Siding with the government, the judge ruled Friday that the nine plaintiffs in the case had not plausibly alleged that their communications were being monitored by the NSA.
“Plaintiff’s standing argument boils down to suppositions about how Upstream surveillance must operate in order to achieve the government’s stated goals,” wrote US District Judge T. S. Ellis in his ruling. “In a case like this, plaintiffs necessarily rely on probabilities and speculation because most facts about Upstream surveillance remain classified, and hence plaintiffs see through a glass darkly.”
The plaintiffs, which included Amnesty International, Wikimedia Foundation, Pen American Center and the National Association of Criminal Defense Lawyers (NACDL), among others, argued the NSA’s use of “upstream” surveillance enabled the government “to collect communications as they transit the internet ‘backbone.’” This has allowed the government to copy and review text-based communication such as emails, search-engine queries and webpages, as well as engage in “about surveillance” allowing the agency to search communications that are about its targets.
The complaint cited two cases where clients of NACDL had been prosecuted based on Section 702 of the FISA Amendments Act, which has been used by the NSA to justify its mass collection of data from the infrastructure of communications companies.
The plaintiffs also argued that knowing about government surveillance created an undue burden on the organizations, since they had to minimize the risk of surveillance by limiting the sharing of sensitive information.