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Another shot at challenging secret surveillance?

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  1. First Amendment
We take a look at a long-running challenge to the National Security Agency’s so-called “Upstream” surveillance.
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Almost 10 years after Edward Snowden shed light on the vast scope of the National Security Agency’s internet surveillance activities, it remains exceptionally difficult for anyone challenging those programs to get their day in court. Often, lawsuits are thrown out before they can reach the merits for lack of proof that the plaintiff in particular was monitored, or on the theory that litigating the case would risk exposing state secrets. As a result, a new bid to have the U.S. Supreme Court weigh in objects, the legality of one important aspect of those programs “has yet to be considered by any ordinary court, civil or criminal, in the more than twenty years of its operation.”

The petition for the justices’ review comes in Wikimedia Foundation v. NSA, a long-running challenge to the NSA’s so-called “Upstream” surveillance, in which the American Civil Liberties Union and Knight First Amendment Institute at Columbia University represent Wikimedia. (The Reporters Committee filed a friend-of-the-court brief at an earlier stage of the litigation to highlight the chilling effect that the NSA’s bulk surveillance has on First Amendment activities.)

As a 2014 report from the Privacy and Civil Liberties Oversight Board describes in much too much detail to fairly summarize for a brief newsletter, Upstream is one of a pair of controversial approaches to warrantless intelligence collection that the NSA operates under Section 702 of the FISA Amendments Act of 2008. Both involve targeting non-U.S. persons that the NSA believes are located outside the United States with the compelled assistance of private tech firms. Under PRISM collection, targets’ communications are pulled from internet service providers like Google or Facebook; under Upstream, the NSA gets the help of the companies that operate the internet backbone instead. In each case, surveillance is conducted under the programmatic supervision of the Foreign Intelligence Surveillance Court — but without individualized warrants.

Since the case was filed in 2015, though, the Wikimedia matter hasn’t gotten anywhere near the question whether Upstream surveillance complies with the Constitution. Instead, the litigation so far has focused on whether Wikimedia is entitled to have its claims that Upstream violates the First and Fourth Amendments heard at all. In a pre-Snowden case, the Supreme Court had rejected an effort to challenge the constitutionality of Section 702 on its face, on the theory that the plaintiffs there hadn’t provided enough reason to think their own communications would be monitored. With the benefit of subsequent disclosures, Wikimedia argued that — without getting too deep into the technical weeds — the Upstream program couldn’t work as publicly described without incidentally collecting at least some of the organization’s internet traffic. But the government responded that introducing evidence to rebut that claim would run an intolerable risk of disclosing sensitive details about the way the NSA operates, asking that the case be dismissed under the state secrets doctrine as a result.

Last year, the U.S. Court of Appeals for the Fourth Circuit endorsed the government’s argument, tossing the case entirely. The plaintiffs are now asking the Supreme Court to revive their suit, arguing that “[t]he government should not be able to use the theoretical possibility of a secret defense to foreclose any judicial review of constitutional claims.” The battle is likely uphill; the Court turned down an opportunity to review the Electronic Frontier Foundation’s (even longer-running) challenge to NSA bulk surveillance, Jewel v. NSA, earlier this summer.

But one way or the other, the broader fight over the wisdom and legality of Section 702 will only intensify in the months to come. At some point next year, Congress will have to turn its attention to deciding whether to renew the program in advance of its scheduled expiration at the end of 2023. And when lawmakers do revisit the issue, it’s a debate we’ll be following closely.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary.

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