Federal Appeals Court Reinstates Lawsuit Challenging Constitutionality of the NSA's Mass Surveillance Program
by Nisha Whitehead
RICHMOND, Va. — Ruling that the existence of the government’s mass internet surveillance program would violate the First and Fourth Amendments, a federal appeals court has given the green light to a lawsuit challenging the government’s domestic and international spying program.
The lawsuit—brought by a coalition of educational, legal, human rights and media organizations, including The Rutherford Institute, the ACLU, the Wikipedia Foundation, Amnesty International, Human Rights Watch, and the National Association of Criminal Defense Lawyers—was dismissed by a federal district court in Maryland, which ruled that the groups do not have standing to sue the National Security Agency (NSA), the U.S. Department of Justice and their directors. On appeal, the U.S. Court of Appeals for the Fourth Circuit reversed the lower court’s ruling in part, reinstating the lawsuit with Wikimedia as a party. A dissenting opinion filed in the case argued that all the plaintiffs have standing and should be allowed to proceed as parties to the lawsuit.
“On any given day, the average American going about his daily business will be monitored, surveilled, spied on and tracked in more than 20 different ways, by both government and corporate eyes and ears,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Revelations about the NSA’s spying programs only scrape the surface in revealing the lengths to which government agencies and their corporate allies will go to conduct mass surveillance on Americans’ communications and transactions. Senator Ron Wyden was right when he warned, ‘If we do not seize this unique moment in our constitutional history to reform our surveillance laws and practices, we are all going to live to regret it.’”
The lawsuit—brought by The Rutherford Institute, the ACLU, Wikipedia, Amnesty International, Human Rights Watch, the National Association of Criminal Defense Lawyers and other educational, legal, human rights and media organizations—arises from efforts by the U.S. government since the 9/11 terrorist attacks to increase the surveillance and monitoring of U.S. citizens and foreign nationals. Although Congress had previously authorized the issuance of orders for electronic surveillance of foreign agents for intelligence purposes under the Foreign Intelligence Surveillance Act (FISA) in October 2001, President George W. Bush secretly authorized warrantless interception of emails and telephone calls involving persons within the United States if NSA personnel had a “reasonable basis” to believe one party was connected with al Qaeda. When a judge refused to authorize the continuation of this program, the Bush administration obtained amendments to FISA in 2008 authorizing the acquisition without individualized suspicion of the international communications of U.S. citizens that are with or are about foreigners who the NSA chooses to target.
In carrying out this broad authority under the 2008 law, the NSA has engaged in so-called “Upstream surveillance,” which according to the complaint “involves the NSA’s seizing and searching the internet communications of U.S. citizens and residents en mass as those communications travel across the internet ‘backbone’ in the United States—the network of high-capacity cables, switches and routers that facilitates both domestic and international communications via the internet.”