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NSA's internet surveillance faces constitutional challenge in court

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The Electronic Frontier Foundation says the government's upstream data collection violates the Fourth Amendment

The Electronic Frontier Foundation (EFF) this week will challenge the National Security Agency (NSA) in a federal court, where the advocacy group will argue that the agency's web data collection program is unconstitutional. The hearing will be held on Friday morning in an Oakland court, marking what the EFF calls the first challenge to the NSA's upstream data collection program in a public court.

In its motion, the EFF argues that the NSA's program violates the Fourth Amendment by indiscriminately searching and copying web traffic collected from internet cables and nodes. The motion, Jewel v. NSA, was filed in 2008 after a former AT&T employee revealed that the NSA was routing copied internet traffic to a secret room in San Francisco. The case has since been bolstered by the massive trove of documents leaked by former NSA contractor Edward Snowden.

"The eyes and ears of the government now sit on the internet."

"The eyes and ears of the government now sit on the internet," EFF attorneys wrote in the motion. "The government indiscriminately copies and searches communications passing through the internet’s key domestic junctions, on what is called the internet 'backbone.' By doing so, the government is operating a digital dragnet — a technological surveillance system that makes it impossible for ordinary Americans not suspected of any wrongdoing to engage in a fully private online conversation, to privately read online, or to privately access any online service."

The NSA has said its program is legal under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which covers electronic surveillance of "non-US persons located outside the United States." A White House watchdog group earlier this year said the government's phone metadata collection program is illegal, but later determined that the NSA's internet collection programs — including upstream collection and PRISM — are legal.