ACLU, Wikimedia Foundation Challenge NSA “Upstream” Surveillance

A diverse coalition that inclkues Wikimedia Foundation, the conservative Rutherford Institute, the liberal 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 have filed a lawsuit challenging:

the suspicionless seizure and searching of internet traffic by the National Security Agency (“NSA”) on U.S. soil. The NSA conducts this surveillance, called “Upstream” surveillance, by tapping directly into the internet backbone inside the United States—the network of high-capacity cables, switches, and routers that today carry vast numbers of Americans’ communications with each other and with the rest of the world. In the course of this surveillance, the NSA is seizing Americans’ communications en masse while they are in transit, and it is searching the contents of substantially all international text-based communications—and many domestic communications as well—for tens of thousands of search terms. The surveillance exceeds the scope of the authority that Congress provided in the FISA Amendments Act of 2008 (“FAA”) and violates the First and Fourth Amendments. Because it is predicated on programmatic surveillance orders issued by the Foreign Intelligence Surveillance Court (“FISC”) in the absence of any case or controversy, the surveillance also violates Article III of the Constitution

“This kind of dragnet surveillance constitutes a massive invasion of privacy, and it undermines the freedoms of expression and inquiry as well,” said ACLU Staff Attorney Patrick Toomey. “Ordinary Americans shouldn’t have to worry that the government is looking over their shoulders when they use the Internet.”

The lawsuit, filed in federal court in Maryland where the NSA is headquartered, argues that the NSA is violating the plaintiffs’ privacy rights under the Fourth Amendment and infringing on their First Amendment rights. The complaint also argues that upstream surveillance exceeds the authority granted by Congress under the FISA Amendments Act.

“By tapping the backbone of the Internet, the NSA is straining the backbone of democracy,” said Lila Tretikov, executive director of the Wikimedia Foundation, which operates Wikipedia, one of the most visited websites in the world. “Wikipedia is founded on the freedoms of expression, inquiry, and information. By violating our users’ privacy, the NSA is threatening the intellectual freedom that is a central to people’s ability to create and understand knowledge.”

The lawsuit is in some ways a successor to 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. Edward Snowden has said that the ruling contributed to his decision to expose certain aspects of the NSA’s surveillance activities a few months later.

Among the Snowden disclosures were documents relating to upstream surveillance, which has since been confirmed by the government. Unlike the surveillance considered by the Supreme Court in Clapper, upstream surveillance is not limited to the communications of NSA targets. Instead, as we have since learned, 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 keywords such as email addresses or phone numbers.

One of the NSA documents revealed by Snowden included a slide that named Wikipedia, among other major websites, as a good surveillance target for monitoring what people do on the Internet.

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