Challenge to NSA Upstream Spying Program Returns to Fourth Circuit

The Wikimedia Foundation argued for the yearslong dispute over surveillance of international communications to be decided on its merits, but the appeals court hearing centered on whether the nonprofit has standing to bring its case.

This 2013 photo shows the sign outside the National Security Agency campus in Fort Meade, Md. (AP Photo/Patrick Semansky, File)

RICHMOND, Va. (CN) — The Fourth Circuit had tough questions for both the government and the Wikimedia Foundation on Friday as the organization asked the court to look past standing issues in its challenge to the National Security Agency’s use of a controversial online surveillance program. 

Known as upstream surveillance, the government argues the monitoring of web traffic is allowed under section 702 of the Foreign Intelligence Surveillance Act. The process involves the NSA tapping into the physical backbone of the internet in the U.S. – the vast network of cables, switches and routers that digitally facilitate communication – to monitor Americans’ international communications, including emails and search terms, with an eye on catching terrorists and spies.

Former NSA contractor Edward Snowden leaked documents exposing numerous surveillance programs, including upstream, in 2013.

The Wikimedia Foundation, the nonprofit behind Wikipedia and 11 other free-knowledge projects, challenged the practice in a 2015 lawsuit against the NSA, the Office of the Director of National Intelligence, the Department of Justice and the heads of those agencies.

Upstream surveillance allows the NSA to sift through American’ communications “for tens of thousands of search terms without any basis for suspicion,” according to the complaint.

Represented by the American Civil Liberties Union, Wikimedia argues this practice violates the First and Fourth Amendments and far exceeds the scope of surveillance intended by Congress.

Senior U.S. District Judge T. S. Ellis III, a Ronald Reagan appointee, dismissed the case in 2015, agreeing with the government’s contention that Wikimedia lacked standing because its allegations about the data collection were speculative in nature.

However, the Fourth Circuit vacated the dismissal because of the specificity of the group’s claims regarding how the NSA is intercepting information on the internet.

The three-judge panel of the Richmond, Virginia-based appeals court remanded the case back to Ellis in Alexandria, but the district court judge again found Wikimedia lacked standing to file suit because it did not show the NSA has copied or collected its international online communications.  

“The NSA does not need to be copying any of Wikimedia’s communications as a technological necessity,” he wrote in a December 2019 opinion. “Thus, the summary judgment record does not contain the facts necessary for Wikimedia to establish standing.”

While ACLU lawyer Patrick Toomey asked the court to allow Wikimedia’s case to continue on the merits in Friday’s hearing before the Fourth Circuit, questions of standing continued to dominate the dispute.  

“Isn’t it essentially the [federal code that] only gives the government a shield, not you a sword?” asked U.S. Circuit Judge Diana Motz, a Bill Clinton appointee, who expressed several concerns about sections of legislation which appear to limit the ability of private citizens to file suit over the surveillance program’s use. 

“It only applies in criminal suppression proceedings or similar proceedings, but other courts have held these procedures are available in civil cases like this one,” Toomey said. “The text itself controls and the text of the third prong, which governs whenever an aggrieved person files a motion to discover or obtain FISA-related information, is broad and clear. Because it’s not ambiguous it controls here.” 

U.S. Circuit Judge Allison Rushing, a Donald Trump appointee, was unsure if Wikimedia had suffered an injury sufficient enough to file the suit in the first place and pointed to Congress’s guidance that such an action must come from someone who has been the target of surveillance. 

“Why doesn’t that limit the provisions even if it doesn’t create this solely government shield?” she asked. 

“It does not say what a party must show in order to be aggrieved and in an ordinary court a party is entitled to discovery after it overcomes a motion to dismiss and has put forward plausible allegations,” Toomey responded.

As for the plausible allegations, Wikimedia argues its existence as an international source of free information has undoubtedly pushed traffic between their servers and overseas users into the NSA’s scope. 

“Congress sought to balance civil liberties against national security and create a better procedure that allows a plaintiff with substantial claims of illegal surveillance to obtain a ruling on the merit and, where appropriate, to obtain a remedy,” Toomey argued. 

But Justice Department attorney Joseph Busa stressed the limit the Foreign Intelligence Surveillance Act provision Wikimedia hoped to use rested solely in criminal proceedings when the information obtained through upstream surveillance was used at trial. 

“It’s linked to criminal liability,” he told the court. “It says the scope of civil liability should coincide with criminal liability. It’s not an omnibus statute anyone can use.”

“I’m not sure how anyone can use it under your definition,” Motz jabbed. 

“When we give notice when criminally prosecuting someone, we tell them they were the subject of surveillance,” Busa replied. “If there’s a determination that the surveillance was unlawful, that person has the opportunity to turn around and become a civil plaintiff.” 

“But we know sometimes you don’t give notice,” Motz pressed again, noting even the Justice Department has admitted to not following the FISA laws as recently as 2019 when former Attorney General William Barr commented on the agency’s flawed surveillance of the Trump campaign. 

“The code is about whether we can use information against a litigant,” Busa said of the controversial prong Wikimedia hoped to exploit. “That’s invoked by the person in control with the information.”

Still, Toomey argued when Congress wrote the law the third prong was designed to empower private citizens to challenge the data collection when they were subject of its broad reach. 

“Congress was explicit when the House committee met and the House and Senate versions were reconciled,” he said. “This third provision was added to cover a civil FISA challenge.” 

U.S. Circuit Judge Albert Diaz, a Barack Obama appointee, rounded out Friday’s panel. The judges did not signal when a ruling would be issued.

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