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Former NSA employees give evidence in online surveillance case

Former employees present evidence against the NSA for illegally seizing and storing electronic communications and passing through US "intercept centers."
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U.S. President Barack Obama signs a proclamation to designate federal lands within the former Fort Ord as a national monument in the Oval Office of the White House April 20, 2012 in Washington, DC. According to the White House, "Fort Ord, a former military base located on California’s Central Coast, is a world-class destination for hikers, mountain bikers, and outdoor enthusiasts who come to enjoy the area’s history and scenic landscapes." (Chip Somodevilla/AFP/Getty Images)

Three former National Security Agency (NSA) employees say the organization has illegally obtained and stored private electronic communications. 

The former NSA officials were presenting formally evidence to a US District Court, joining the Electronic Frontiers Foundation, an online privacy advocacy organization, in giving evidence that the NSA have illegally obtained electronic correspondence for US citizens.

With the motion filed earlier this month, the Electronic Frontiers Foundation is asking the court to reject the government state secrets privilege, exempting the organizations from prosecution for reasons of national security. The lawsuit has returned to district court after the US Circuit Court of Appeals reinstated the case late last year. 

In the motion, the former NSA officials said that, following the Sept. 11 attacks, the NSA was given the technical capability to monitor and store electronic communications. But, at the same time, the agency was not given the capability to protect the privacy of US citizens or to look for specific pieces of electronic correspondence. 

“…the NSA had the capability to do individualized searches (similar to a Google search) for particular electronic communications through such criteria as target addresses, locations, countries and phone numbers, as well as watch-listed names, keywords, and phrases in email. The NSA also has, or is in the process of obtaining, the capability to store all electronic communications passing throughthe NSA’s intercept centers, using tools like the fiber-optic splitter cabinet described above," the motion read.

The motion also detailed a strategy for collecting data from electronic communication that requires the analysis of a large number of correspondence, violating privacy of individuals not involved in an investigation.

"...according to several retired NSA employees, the NSA did not have the technical capability to both protect the privacy of U.S. persons and collect and smartly select on the fly the nuggets of information it sought from the large volume of data traversing the Internet,” the motion read.

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The three former NSA employees were also the subjects of a federal investigation into leaks made to the New York Times that sparked the initial news coverage of the NSA’s warrantless wiretapping program. All three have been cleared of charges. 

"For years, government lawyers have been arguing that our case is too secret for the courts to consider, despite the mounting confirmation of widespread mass illegal surveillance of ordinary people," Cindy Cohn, the legal director at the Electronic Frontiers Foundation,  said in a press release.

The lawsuit brought forth by the Electronic Frontiers Foundation, Jewel v. NSA, challenges the state secrets privilege, which is used mainly BY US government organizations and officials. Citing this priviledge, the government has managed to keep the case out of the US courts systems for matters pertaining to national security. 

"The NSA warrantless surveillance programs have been the subject of widespread reporting and debate for more than six years now. They are just not a secret," said EFF Senior Staff Attorney Lee Tien in a press release.

"Yet the government keeps making the same 'state secrets' claims again and again. It's time for Americans to have their day in court and for a judge to rule on the legality of this massive surveillance."

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