Trying to Keep the Internet Safe From Warrantless NSA Surveillance

Originally posted at The Daily Beast.

Next month, President-elect Trump will be handed the keys to the NSA’s vast spying apparatus. As a candidate, he supported mass surveillance of Americans’ phone calls, called for expanded spying on American Muslims, and even invited Russia to hack the emails of his political opponent. With these threats to privacy and liberty on the horizon, our courts will likely be more important than ever as a bulwark against unlawful spying.

One of the courtroom battles that will shape President-elect Trump’s spying powers is already underway.

On Thursday, the Fourth Circuit Court of Appeals will hear oral argument in Wikimedia v. NSA, our case challenging “Upstream” surveillance. First revealed by whistleblower Edward Snowden in June 2013, Upstream surveillance involves the NSA’s bulk searching of Americans’ international internet communications with the assistance of companies like AT&T and Verizon. If you email friends abroad, chat with family members overseas, or browse websites hosted outside of the United States, the NSA has almost certainly searched through the contents of your communications — and it has done so without a warrant.

Upstream surveillance takes place in the internet “backbone” — the network of high-capacity cables, switches, and routers that carries Americans’ domestic and international internet communications. The NSA has installed surveillance equipment at dozens of points along the internet backbone, allowing the government to copy and then search the contents of vast quantities of internet traffic as it flows past.

Upstream Surveillance

The government claims that Upstream surveillance is authorized by Section 702 of the Foreign Intelligence Surveillance Act. That law allows the NSA to engage in warrantless surveillance of Americans when they are communicating with so-called “targets” abroad. But these targets can be virtually any foreigner overseas — including people who are not accused of any wrongdoing whatsoever, like journalists, lawyers, and human rights researchers. No judge signs off on the government’s individual targets. Instead, the NSA secretly vacuums up millions of communications under a single court order each year.

One of the most glaring problems with Upstream surveillance is that it is not targeted at all — at least not in any ordinary sense of the word. Instead, the government is systematically examining online communications in bulk, scanning their full contents to see which ones merely mention its targets.

Because of how it operates, Upstream surveillance represents a new surveillance paradigm, one in which computers constantly scan our communications for information of interest to the government. To use a non-digital analogy: It’s as if the NSA sent agents to the U.S. Postal Service’s major processing centers to conduct continuous searches of everyone’s international mail. The agents would open, copy, and read each letter, and would keep a copy of any letter that mentioned specific items of interest — despite the fact that the government had no reason to suspect the letter’s sender or recipient beforehand.

The ACLU brought this lawsuit on behalf of a coalition of legal, media, educational, and human rights organizations, including the Wikimedia Foundation (which runs Wikipedia), Amnesty International USA, The Nation magazine, PEN American Center, Human Rights Watch, the Rutherford Institute, the National Association of Criminal Defense Lawyers, Global Fund for Women, and the Washington Office on Latin America.

Each of these nine plaintiffs has been deeply affected by U.S. government spying. The confidentiality of plaintiffs’ international communications is essential to their work, and Upstream surveillance undermines their ability to ensure that these communications — with colleagues, journalists, witnesses, foreign government officials, victims of human rights abuses, and the tens of millions of people who read and edit Wikipedia — are indeed private. This spying violates our clients’ constitutional rights to privacy, freedom of expression, and freedom of association. 

Journalist Lawyer

Last year, a federal district court in Maryland dismissed our suit, wrongly concluding that our clients lack standing to challenge Upstream surveillance because they had not “plausibly” alleged that their communications are intercepted. Without standing, our plaintiffs can’t have their day in court to challenge this spying on the merits.

However, as we explained in our appeal briefs, it’s more than plausible that our clients’ communications are intercepted: the government’s own disclosures about Upstream surveillance, along with media reports, show that the NSA is vacuuming up and reviewing almost all text-based communications that enter and leave the country.

