A constitutional challenge to the NSA’s mass surveillance program, brought by Wikimedia earlier this year, was dismissed by a U.S. district court judge on Friday.
Wikimedia announced it was suing the NSA back in March, along with eight other organizations, including The National Association of Criminal Defense Lawyers, Human Rights Watch and Amnesty International USA.
The action had sought to argue that dragnet surveillance was a threat to Wikimedia’s mission and a violation of fundamental U.S. constitutional rights.
However, the judge was not persuaded by the plaintiffs’ arguments, referencing a 2013 anti-surveillance case brought by Amnesty International which also failed to prevail on the grounds that the plaintiffs could not provide evidence, beyond the speculative, that their communications were being monitored by government intelligence agencies.
Writing in his ruling on the Wikimedia case, the judge similarly asserts: “Plaintiffs cannot provide a sufficient factual basis for their allegations because the scope and scale of Upstream surveillance remains classified, leaving plaintiffs to prop their allegations of actual injury on suppositions and speculation about how Upstream surveillance must operate in order to achieve the government’s “stated goals”.”
He goes on to note that while more is known now about “the nature and capabilities of NSA surveillance” than was known in 2013, at the time of Amnesty’s legal action, “no more is known about whether Upstream surveillance actually interprets all or substantially all international text-based Internet communications” — concluding, therefore, that Wikimedia’s case relies on “a chain of speculation” and thus fails to establish legal standing.
The judge also asserts that Wikimedia failed to persuade him on the significance of whether the volume of its annual Internet communications — a figure it claimed as more than 1 trillion annual Internet communications — represents a significant proportion of the total number of Internet communications or not. “Plaintiffs provide no context for assessing the significance of this figure,” he writes.
Likewise the judge dismissed arguments claiming harm to Wikimedia’s mission attributable to mass surveillance — again referencing the earlier Amnesty case and writing: “Plaintiffs cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending”, nor can they establish injury “based on third parties’ subjective fear of surveillance.”
The judge does note in his conclusion that legal standing to challenge a classified program in a civil case “is not easily established,” but adds: “Such difficulty comes with the territory.”