A federal court in Virginia on Friday heard the first oral arguments in a case challenging the “upstream” bulk collection of data by the National Security Agency (NSA).



The plaintiffs claim that the NSA’s “upstream” program, which was partially revealed in the documents leaked by Edward Snowden in June 2013, is illegally surveilling the communications of all internet users.

The case was brought by the American Civil Liberties Union (ACLU) on behalf of the Wikimedia foundation – which owns and operates Wikipedia – as well as Human Rights Watch, the National Association of Criminal Defense Lawyers and several other plaintiffs including the Nation magazine.

Attorneys representing the NSA filed a motion to dismiss the case, claiming the plaintiffs’ case was “speculative” and had no standing.

Lawyers for the ACLU told the court that given what was now known about the “upstream” program – which they said tapped into the “backbone of the internet” by taking information from fibre cables and infrastructure – the NSA “must be intercepting some of Wikimedia’s communications”.

The case was first filed in Maryland. It had to be moved after it emerged that Snowden’s mother worked in the Maryland district court as a senior administrator.

“In the course of its surveillance, the NSA copies and combs through vast amounts of internet traffic, which it intercepts inside the United States with the help of major telecommunications companies,” the ACLU said in a statement.



“It searches that traffic for keywords called ‘selectors’ that are associated with its many targets. Public disclosures and reports show that the government is copying and reviewing virtually all text-based communications entering and leaving the country.”

The ACLU’s lawyers claimed that meant it was “virtually certain” their clients’ data had been surveilled. The government said that this was “just speculation”.

Rodney Patton, representing the NSA, said the complaint had not proved that the plaintiffs’ communications had definitely been under surveillance.

“They will tell you a lot of things today, and the words will be ‘They must be doing this’,” Patton said. “These are speculative words.”

Patton said that the scope of the upstream program was classified, as were its targets.

“The point is,” he said, “how the programme operates is classified.”

Patrick Toomey, an ACLU staff attorney, argued on behalf of the plaintiffs. He said that in order to carry out the kind of surveillance revealed in the Snowden documents and subsequently confirmed in a report by the Privacy and Civil Liberties Oversight Board, the NSA would have to “[open and] reassemble all packets of data going in and out [of the country]”.

Toomey told the court this represented “a grave constitutional violation”.

Judge TS Ellis III asked Patton that if the details of the programme were all classified, “how in the world do plaintiffs show standing?”

“I’m just making the observation that this is a very difficult burden on the plaintiff,” Ellis said. He said the government was effectively arguing that “just because you all keep things secret, the constitutionality can’t be questioned”.

The key for the plaintiffs was to convince the judge that their case is sufficiently different from that in Clapper v Amnesty International, a case in which the Fisa Amendments Act was challenged. It was thrown out of court for being too speculative in February 2013 – less than four months before the first of Snowden’s leaks detailing the scale of the NSA’s bulk data collection were published.

Afterwards, Toomey spoke to reporters outside the courtroom.

“This is the surveillance of the future,” he said. “Real-time communications being monitored.”

He said that “obviously” he disagreed with the government’s view that his case was speculative.

“Americans should not have to worry about the government looking over their shoulder whenever they browse the internet,” he said.

The judge is expected to rule on the motion in the next few weeks.