After hearing arguments from both sides, a federal judge has dismissed Wikimedia v. NSA — a major case that challenged the U.S. National Security Agency’s sweeping “Upstream” surveillance program, arguing that it was unconstitutional.
For those who might not recall the case, here’s a quick refresher: Back in March, the ACLU filed suit against the NSA on behalf of the Wikimedia Foundation and eight other organizations. The lawsuit challenged “the suspicionless seizure and searching of Internet traffic by the National Security Agency (NSA) on U.S. soil,” asserting that, “the NSA conducts this surveillance, called ‘Upstream’ surveillance, by tapping directly into the internet backbone inside the United States — the network of high-capacity cables, switches, and routers that today carry vast numbers of Americans’ communications with each other and with the rest of the world.”
More specifically, the ACLU claimed that the NSA’s surveillance program “exceeds the scope of the authority that Congress provided in the FISA Amendments Act of 2008 (FAA) and violates the First and Fourth Amendments. Because it is predicated on programmatic surveillance orders issued by the Foreign Intelligence Surveillance Court (FISC) in the absence of any case or controversy, the surveillance also violates Article III of the Constitution.”
However, after a lengthy hearing process, Judge TS Ellis III tossed out the ACLUs case, ruling that the plaintiffs did not have enough information to plausibly make such a claim. Despite the fact that the existence of the Upstream program has been confirmed by government officials, judge Ellis ruled that just because the NSA has the technical ability to monitor all our online communications, it doesn’t necessarily mean they are doing so. “Plaintiffs provide no factual basis to support the allegation that the NSA is using its surveillance equipment at full throttle,” he wrote. “In the end, plaintiffs’ standing argument boils down to suppositions about how Upstream must operate in order to achieve the government’s stated goals.”
Basically, Judge Ellis concluded that the plaintiffs had to speculate about key elements of the NSA’s Upstream program, and due to precedent established in Amnesty v. Clapper — a 2013 Supreme Court ruling on a similar challenge — their case could not go forward.
In a response on its blog, the ACLU fired back, claiming that “the court misunderstands how upstream surveillance is fundamentally different from and much more intrusive than the surveillance considered by the Supreme Court in Amnesty v. Clapper,” adding that “given how much is in the public record about upstream surveillance, our clients’ allegations are not ‘speculative’ or ‘hypothetical.'”
The ACLU said it is considering an appeal, however, so the fight may not be over just yet.