Fourth Circuit Revives NSA Spying Lawsuit

(CN) – The Fourth Circuit on Tuesday revived Wikimedia’s challenge to the National Security Agency’s collection of “upstream” data under section 702 of the Foreign Intelligence Surveillance Act.

A federal judge in Maryland dismissed the lawsuit in 2015, agreeing with the government’s contention that Wikimedia lacked standing because its allegations about that data collection were speculative in nature.

The Fourth Circuit panel overturned that ruling in the case of Wikimedia, but ruled that the challenges of other plaintiffs, including The Nation magazine could not go forward.

Wikimedia prevailed, the three-judge panel said, because of the specificity of its claims regarding how the National Security Agency is intercepting information on the Internet.

According to the complaint, Upstream surveillance involves the NSA seizing and searching the Internet communications of US citizens and residents en masse as those communications travel across the Internet backbone without demonstrating probable cause.

“Wikimedia has plausibly alleged that its communications travel all of the roads that a communication can take, and that the NSA seizes all of the communications along at least one of those roads,”  U.S. Circuit Judge Albert Diaz wrote. “Thus, at least at this stage of the litigation, Wikimedia has standing to sue for a violation of the Fourth Amendment. And, because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the First Amendment.”

In a blog post, Ashley Gorski, an ACLU staff attorney, said the decision is a “landmark victory for Wikimedia.”

“As the court explained, Wikimedia, the lead plaintiff in the lawsuit, persuasively argued that its communications are searched by the NSA. As a result, we’re one step closer to ensuring that secret, warrantless spying will be subject to scrutiny in the public courts.,” Gorski said.

The Justice Department and NSA declined to comment on the ruling.

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