ACLU Argues for Right to Sue NSA for “Upstream” Surveillance

After getting rebuffed in 2013, privacy lawyers are trying again to convince a federal court to hear its argument that the government’s tapping of the Internet backbone is unconstitutional.

v­ern­ment law­yers and pri­vacy ad­voc­ates lined up Fri­day morn­ing in front of a fed­er­al judge to ar­gue a case brought against a Na­tion­al Se­cur­ity Agency mass-sur­veil­lance pro­gram.

A group of nine plaintiffs rep­res­en­ted by the Amer­ic­an Civil Liber­ties Uni­on is fight­ing to get over the first hurdle in the law­suit: con­vin­cing Judge T.S. El­lis of the East­ern Dis­trict Court of Vir­gin­ia that they have stand­ing to sue the gov­ern­ment, a hurdle the ACLU was un­able to clear two years ago in a sim­il­ar case.

The or­gan­iz­a­tions—which in­clude the Wiki­me­dia Found­a­tion, Hu­man Rights Watch, the pro­gress­ive magazine The Na­tion, and the con­ser­vat­ive Ruther­ford In­sti­tute—want to sue the NSA for vi­ol­at­ing their Fourth Amend­ment pri­vacy rights through its “up­stream” sur­veil­lance pro­gram, which scoops up vast amounts of data from crit­ic­al points on the In­ter­net’s phys­ic­al in­fra­struc­ture, al­low­ing the agency’s ana­lysts ac­cess to an enorm­ous data­base of com­mu­nic­a­tions in­tel­li­gence.

“Amer­ic­ans shouldn’t have to worry that the NSA is look­ing over their shoulder,” said the ACLU’s Patrick Toomey, the lead plaintiff in the case, out­side the courtroom. The con­stant danger of be­ing fol­lowed on­line has a “chilling ef­fect” on what people read and write on the In­ter­net, Toomey said. “This is the sur­veil­lance of the fu­ture.”

But Toomey will not have a chance to ar­gue the facts of the case un­less he and his team can con­vince the judge that there is evid­ence their cli­ents are ac­tu­ally be­ing harmed by NSA sur­veil­lance.

That’s the ar­gu­ment the ACLU tried to make in a 2013 case against NSA spy­ing—and failed. In that case, the Su­preme Court ruled that the ACLU and its cli­ents did not have stand­ing to sue be­cause they could not demon­strate that the cli­ents were af­fected by the gov­ern­ment’s drag­net. That de­cision came down just months be­fore Ed­ward Snowden began leak­ing in­form­a­tion about the NSA’s pro­grams, and the sheer scale of the sur­veil­lance began to come in­to fo­cus.

The ACLU team hopes that the steady drip of new in­form­a­tion about NSA spy­ing since then will push El­lis to green-light their suit this time.

But Justice De­part­ment law­yers say this is a re­run of the same story, and they want the judge to dis­miss the case. Be­cause the scope and op­er­a­tion­al de­tails of the NSA’s up­stream-sur­veil­lance pro­gram re­main clas­si­fied, the gov­ern­ment ar­gued, there is no way for plaintiffs to show proof that their com­mu­nic­a­tions were caught up in the NSA’s drag­net. Gov­ern­ment law­yers con­demned as spec­u­la­tion any ar­gu­ment that the NSA “must be” in­gest­ing the plaintiffs’ data be­cause of the enorm­ous size of the sur­veil­lance op­er­a­tion.

“The plaintiffs two years later can­not get any farther than six of these plaintiffs got two years ago,” ar­gued the Justice De­part­ment’s lead law­yer, Rod­ney Pat­ton.

The plaintiffs are in a tough po­s­i­tion be­cause of the lack of pub­lic know­ledge about the NSA’s work, said El­lis, the fed­er­al judge. “How in the world would they get that evid­ence?” El­lis asked the gov­ern­ment law­yer. “This is a very dif­fi­cult bur­den for the plaintiff.”

But the ACLU law­yers seem con­vinced they have what they need this time. Cit­ing un­clas­si­fied gov­ern­ment doc­u­ments like For­eign In­tel­li­gence Sur­veil­lance Court or­ders and a 2014 re­port from the Pri­vacy and Civil Liber­ties Over­sight Board on NSA op­er­a­tions, Toomey ar­gued that “far, far more is known about the sur­veil­lance” than was known in 2013.

Fur­ther, be­cause the Wiki­me­dia Found­a­tion is a plaintiff this round, the ACLU be­lieves there is no ques­tion that the plaintiffs were harmed by spy­ing. Since Wiki­me­dia sends more than a tril­lion “sens­it­ive in­ter­net com­mu­nic­a­tions” a year, ac­cord­ing to the ACLU’s com­plaint (a num­ber which Pat­ton, the gov­ern­ment law­yer, said is out of con­text), its in­ter­na­tion­al com­mu­nic­a­tions were bound to have been spied on.

El­lis made no in­dic­a­tion of when he will an­nounce his de­cision on the plaintiffs’ stand­ing, but ac­know­ledged the scope and tech­nic­al nature of the ma­ter­i­als both sides sub­mit­ted for con­sid­er­a­tion. (“Forests have died for what you’ve done,” he said.)

Al­though El­lis was presid­ing over the hear­ing in Al­ex­an­dria, Vir­gin­ia, the case was ini­tially filed in Mary­land, where the NSA is based. The Mary­land Dis­trict Court handed the case off be­cause of a pe­cu­li­ar con­flict, Toomey said after the hear­ing: Ed­ward Snowden’s moth­er is an ad­min­is­trat­or in a Mary­land court.

If the judge rules that the case can go for­ward, Toomey said it would provide a “strong coun­ter­point” to the out­come of Jew­el v. NSA, a case heard in a San Fran­cisco fed­er­al court in which the judge ruled that the plaintiffs could not win the case without the de­clas­si­fic­a­tion of a sig­ni­fic­ant amount of in­form­a­tion, which would be harm­ful to na­tion­al se­cur­ity.