when, in actuality, they are not.

On December 14th, we hope that the Northern District of California federal court will agree with us that our case challenging illegal domestic spying should move forward. Warrantless wiretapping isn't a state secret—it's a clear violation of FISA, other laws, and the Constitution. Government secrecy claims should not mean that the violation of the privacy rights of millions of ordinary Americans is swept under the rug.