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9th Circuit Reverses District Court Dismissal of FISA and ECPA Complaints

In a case by private citizens seeking judicial redress for injuries stemming from the government's interception of domestic telephone and internet communications, the 9th Circuit has reversed a district court dismissal of lead plaintiff Carolyn Jewel's complaint for lack of standing. Jewel and other plaintiffs had alleged violations of their First and Fourth Amendment rights, the constitutional doctrine of separation of powers, and various statutes, including the Foreign Intelligence Surveillance Act (FISA), the Electronic Communications Privacy Act, the Stored Communications Act, (SCA), and the Administrative Procedure Act.

Named defendants include the National Security Agency, George W. Bush, former President of the United States, current President Barack Hussein Obama, and current U.S. Attorney General Eric H. Holder, among others.

Jewel's complaint alleged that she had been specifically affected by the acts of the defendants, in that "AT&T, in collaboration with the National Security Agency, (NSA), diverted all of her internet traffic into 'SG3 Secure Rooms' in AT&T facilities across the country, including AT&T's Folsom Street facility in San Francisco, 'and information of interest (was) transmitted from the equipment in the SG3 Secure Rooms to the NSA based on rules programmed by the NSA.'" She also alleged that defendants were directly involved in the scheme, which were "directly performed and/or aided, abetted, counseled, commanded, induced, or procured, by Defendants."

The government moved to dismiss and sought summary judgment as to all claims, and additionally claimed lack of jurisdiction, also invoking the state secrets privilege and related statutory privileges. The district court dismissed, merely upon the issue of standing. According to the Appellate Court, "the district court erred in its decision, based upon Jewel's allegations of "concrete and particularized" injury, as well as the particularized grievance she complained of. "It does not matter how many persons have been injured by the challenged action so long as the party bringing suit ... show(s) that the action injures him in a concrete and personal way,'" Mass. v. EPA, 549 U.S. 497 (2007).

This case stands in contrast to the holding in ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007), because the ACLU was not able to "produce any evidence that any of their own communications have ever been intercepted." Jewel's harms were also held to be "fairly traceable to the challenged action" of the NSA, Simon v. E Ky. Welfare, 426 U.S. 26 (1976). The Court of Appeals rejected the effective imposition by the district court of heightened standards for consideration of Jewel's constitutional claims.

In conclusion, the Ninth Circuit reversed the district court's dismissal, and remanded with instructions to "consider, among other claims and defenses, whether the government's assertion that the state secrets privilege bars this litigation." See: Jewel v. National Sec. Agency, 673 F.3d 902 (9th Cir. 2011).

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Related legal case

Jewel v. National Sec. Agency