OAKLAND – After eight years, a window of opportunity opened last month in Jewel v. NSA, a Fourth Amendment case involving the seizure of AT&T customers’ data by the National Security Agency.
Northern California District Judge Jeffery White authorized Electronic Frontier Foundation (EFF), which sponsors the plaintiffs, to conduct discovery on the NSA’s unwarranted collection and surveillance of private communications.
White’s decision to finally allow discovery may be due in part to a 35-page “amicus curiae” brief in support of the plaintiffs filed in the U.S. Court of Appeals for the Ninth Circuit last August by Herbert Titus of the firm William J. Olsen, P.C. Attorneys at Law in Virginia.
The term “amicus curiae” means “friend of the court” in Latin. The purpose of an amicus curiae brief is for a nonparty to bring to the attention of the court important issues and authorities that have not been raised or fully briefed.
“Our briefs are typically filed in defense of persons who are under attack by an overreaching federal government,” firm attorney Robert Olsen told the Northern California Record. “Our brief in the Jewel case was filed on behalf of a coalition of liberty-minded organizations that we have worked with in the past.”
The brief argued the NSA’s mass surveillance is unreasonable search and seizure per se under the Fourth Amendment, which prohibits general warrants against persons and their property even when that property is not visible to the naked eye. It also argued the state secrets doctrine cannot be used to cover up what most likely are grave, unprecedented and ongoing constitutional violations.
EFF called White’s decision to move the case from appeals to district court and to provide for the gathering of evidence “a groundbreaking legal victory.” The judge had previously rejected arguments based upon the Wiretap Act, the Foreign Intelligence and Surveillance Act, the Electronic Communications Privacy Act, and the Stored Communications Act.
Olsen, however, appears to be less than optimistic.
In a Feb. 21 blog for Americanthinker.com, a conservative daily online magazine dealing with political and governmental issues, he lamented that “even highly meritorious litigation against the government can be dragged out by government lawyers until the plaintiffs’ lawyers run out of money.”
He wrote of the twists and turns in the lengthy Jewel case, and said it demonstrates “how difficult it can be to force federal judges to confront the unconstitutionality of illegal actions by federal agencies – when the agency’s defense is ‘national security.’”
“Now the Jewel case is currently back -- for a third time – in the district court, and the plaintiff is attempting to pursue discovery,” Olsen said. “No doubt, this case will find its way in front of the Ninth Circuit [Court of Appeals] again; and at that point, we may consider filing another brief, depending on the issues involved.”
The coalition of organizations for which the brief was filed include: the U.S. Justice Foundation; Gun Owners of America Inc.; Gun Owners Foundation; Arizona State Chapter of the Association of American Physicians and Surgeons; Free Speech Coalition; Free Speech Defense and Education Fund; The Lincoln Institute for Research and Education; Downsize DC Foundation; The Abraham Lincoln Foundation for Public Policy Research Inc.; Institute on the Constitution; Conservative Legal Defense and Education Fund; and Policy Analysis Center.