Tuesday, October 3, 2023 | Back issues
Courthouse News Service Courthouse News Service

Nix ‘Upstream’ Spying, Wiki & Others Tell Court

BALTIMORE (CN) - High-powered media, law and human rights groups banded together Tuesday in a federal complaint against "Upstream" surveillance carried out by National Security Agency.

Upstream is one known form of surveillance that the U.S. government conducts, as purportedly authorized by amendments in 2008 to the Foreign Intelligence Surveillance Act, according to the complaint in Maryland.

Whereas the program codenamed PRISM allows the government to obtain stored and real-time communications from U.S. companies such as Google and Facebook that provide communications services to targeted accounts, "Upstream surveillance involves the NSA's seizing and searching the Internet communications of U.S. citizens and residents en masse as those communications travel across the Internet 'backbone' in the United States," the complaint states.

Internet backbone is defined in the complaint as the network of high-capacity cables, switches, and routers that digitally facilitates both domestic and international communication.

Former NSA contractor Edward Snowden leaked documents exposing the surveillance programs in June 2013.

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

Joining as plaintiffs are the 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.

Upstream allows the NSA to sift through American' communications "for tens of thousands of search terms without any basis for suspicion," according to the complaint.

The plaintiffs say this practice violates the First and Fourth Amendments and far exceeds the scope intended by Congress.

Verizon, AT&T and America's other telecommunications providers allegedly control the NSA's access points.

While the NSA purportedly has foreign intelligence in mind, Upstream has far-reaching implications for all U.S. citizens, particularly journalists, academic researchers, human rights workers and others involved in international work but under no suspicion of terrorist involvement, according to the complaint.

Wikimedia says the loose regulations of the FISA Amendments Act, or FAA, allow the government to spy on many U.S. citizens with legitimate international interests, but that some domestic communications are simply bundled with those international communication while transiting the Internet.

Further, the NSA also searches communications that are simply "about" their target search terms, the plaintiffs allege, making no effort to avoid communications that only reference the agency's targets, or to purge the communications it unnecessarily seizes.

For each of the plaintiffs, sensitive and privileged communications, both domestic and international are integral to their work, and the ability to communicate and exchange information free from warrantless government surveillance is essential, according to the complaint.

The plaintiffs say that knowledge of the surveillance has led them to employ burdensome and costly measures to additionally protect their communications and minimize the possibility of the government's seizure and retention of their data.

A federal judge must declare Upstream surveillance unlawful, enjoin the government from continuing its practice, and purge its databases of all communications by the plaintiffs obtained through Upstream, according to the complaint.

The plaintiffs are represented by the American Civil Liberties Union Foundation of Maryland.

On Wednesday, a day after the lawsuit was filed, the ODNI released a redacted copy of a ruling from a federal judge in Washington, reauthorizing its "authority to collect telephony metadata in bulk" until June 1, 2015.

The Electronic Frontier Foundation brought claims over Upstream last year in Oakland, Calif.

Categories / Uncategorized

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.