Court Chooses to Ignore Overwhelming Evidence of NSA’s Mass Internet Spying

A federal district court yesterday dismissed Wikimedia v. NSA, a lawsuit brought by the ACLU on behalf of a broad group of educational, legal, human rights, and media organizations whose communications are swept up by the NSA’s unprecedented Internet dragnet.

Our lawsuit concerns the NSA’s “upstream” surveillance, which involves the mass interception and searching of Americans’ international Internet communications. The court held that our clients lacked “standing” to bring suit, because they had not plausibly alleged that their communications were being monitored by the NSA. That’s just plain wrong.

The court’s opinion relies heavily on the Supreme Court’s decision in a previous ACLU lawsuit, Amnesty v. Clapper, a challenge to warrantless surveillance under the FISA Amendments Act of 2008. In February 2013, the Supreme Court dismissed that case on the grounds that the plaintiffs could not prove that they had communicated with the NSA’s targets.

But as we explained in court, our current challenge to the NSA’s warrantless spying is very different than the last one. Among other reasons, Clapper was decided prior to the Snowden revelations and extensive government disclosures about upstream surveillance. These revelations fundamentally changed the equation. Since Clapper, the public has learned that the NSA is not surveilling only its targets — it is instead surveilling virtually everyone, looking for information about those targets.

Some early takeaways from the district court’s opinion:

1.The court misunderstands how upstream surveillance is fundamentally different from and much more intrusive than the surveillance considered by the Supreme Court in Clapper.

Upstream surveillance is accomplished through the installation of devices directly on the Internet “backbone” — the network of high-capacity cables, switches, and routers across which Internet traffic travels. One particularly disturbing feature of upstream spying is known as “about” surveillance. Through this surveillance, the NSA is not simply plucking the communications to or from terrorists, spies, or other targets. Instead, it’s copying and searching through the contents of nearly everyone’s international communications, looking for information about its many targets. When the Supreme Court considered warrantless surveillance in Clapper, it was focused on whether the plaintiffs communicated with targets. At that time, the public had no idea that the NSA was essentially opening everyone’s international emails. Indeed, contrary to the district court’s understanding, “about” surveillance is in no way targeted:

PCLOB Report

2. The court ignores how Internet communications are structured — and why that requires the government to intercept at least some of our clients’ trillion-plus international communications.

Collectively, our clients engage in more than one trillion international Internet communications each year, with individuals in virtually every country on Earth. As we explained in our complaint, given the structure of the Internet, it is virtually impossible for the NSA to conduct upstream surveillance without intercepting at least some of plaintiffs’ communications. Yet the court dismissed these allegations, characterizing them as having “no basis in fact.”

complaint

3. Given how much is in the public record about upstream surveillance, our clients’ allegations are not “speculative” or “hypothetical.”

As the court acknowledged, at this early stage of the litigation, plaintiffs have to satisfy only a very low threshold: plausibility. Especially considering what’s publicly known about how upstream surveillance works, and the volume and distribution of our clients’ communications, their allegations are more than plausible.

Alternative document

4. The court’s opinion would insulate government surveillance from any legal challenge, except in cases where the government has already admitted its reliance on a particular program.

Although the court recognized that “no government surveillance program should be immunized from judicial scrutiny,” its analysis would do precisely that in the overwhelming majority of cases. If the court’s reasoning were correct, then the only people who could challenge NSA surveillance would be those told by the government they were spied on — a result at odds with well-established precedent and our system of checks and balances:

Upstream surveillance

Our clients’ standing doesn’t depend on a supposition. There’s no question that the NSA is capturing and searching through their communications. That’s something the court — and everyone else — should find extremely disconcerting. 

View comments (10)
Read the Terms of Use

Anonymous

Absolutely ridiculous ruling.

Archie1954

When Republicans appoint judges they make absolutely sure that these individuals have Fascist leanings. Any judge that would ignore the facts of any case to come to a perverse reading of the situation is a Fascist in disguise.

Anonymous

“It is difficult to get a man to understand something, when his salary depends on his not understanding it.”

It's so difficult to believe that "the court" cannot find mass interception of internet communications "plausible," especially in the wake of Snowden, that it begs conspiratorial explanation, or outright corruption.

Anonymous

Is this really a case about "Campaign Finance Reform" where campaign contributors, like telecommunications companies, have more free speech rights than citizens? In 2015, many judges have become "elected" politicians rather than guardians of the U.S. Constitution protecting our Bill of Rights.

Maybe public financing of election campaigns would make both legislators and judges "employees" of the American people instead of employees of the telecommunications companies.

Donald R. Greaves

To begin with, it is extremely difficult to identify friend from foe when each and everyone is either one or the other or both. Due to the Barbaric manner we yet continue to exist in. Their are very few pure innocents in the broader spectrum of our modern day worldly society since all are endowed and possessed of the ability and incentive to commit crimes of any and all aspects for any purpose that can be thought up. Depending upon ones needs, desires, and ambitions. The innocent ones are still classified as acceptable casualty losses. And altho it is considered bad form to bring Religion into matters of Politics, it is quite evident that more political parties would have to consider the Spiritual Nature of their decision making, so in the neglect of identifying the Jesus Factor: Sin is both accepted and endorsed as a means of Life. And regardless of whether one believes their is a God or not, the mere writing and significant value of basing ones life on The Ten Commandments, and The Seven Deadly Sins alone surpass even the written words that were created during the time of creation in establishing this country as an independent and free nation. Words also that have been neglected and abused, and reformed and turned into meaningless garble that very few are able to understand let alone base ones beliefs upon. Corruption is a new normal for Governments and Individuals alike, Wealthy or Poor life remains a struggle to exist; by any means necessary.

Anonymous

In Elkins v FAA, 1:14CV00476, US District Court, District of Columbia, Judge Boasberg ordered records released (un redacted ) of flight data, inflight radio communications, showing what agency, (FBI), what day, time, altitude, call sign, concerning what the DOJ through the FAA called a "On going National Security Investigation" with declarations under seal, and no way of knowing what they said, the FAA dropped exemption 7(A) at the last moment, because they couldn't substantiate a legitimate investigation obviously. These are the only records ever released in court, except the 2004 accidental release in Oregon (Islamic Charities) depicting when and how the Un- Warranted surveillance took place in the US, and through the Privacy Act, records of the intended target was obvious, the plaintiff. Still, the courts refuse to allow any standing to sue, effectively condoning breaking the law, only to allow law enforcement to hone their talents of misconduct and to circumvent the constitution.

Anonymous

The US hasn't been a republican democracy for a long time. The US murders people including their own citizens, journalists and medical staff with impunity. Welcome to all-out fascism. We have arrived.

Anonymous

Then why the makeloving you pay texas for that?

Onanymous

Then why the lovemake you pay moolah-boolah for that?

Anonymous

Governments around the developed world have forgotten that security services are still public services and draw their funding from the same pot as all others. As such it needs to be subject to all democratic transparency rules that other public services are. The nature of their business is not a good enough excuse to override this, particularly when the number of deaths from terrorism in the developed world are miniscule when compared to other threats.

Stay Informed