Wikimedia alone engages in over a trillion internet communications each year, with individuals located in virtually every country on earth. Given the volume and geographic distribution of these communications, it’s indisputable that plaintiffs’ communications are ensnared by the NSA.

We hope that the Fourth Circuit agrees. With President-elect Trump about to take over, there’s simply too much at stake for the judiciary to close the courthouse doors on those harmed by mass surveillance. 

Check Out the Full Comic Explaining What the NSA Is Doing and Why It Matters

 

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Anonymous

I support your legal actions regarding this. But the cases stand on their own merits. Dragging Trump into this -- for fundraising I suppose -- makes you little better than the media fishing for clicks.

Anonymous

Thank you ACLU. Anonymous be very clear about who, based on his present day actions are leading up to the shutdown of basic civil liberties. Take it from people who have experienced facism/autocracy. We have witnessed it eIsewhere. It is an escalating process, the steps of which we are witnessing RIGHT NOW here in our beloved USA and unless there is immediate action to stop it, it will be too late.

Anonymous

Donald Trump voluntarily ran a campaign to become POTUS. Part of the job includes quality, logical, fair, insightful, and mostly difficult decision making that will impact our country and citizens for years to come. 'Dragging' Trump is a perfectly inaccurate assessment of the situation. As POTUS, I expect Donald Trump to step up and handle himself with the upmost professionalism with the heart and will of the people at the forefront.

Anonymous

Why did you the aclu not stop this when obama was in office? Why wait for Trump to get in office? The aclu is a bunch of money hungry lawyers,that does not have the best interest of the people of this COUNTRY.Maybe we should ship the aclu lawyers to the middle east for awhile.Sue facebook and google,I know that not going to happen.

Anonymous

The lawsuit was filed in March 2015. Check your facts before you throw mud.

Frank Moore

Who are you? Why don't you identify yourself if you're going to make idiotic comments like these. ACLU is not made up of money hungry lawyers - the ACLU relies on donations and court awarded attorneys' fees for bringing cases that uphold civil liberties. Open a book or at least do some basic homework before popping off. I suspect you're a wormy troll who is too afraid to give true identity. Wimp.

James Paris

Thank you, Frank Moore, for calling out the snivelling, gutless coward who hides behind the moniker of "Anonymous." Obviously, he is a drumpf troll. I proudly support the ACLU and hold a membership with them. They keep me updated about various efforts in which they are involved as they defend the civil liberties of all Americans, including people with names like "Anonymous."

Anonymous

That's funny, because it was YOUR president, Obama, that enacted and expanded these powers to this level ... they like you nice and dumb though

Banana Split

If you gave examples of how there have been identity breaches leading to retaliation.....I mean are witnesses and informants, whether it be domestic or foreign/political, having their covers blown as a result of this upstream surveillance? Are activists finding that their plans are being intercepted after internet communications?
Are there signals that the NISA is using information to form a Nazi like regime? Are there actual events that could support this?
If they were not doing surveillance like this, would everyone feel better and safer? Can you imagine the possibilities when there are so many angry people out there watching how others use fear to their advantage, which instead of repulsing them, excites them. This has become a world with too many feeling the need to make a statement with the use of terror. Someone needs to guard against them. It would be too irresponsible and dangerous to not have any surveillance in place. The amounts of information they have to sift through is likely not going have them interested in spending time on the average emails, since it could lead to tune out syndrome where something needing serious attention could slip by. I don't imagine they use decaf.
It is good that the ACLU keeps a watch though - all about balance. If abuses show up, people have someone to turn to. Organizations like yours will keep freedom alive.

Anonymous

Typical illiberal ACLU filth, blame Trump for Obamas actions. Just like blaming Trunp supporters for violence perpetuated by Soros gangs.

Ms Gorski why don't you move to Syria and be an ISIS bride. They like blondes and you will get to settle whatever Putin issues you have. Also thank the rich Arab sheikhs who pay your fat salary at Arab Civil Liberties Union to destroy USA from within.

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