The Wikimedia Foundation's attempt to stop the National Security Agency (NSA) from spying on its users has foundered because it's impossible to offer court-acceptable evidence of the NSA's activities.

Wikimedia and its co-plaintiffs, a who's-who of human rights organisations, announced their lawsuit back in March.

However, they've been blocked by the problem that previously killed off a 2013 case in which Amnesty International and other organisations tried to take on the NSA over snooping. In that case (summary at Wikipedia), the United States Supreme Court ruled that the case was too speculative to proceed.

That provided the precedent for the Federal Court's decision, posted here by the American Civil Liberties Union (ACLU):

“[A]lthough plaintiffs have alleged facts that plausibly establish that the NSA uses Upstream surveillance at some number of chokepoints, they have not alleged facts that plausibly establish that the NSA is using Upstream surveillance to copy all or substantially all communications passing through those chokepoints. In this regard, plaintiffs can only speculate, which Clapper forecloses as a basis for standing.”

The Wikimedia case had tried to use the scale of the organisation as part of the basis for its case – that with a trillion annual connections, snooping on its traffic represents a significant chunk of the 'net's users.

About that, the court was dismissive, with the judge writing that Wikimedia didn't put the number in context: “For example, one trillion dollars are of enormous value, whereas one trillion grains of sand are but a small patch of beach.”

The ACLU's language in this post indicates it might hope to continue the case in the Supreme Court. It says the court “misunderstands how upstream surveillance is fundamentally different from and much more intrusive than the surveillance considered by the Supreme Court in Clapper”, and that the court “ignores how Internet communications are structured”. ®