(Washington, DC) – A federal appeals court heard oral argument on December 8, 2016, in Richmond, Virginia, in the case brought by the American Civil Liberties Union on behalf of a broad group of organizations challenging the National Security Agency’s mass interception and searching of Americans’ international internet communications.
The plaintiffs are the Wikimedia Foundation, the Rutherford Institute, The Nation magazine, Amnesty International USA, PEN America, Human Rights Watch, the National Association of Criminal Defense Lawyers, Global Fund for Women, and Washington Office on Latin America.
A federal district court dismissed the lawsuit in October 2015, holding that the plaintiffs in the case had not plausibly alleged that their communications were being monitored by the NSA.
At issue is the NSA’s “upstream” surveillance, which involves the NSA’s tapping into the internet backbone inside the United States – the physical infrastructure that carries Americans’ domestic and international online communications. The NSA conducts this spying under Section 702 of the Foreign Intelligence Surveillance Act, which allows the agency to engage in warrantless surveillance of Americans who communicate with targets located abroad. Section 702 is scheduled to expire at the end of 2017.
“Innocent people shouldn’t have to look over their shoulders when using the internet,” said ACLU attorney Patrick Toomey, who argued in court before a three-judge panel of the US Court of Appeals for the Fourth Circuit. “The NSA is systematically searching online communications in real-time, invading Americans’ privacy on a massive scale. This illegal spying undermines constitutionally protected privacy and free speech rights.”
The government has argued that the plaintiffs do not have standing to challenge the surveillance because they have not adequately alleged that their communications are being intercepted. However, public disclosures and reports show that the government is copying and reviewing virtually all text-based communications entering and leaving the country, of which the plaintiffs have many.
“Make no mistake: ‘upstream’ scanning is warrantless mass surveillance, and it violates the rights of Americans and people around the world,” said Sarah St Vincent, surveillance researcher at Human Rights Watch. “The courts and Congress urgently need to rein in the deeply flawed law that underpins it, Section 702 of the Foreign Intelligence Surveillance Act. The law is set to expire at the end of 2017, and we will be fighting to bring any renewed version into line with human rights.”
In the course of its surveillance, the NSA copies and combs through vast amounts of internet traffic, which it intercepts inside the United States with the help of major telecommunications companies like Verizon and AT&T. The NSA searches that traffic for keywords called “selectors” that are associated with tens of thousands of targets.
The district court’s ruling cited the Supreme Court’s decision in a previous ACLU lawsuit challenging the NSA’s warrantless wiretapping program, Clapper v. Amnesty. The Supreme Court dismissed that case in February 2013 in a 5–4 vote on the grounds that the plaintiffs could not prove that they had been spied on.
Following Clapper, however, documents released by Edward Snowden and official government disclosures revealed the existence and breadth of upstream surveillance. Unlike the surveillance considered by the Supreme Court in Clapper, upstream surveillance is not limited to the communications of NSA targets. Instead, the NSA is searching the content of nearly all text-based internet traffic entering or leaving the country – as well as many domestic communications – looking for thousands of key terms such as email addresses or phone numbers.