, 19 tweets, 5 min read Read on Twitter
In court this morning covering the government's motion to swat down a lawsuit claiming the NSA's bulk collection of Americans' phone & internet data violates the law. @CourthouseNews
The gov't claims the plaintiffs lack standing to sue because they can't specifically prove that their personal data was collected. The plaintiffs say they have documents showing the gov't ordered phone companies to share American's personal data.
DOJ attorney says Judge White can't consider "secret evidence" for the purpose of standing. That evidence can only be used to determine if the collection of data is lawful, he says. Judge White's reply: "What authority says the court can't use it for standing?"
DOJ lawyer says the plaintiffs can't use a letter inadvertently disclosed to NYT as evidence of standing. The letter lists phone companies (AT&T, Verizon, Sprint) that were ordered to turn over Americans' data to the gov't. DOJ says the gov can't confirm its authenticity.
DOJ says the judge can't consider @Snowden's declaration authenticating documents about the NSA surveillance program because Snowden merely "had access" to the document, but did not "write it, sign it, or use it."
.@EFF lawyer for the plaintiffs: "They can't shrink the public evidence by saying we don't like that, we don't think it should be in the public evidence."
.@EFF lawyer: "Saying Mr. Snowden can't testify in the future is not grounds to say this is not an authentic document."

Judge: "Do you have any notion that Mr. S is willing to testify and subject himself to U.S. jurisdiction?"

Reply: "He can testify remotely" from Russia
.@EFF lawyer says unlike previously defeated challenge against Prism program which obtained emails of Americans who communicated w/ foreign targets, the Upstream program intercepts all communications directly from the internet backbone.
DOJ insists the plaintiffs can't establish standing without relying on classified evidence, which cannot be disclosed because it would threaten national security. The plaintiffs disagree & say the evidence has already been made public.
"We don't think that simple yea or nay will cause harm," - @EFF lawyer's response to judge's question: How can the court issue a ruling in this case w/out threatening national security?
"Much of the trial would be out of the public eye. That's not preferable obviously, but that's the system that congress has set up ," - @EFF lawyer's response to judge's ?: How would a trial challenging the NSA program work?
DOJ lawyer: "Your honor said in his 2013 opinion whether plaintiffs in this case are subject to surveillance is a valid state secret."
Judge White manages to sneak in a veiled barb about Trump: "How much deference must the court give to the intelligence community? Not everyone gives deference to the intelligence community."
"Nothing has changed since your honor denied plaintiffs' motion for access in June last year. It would be unprecedented for any court to do this," - DOJ lawyer replying to judge's ?: Why not deputize a plaintiffs' lawyer to view the classified info?
DOJ lawyer: "Even if [@EFF laywer] Wiebe was cleared [to see classified info], your honor can still not issue an opinion and order money to be paid. That very fact would reveal a classified [secret]," on legal challenge to NSA's bulk collection of Americans' phone / inet data.
now on 15-minute break.
Back from break. @EFF lawyer to Judge White: "The gov't's sweeping evasion of FISA and violation of civil liberties on a massive scale is equally unprecedented" (as authorizing a plaintiffs' attorney to view classified evidence).
.@EFF lawyer says this recent 9th Circuit ruling, Fazaga v. FBI, forbids the use of state secrets privilege to dismiss a case challenging gov't actions relating to national security. courthousenews.com/ninth-circuit-…
DOJ lawyer: "Only aggrieved persons can trigger the use of [secret evidence] procedures," arguing the judge can't consider classified evidence to determine if plaintiffs' records were collected, therefore giving them standing to sue.
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