Court Dismisses ACLU Challenge to NSA Internet Surveillance

Case Was Brought on Behalf of Wikimedia, Human Rights Groups, Others

October 23, 2015 4:15 pm

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ALEXANDRIA, Va. — A federal district court granted the government’s motion to dismiss a lawsuit brought by the American Civil Liberties Union on behalf of a broad group of organizations challenging the National Security Agency’s mass interception and searching of Americans’ international Internet communications.

The court held that the plaintiffs in the case had not plausibly alleged that their communications were being monitored by the NSA.

The plaintiffs are the Wikimedia Foundation, the Rutherford Institute, The Nation magazine, Amnesty International USA, PEN American Center, Human Rights Watch, the National Association of Criminal Defense Lawyers, Global Fund for Women, and Washington Office on Latin America.

“The court has wrongly insulated the NSA’s spying from meaningful judicial scrutiny,” said ACLU National Security Project Staff Attorney Patrick Toomey, who argued the case. “The decision turns a blind eye to the fact that the government is tapping into the Internet’s backbone to spy on millions of Americans. The dismissal of the lawsuit’s claims as ‘speculative’ is at odds with an overwhelming public record of warrantless surveillance.”

At issue is the NSA’s “upstream” surveillance, which involves the NSA’s tapping into the Internet backbone inside the United States — the physical infrastructure that carries Americans’ online communications with each other and with the rest of the world. The NSA conducts this spying under the FISA Amendments Act of 2008, which allows the agency to engage in warrantless surveillance of Americans who communicate with targets located abroad.

In the course of its surveillance, the NSA copies and combs through vast amounts of Internet traffic, which it intercepts inside the United States with the help of major telecommunications companies. It searches that traffic for key terms, called “selectors,” that are associated with its many targets.

Today’s ruling cites the Supreme Court’s decision in a previous ACLU lawsuit challenging the NSA’s warrantless wiretapping program, Clapper v. Amnesty. The Supreme Court dismissed that case in February 2013 in a 5–4 vote on the grounds that the plaintiffs could not prove that they had been spied on.

Following Clapper, documents released by Edward Snowden and official government disclosures revealed the breadth of upstream surveillance. Unlike the surveillance considered by the Supreme Court in Clapper, upstream surveillance is not limited to the communications of NSA targets. Instead, the NSA is searching the content of nearly all text-based Internet traffic entering or leaving the country — as well as many domestic communications — looking for thousands of key terms such as email addresses or phone numbers.

“The NSA’s mass surveillance violates our clients’ constitutional rights to privacy, freedom of speech, and freedom of association, and it poses a grave threat to a free Internet and a free society,” said Ashley Gorski, a staff attorney with the ACLU National Security Project. “The private communications of innocent people don’t belong in government hands.”

Today’s ruling is at:

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