‘Upstream’ Surveillance Fight Hits 4th Circuit

(CN) — Dusting off federal court defeat, Wikimedia is joining nearly a dozen human-rights groups at Fourth Circuit on Thursday to oppose what they call a “government surveillance program that is unprecedented in scope.”

Wikimedia, the nonprofit group behind Wikipedia and 11 other projects, started their battle last year in Baltimore against the National Security Agency’s so-called Upstream program.

As revealed in documents leaked by former NSA contractor Edward Snowden, the Upstream program seizes and searches communications traveling across the internet’s “backbone” across the United States. This includes the network of high-capacity cables, switches and routers that digitally facilitates both domestic and international communication.

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

Together, they estimate engaging in “more than a trillion sensitive international communications over the internet each year,” which they aim to protect.

“The challenged surveillance, known as Upstream surveillance, involves the suspicionless seizure and searching of Americans’ internet communications as they enter and leave the United States,” they wrote in a Feb. 17 brief.

Wikimedia is pushing for an appellate reversal after U.S. District Judge T.S. Ellis, a Ronald Reagan nominee, dismissed its case in October 2015.

As laid out in the brief, Patrick Toomey with the American Civil Liberties Union Foundation says Ellis glossed over extensive evidence, including “numerous government disclosures, extensive technological explanation, and credible news reports.”

President Barack Obama’s administration continues to fight to maintain the program, which the Department of Justice called “critically important to maintaining our national security.”

Department of Justice lawyer Catherine Dorsey filed the government’s brief in April, assuring the Fourth Circuit that the program has safeguards in place to protect privacy.

“Once communications are acquired, they are subject to FISC-approved minimization procedures,” Dorsey wrote, referring to the Foreign Intelligence Surveillance Court’s guidelines for handling private information. “For example, such procedures prohibit the NSA from using U.S. person identifiers, such as e-mail addresses or telephone numbers, to query Internet communications collected under Upstream.”

Civil liberties groups are quick to note, however, that such safeguards do not prevent the agency from collecting information about U.S. citizens who have been in contact with people outside the country.

Wikimedia takes slim comfort from Dorsey’s pledge that “the agency must also immediately purge any communication determined to be of, or concerning, a U.S. person if it does not contain foreign-intelligence information.”

In a May 6 reply brief, Wikimedia said that the government’s assertion “simply mischaracterizes how Upstream surveillance operates, calling it narrow and ‘targeted’ when in fact it is broad and indiscriminate.”

“In so doing, the government repeats one of the district court’s basic misunderstandings of Upstream surveillance: that this surveillance is limited to the communications of legitimate foreign-intelligence targets,” the reply brief states.

The Fourth Circuit has not yet published an audio recording of today’s hearing in Richmond, Va.