By Josie Wales
A federal appeals court has unanimously reversed part of a lower court’s dismissal of a lawsuit filed by the American Civil Liberties Union for Wikimedia, which challenges the NSA’s mass surveillance and collection of Internet communications.
The suit was originally filed in 2015 by the ACLU on behalf of the Wikimedia Foundation, Amnesty International, and Human Rights Watch, among others, and centered around the NSA’s “Upstream” surveillance program, which intercepts data from the Internet backbone cables carrying the online messages, web searches, and emails of U.S. citizens. Upstream operates under Section 702 of the Foreign Intelligence Surveillance Act, a statute the government uses to conduct warrantless surveillance on Americans who communicate with targets located outside of the United States.
The case was shot down in October 2015 when U.S. District Judge T.S. Ellis III ruled that the case was based on “the subjective fear of surveillance,” at the time claiming the plaintiffs had “not alleged facts that plausibly establish that the NSA is using Upstream surveillance to copy all or substantially all communications passing through those chokepoints…In this regard, plaintiffs can only speculate.”
However, on Tuesday, the Fourth Circuit Appeals Court ruled that the Wikimedia Foundation had adequately provided a basis for their claims, allowing them to move forward with the lawsuit. The judges’ decision stated:
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. 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.
By a 2-1 vote, the panel also ruled that the other plaintiffs lacked standing to move forward. Circuit Judge Albert Diaz noted that since the other organizations have smaller digital footprints, it’s harder for them to “plausibly establish that the NSA is intercepting ‘substantially all’ text-based communications.”
Nevertheless, ACLU attorney Patrick Toomey, who argued the appeal in December 2016, called the court’s decision “an important victory for the rule of law.” He went on:
Our government shouldn’t be searching the private communications of innocent people in bulk, examining the contents of Americans’ emails and chats day in and day out. This mass surveillance threatens the foundations of a free internet.