A split federal peals court dismissed the ACLU lawsuit as part of the National Security Agency’s warrantless surveillance of Americans’ international email and phone communications.
Falls Church, Va.
The 4th U.S. Circuit Court of Peoples ruled Wednesday that the government must dismiss the lawsuit after it has exercised “state secrecy privilege,” meaning that a full exploration of the issue in court would jeopardize national security.
The Wikimedia Foundation, which runs Wikipedia in the lawsuit, says the National Security Agency’s “upstream” surveillance program requires some of its international communications, and its Fourth Amendment rights against free-speech rights violations and unreasonable search and seizure.
The details of the upstream program are classified, but it collects data from transmission through high-speed cables that transport electronic communications in and out of the country.
In the majority opinion, Judge Albert Diaz accepted the government’s assertions that Obama Point could not sue the constitutionality of the program without harming national security.
Diaz wrote, “There is no justifiable defense to this claim, which does not disclose information that the government is trying to protect: how upstream surveillance works and where it is conducted.”
In a disagreement, Judge Diana Gribbon Motz wrote that the Supreme Court is set to hear the arguments of the case, which could spell out the state’s secret privilege, and that it was wrong to allow the government to invoke it before that verdict.
The majority opinion is “a widespread proposition: at least after a judicial review, a lawsuit can be dismissed under the doctrine of state secrets,” he said.
Patrick Toomey, the lawyer for ACLU’s national security project, who represented Wikimedia, said he was “extremely disappointed” with the ruling and lawyers were considering their peel options.
“Every day, the NSA interacts with Americans on the backbone of the Internet and its spying machines, violates privacy and freezes free speech,” he said in a statement, “and the court has determined whether it can guarantee this. The Digital Dragnet follows the constitution.
The lawsuit was filed after NSA contractor Edward Snowden revealed the agency’s scope of surveillance. The lawsuit was first thrown out in 2015 over whether plaintiffs were standing to sue. But the 4th Circuit revived the case and sent it back to the lower court, which dismissed it in 2019 over a state secrets argument.
The upstream program is part of the NSA surveillance. The “downstream” section adds Internet service providers such as Google to store selected targeted communications. The court’s ruling suggests that the bottom line of procurement by the NSA provides “a great deal.”
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