In March 2015, the American Civil Liberties Union filed a lawsuit challenging the constitutionality of a type of National Security Agency bulk monitoring known as "upstream" surveillance. More than three years after the ACLU originally filed the suit, the case is still mired in procedural and bureaucratic limbo. But on Friday, a hearing over one such roadblock in Maryland district court could bring long-awaited progress.
The Wikimedia Foundation, which the ACLU is representing along with cocounsel from the Knight First Amendment Institute and Cooley LLP, engages in more than a trillion communications per year with people around the world, and has hundreds of millions of visitors each month to Wikipedia. The organization is suing to stop upstream surveillance, the process by which the NSA passively monitors and collects a huge amount of data and text-based communications by combing international internet traffic as it moves across service providers' backbone infrastructure.
The suit alleges that this tactic violates the First and Fourth Amendment, along with other laws. But it took two years for Wikimedia to simply prove its standing to bring the suit. Now, the government is using a concept known as the “state secrets privilege,” which protects classified information from the discovery process in a lawsuit, to resist cooperating with Wikimedia's requests. As a result of these evasive tactics, the core constitutional issues of upstream surveillance remain unexamined.
"No public court has ever addressed the lawfulness of this surveillance," says Ashley Gorski, a staff attorney for the ACLU's National Security Project. "It's very clear that Wikimedia's communications are in fact subject to this surveillance and what it has done is seek additional information from the government that would provide more direct evidence of that. So that's what's at issue in this hearing. The government is saying that it wants to