A lawsuit challenging electronic surveillance by the National Security Agency will go forward, a federal appeals court ruled Tuesday.
Wikimedia can now make the case that the NSA is unconstitutionally spying on Americans though a program called “Upstream” — collecting communications as they travel in or out of the country through the main cables of the Internet.
“Wikimedia has plausibly alleged that its communications travel all of the roads that a communication can take, and that the NSA seizes all of the communications along at least one of those roads,” wrote a three-judge panel of the Richmond-based U.S. Court of Appeals for the 4th Circuit. “Thus, at least at this stage of the litigation, Wikimedia has standing to sue for a violation of the Fourth Amendment. And, because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the First Amendment.”
The ruling revives a lawsuit that had been killed by a federal judge in Maryland who had said Wikimedia could not prove when the surveillance was taking place and therefore had not convinced the judge that it should be allowed to sue over possible harm.
Because Wikimedia engages in more than a trillion international communications a year with individuals in virtually every country, the appeals judges ruled, it is plausible to conclude that some of those communications have been collected by the NSA.
The three-judge panel agreed with the lower court that eight other plaintiffs in the case — including the Nation magazine and Amnesty International — do not have standing to bring a case. Those plaintiffs had argued that through Upstream, the NSA is “intercepting, copying, and reviewing substantially all” text-based communications that leave and enter the country.
Two of the three judges found that there were not enough facts to support a claim of a “dragnet.” The third dissented, arguing that the NSA plausibly must surveil virtually every backbone cable to capture targeted communications.
The lower court had relied on a 2013 Supreme Court decision dismissing a lawsuit challenging the NSA’s warrantless wiretapping program on grounds that the plaintiffs could not prove they had been spied on. Since that ruling, however, disclosures by Edward Snowden allowed Wikimedia to make more concrete claims about how surveillance works.
“The government for years has used all kinds of procedural mechanisms to keep the public courts from judging this surveillance on the merits and examine whether it’s constitutional,” said Patrick J. Toomey of the American Civil Liberties Union, who argued the case. “This type of surveillance has had a significant impact on freedom of expression and privacy.”
The Department of Justice did not immediately return a request for comment on the appeals ruling.