Saturday, October 24, 2015

Court Dismisses Wikimedia's Lawsuit Over NSA Surveillance

Back in March, we noted that Wikimedia was suing the NSA over its mass surveillance program under Section 702 of the FISA Amendments Act. This is the part of the law that the NSA uses to justify its "upstream" collection -- which lets the NSA partner with backbone providers like AT&T and tap their fiber lines at entry/exit points from the country and sniff through all the traffic. The problem in many lawsuits concerning NSA surveillance is that it's been difficult for the plaintiff to satisfy the requirements necessary to get "standing." That is, can the plaintiff prove that he/she/it had rights violated by the program. Many earlier attempts failed, because they just presented stories of "well, the NSA is collecting everything, so..." and the courts have said that's not enough, since it needs to be shown that the plaintiff, in particular, was a target.

Wikimedia (and the ACLU, who is helping with the case), believed they had a smoking gun that could grant them standing. The following slide, which was revealed by Ed Snowden:

See that Wikipedia logo? Wikimedia Foundation and the ACLU argued that this presented evidence that the NSA was targeting Wikipedia users, and thus the Wikimedia Foundation had standing.

Unfortunately, so far, it's not working. Earlier today, the court tossed out the lawsuit, saying that Wikimedia did not present enough evidence to prove it has standing. The court, not surprisingly, relies heavily on the Supreme Court's ruling in Clapper v. Amnesty International, in which SCOTUS rejected Amnesty's similar claim by saying the organization failed to prove it had standing, since it couldn't prove its team was caught up in dragnet surveillance. Of course, famously, to get to that ruling, the US government flat out lied to the Supreme Court (something it has since admitted), claiming (incorrectly) that if information collected via such surveillance was used in criminal cases, the defendants would be told about it.

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