Intelligence

Secrecy impinges on surveillance lawsuit against NSA

Government lawyers pressed a federal judge to throw out a lawsuit brought by the Wikimedia Foundation against the National Security Agency over its "Upstream" surveillance program, arguing the plaintiffs don't know how the program is structured and thus cannot prove that their communications were being collected.

In May 30 oral arguments at the Eastern District Court of Virginia, Department of Justice attorney Olivia Scott told Judge T.S. Ellis III the plaintiffs' assertion that their internet communications were subject to surveillance under the program rests on faulty and unproven speculation about how the NSA taps into the internet backbone to collect emails, chats and web traffic.

Wikimedia claims the government is systematically copying all communications it finds traveling through undersea fiber-optic cables that carry internet traffic from North America to the rest of the world, before filtering for certain selectors. Because the foundation (which owns the internet encyclopedia Wikipedia) and its users engage in trillions of internet communications per year, it claims it has been harmed by the government's surveillance and is seeking a halt to the program.

Patrick Toomey, a lawyer from the American Civil Liberties Union representing the foundation, argued that the government's own public disclosures as well as details revealed in the 2013 Edward Snowden leaks and expert testimony prove that it would be technically impossible for NSA to operate the program without copying at least some of Wikimedia's internet traffic.

Scott said "the plaintiff and [its experts] are really guessing" as to whether or not the NSA conducts Upstream surveillance this way, offering the government's own third-party expert testimony that laid out a number alternative methods she said would first filter out any unauthorized communications from U.S. persons and theoretically not touch Wikimedia's communications.

Before Wikimedia can proceed with the lawsuit, it must first convince Ellis it has sufficient evidence that it is an aggrieved party that has been harmed by the NSA's surveillance.

Ellis asked why he shouldn't compel the government to reveal to him in a classified setting how the program is structured so he could determine whether Wikimedia has standing. Scott replied that in revealing whether Wikimedia's assertion was correct or providing further details about how or where the NSA taps into undersea cables would undermine the program's effectiveness and reveal operational details that harm national security.

Toomey rejected that claim, saying Wikimedia engages in so many different kinds of internet communications that "no target, terrorist or spy would learn that they are being surveilled by granting Wikimedia standing" to sue. Further, he said that the government's refusal to provide the court with further details about the program means that "no civil case could go forward without the government's permission," something he argued Congress did not intend when it crafted the underlying Foreign Intelligence Surveillance Act (FISA) law the program is based on.

Before adjourning, Ellis said the court would take the matter under advisement. "I think this case involves substantial challenges on all sides," he said.

The lawsuit represents one of the most direct legal challenges to the NSA's controversial surveillance program, launched in the wake of the Sept. 11 terrorist attacks. It was designed to target foreign communications outside of the United States for terrorism or counterintelligence investigations, but the Snowden documents revealed that while searching for communications "about" such targets, the NSA was also collecting communications sent to and from U.S. persons as well as "wholly domestic communications," exchanges where both the sender and receiver are U.S. persons.

Those revelations and others led Congress to pass the USA Freedom Act, which reined in some aspects of NSA spying while also requiring regular transparency reports to Congress about how the intelligence community was using its FISA authorities. The latest report issued in April 2019 listed 164,770 targets for surveillance under Section 702 of FISA, which encompasses the Upstream surveillance program, in 2018. It also lists 9,637 U.S. person query terms, each of which can capture multiple communications, during that same period.