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Judge Dismisses Wikimedia’s Anti-Surveillance Case Against NSA

Matt Broersma is a long standing tech freelance, who has worked for Ziff-Davis, ZDnet and other leading publications

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Civil liberties organisations argue decision ignores evidence of indiscriminate NSA spying

A US federal judge has dismissed the Wikimedia Foundation’s anti-surveillance lawsuit against the NSA, arguing that the Foundation had failed to present evidence that wasn’t based on “speculation”.

The Foundation’s case drew on secret government documents disclosed by Edward Snowden to argue that NSA surveillance had caused harm to the organisation’s operations, causing users to think twice before contributing sensitive information.

‘Upstream’ surveillance

Eye spy surveillance security, biometric retina iris © agsandrew ShutterstockThe lawsuit alleged that an NSA surveillance programme known as Upstream, which tapped into high-capacity cables, switches and routers used to move data traffic across the US, violated the US constitution, including amendments that protect freedom of speech and association and freedom from unreasonable search and seizure.

The use of leaked documents as evidence distinguished the case from predecessors such as Clapper v. Amnesty International, which was similarly dismissed without trial in a 2013 Supreme Court decision.

In his 30-page ruling, US District Judge T.S. Ellis III found that while the leaked documents did help to “plausibly establish” the NSA’s use of Upstream surveillance at key Internet “chokepoints”, the plaintiffs didn’t establish that the NSA was using that programme “to copy all or substantially all communications passing through those chokepoints”.

With regard to the NSA’s actual surveillance activities, the “plaintiffs can only speculate”, which previous rulings such as Clapper v. Amnesty disallow as a basis for establishing the right to sue, technically known as “standing”, the court said.

Turning ‘blind eye’ to surveillance

In the 2013 Clapper v. Amnesty case, Justice Samuel Alito wrote in the majority opinion that “respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending”.

That court’s dissenting opinion argued, by contrast, that the surveillance described by the plaintiffs was not mere speculation, but was admissible as “commonsense inference” based on “ordinary knowledge of human nature”.

Similarly, the American Civil Liberties Union (ACLU), which represented the plaintiffs in the Wikimedia case, argued that the court’s decision ignored plain evidence that surveillance is taking place.

“The decision turns a blind eye to the fact that the government is tapping into the Internet’s backbone to spy on millions of Americans,” ACLU attorney Patrick Toomey said in a statement. “The dismissal of the lawsuit’s claims as ‘speculative’ is at odds with an overwhelming public record of warrantless surveillance.”

The European Union’s highest court recently scrapped the “Safe Harbour” agreement allowing data transfers to the US, largely over Snowden’s evidence that such data was being exposed to indiscriminate collection by the NSA.

The plaintiffs in Wikimedia v. NSA included the Wikimedia Foundation, Amnesty International USA and and Human Rights Watch. Wikimedia said it will probably appeal.

The case was filed in March in the federal court in Maryland, the location of the NSA’s headquarters.

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