Wikimedia, ACLU, Knight Institute Ask Supreme Court To Hear Challenge Of NSA Bulk Surveillance

Legal Issues

from the remember-the-NSA? dept

More than nine years of news cycles ago, the initial Snowden leak dropped. The next few years were filled with lawsuits, extensive news coverage, reform efforts (some better than others), the unplanned retirement of one bulk collection program, and an uptick in public outcry against large-scale government surveillance programs.

Nearly a decade later, the NSA’s ability to make headlines has vanished, replaced by surveillance tech sold by private companies and deployed by a number of known human rights abusers. The public still has some outcry left in it, but most of it is local, directed at surveillance tech deployed by law enforcement.

But the legal battle against NSA bulk surveillance of internet activity continues. The Wikimedia Foundation (along with the ACLU and Knight Institute) sued the NSA in May 2015, using evidence gleaned from multiple Snowden leaks. The lawsuit dealt with the NSA’s “upstream” collections: internet data and communications pulled from backbone fiber optic cables.

That case was rejected by the district court seven months later. The court said Wikimedia (and its other lawsuit partners) did not have standing to bring the case since they could not demonstrate they were targets of potentially-unlawful surveillance. A leaked NSA presentation appeared to show that Wikimedia was one of the NSA’s data acquisition targets, but, thanks to the secrecy surrounding all things related to national security, the Foundation could not definitively show it had been affected by upstream surveillance.

Six years (and two reviews) later, the Fourth Circuit Appeals Court rejected the lawsuit again. The first pass (in 2017) had revived the lawsuit, disagreeing with the lower court on the standing issue. This pass said Wikimedia et al likely could show standing but none of that mattered because the state secrets arguments presented by the government prevented the court from reviewing the suit.

What the remaining plaintiffs are asking the Supreme Court to review is the boundaries of the government’s “state secret privilege.” The plaintiffs argue in their brief [PDF] that this privilege shouldn’t allow the government to prevent court oversight of surveillance programs affecting millions of Americans. And it shouldn’t allow the government to ignore that plenty of its “state secrets” are no longer secret, thanks to leaks from Snowden and other whistleblowers.

It argues the government should have to prove its case, one way or the other, without relying on the invocation of this privilege to avoid any judicial examination of its claims and defenses. As the brief notes, the government can still present evidence in camera (privately and solely to the presiding judges), thus preventing sensitive information from being made public. And, no matter what the judges decide, the court can either move the case forward or dismiss it without making this information public. Redaction is still a thing, as the government seems to conveniently forget.

Everything it normally uses to tilt the scale in its favor during lawsuits and prosecutions (evidence presentations that do not include the other parties, extensive redactions) was somehow ignored in NSA-targeting lawsuits, presumably because the “state secret” privilege is so much more effective. The plaintiffs are simply asking the government to show its work. Whether or not it has to show it to the plaintiffs or the general public is beside the point. But courts shouldn’t simply abandon all efforts to examine claims just because the government says it doesn’t want to talk about it.

Filed Under: bulk surveillance, mass surveillance, nsa, state secret privilege, state secrets, supreme court, upstream
Companies: wikimedia