Judge TS Ellis III dismissed the suit because it relied on ‘subjective fear’ that National Security Administration collects information that is innately harmful

This article is more than 4 years old

This article is more than 4 years old

A federal district court has dismissed a lawsuit brought by the American Civil Liberties Union against the National Security Agency.

Lawyers for the plaintiffs argued that the surveillance program was innately harmful, despite the NSA’s silence on it in court. “The NSA’s mass surveillance violates our clients’ constitutional rights to privacy, freedom of speech, and freedom of association, and it poses a grave threat to a free internet and a free society,” said Ashley Gorski, a staff attorney with the ACLU national security project. “The private communications of innocent people don’t belong in government hands.”

The judge in the case, TS Ellis III, said the suit relied on “the subjective fear of surveillance”, because the NSA did not admit to having collected any of the information it was alleged to have collected by the ACLU.

Ellis admitted that acquiring enough information to prove illegal spying was difficult whether or not illegal spying had occurred, but said that difficulty was a feature, not a bug. “Establishing standing to challenge section 702 in a civil case is plainly difficult,” he wrote. “But such difficulty comes with the territory.”

“The court has wrongly insulated the NSA’s spying from meaningful judicial scrutiny,” said ACLU National Security Project staff attorney Patrick Toomey, who argued the case.

Ellis is a former navy aviator who in 2006 dismissed a suit against the CIA brought by a German man who accused the agency of abducting and torturing him as part of the US “extraordinary rendition” program. Notably, Ellis dismissed the case not on merit, but on the grounds that a trial would risk national security.



“[P]rivate interests must give way to the national interest in preserving state secrets,” he wrote at the time.

The plaintiffs included Wikipedia, the Nation magazine, Amnesty International and six other organizations, who alleged that the interception and storage of their communications by the NSA violated their constitutional protections against unwarranted search and seizure.