According to the Supreme Court, the legality of NSA mass surveillance can’t even be legally challenged.

This was the message the Court sent when it refused to take up Jewel v. NSA, allowing an appellate court decision to stand.

The high court’s decision further underscores the futility of depending on federal courts to challenge federal surveillance power. Tenth Amendment Center executive director Micheal Boldin called it “a really bad strategy.”

“We don’t expect it to ever get the job done.”

The Electronic Frontier Foundation (EFF) sued the NSA in 2008 on behalf of Carolyn Jewel and several other AT&T customers in an effort to end dragnet surveillance of millions of ordinary people. The EFF based its case on declarations from three NSA whistleblowers, along with other evidence that included documents published by the Washington Post and the Guardian. The evidence showed that the NSA collected communication directly from fiber optic cables. It also revealed a domestic telephone record collection program that the government confirmed in 2013.  Mark Klein worked as an AT&T tech who claimed the communications giant routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.

In 2015, U.S. District Judge Jeffrey White denied the plaintiffs’ challenge saying that it would require “impermissible disclosure of state secret information” The Ninth Circuit of the U.S. Court of Appeals upheld the district court opinion, affirming that “state secret privilege” blocked the plaintiff’s efforts to tp prove that their data was intercepted. Unable to prove that, they had no standing to sue.

As EFF put it, the Supreme Court allowed the case to be dismissed because the surveillance program that everybody has known about since Edward Snowden released a trove of documents in 2013 is a “secret.”

 “Yes, you read that right: something we all know is a still officially a “secret” and so cannot be the subject to litigation.”

As the EFF explains, the U.S. government contends that “even if all of the allegations of serious law-breaking and Constitutional violations are true, surveillance of millions of ordinary Americans is exempt from judicial review.”

The fact that the Supreme Court effectively upheld the Ninth Circuit’s decision is disappointing but not surprising. Federal courts have an abysmal track record when it comes to reining in warrantless federal government surveillance despite the fact that it clearly violates the Fourth Amendment. Federal courts almost always side with the federal government when it comes to surveillance, especially if “national security” is involved. In fact, the Supreme Court has whittled the Fourth Amendment into a shell with all of its exceptions and contingencies.

Suing in federal court will never stop the national surveillance state. We have cut it off at the roots by denying it necessary resources supplied by state and local governments (i.e. energy and water). Banning “material support or resources” to NSA mass surveillance programs have the potential for a massive impact on the spy agency.

We can also minimize data collection at the state and local levels by banning or limiting the use of surveillance technology and restricting data sharing. In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. The enactment of laws limiting or prohibiting the use of surveillance technology strikes a major blow to the surveillance state and would be a win for privacy.

Mike Maharrey