Abusive government behavior has again been found to be too sensitive to national security to face legal challenges in the court system. Last week, the U.S. Supreme Court declined to review a lower court’s dismissal of the Wikimedia Foundation’s lawsuit against a National Security Agency surveillance program revealed a decade ago by Edward Snowden. With “state secrets privilege” barring litigation, that leaves upcoming congressional debates over renewal of the law authorizing the program as the only recourse for civil liberties advocates.

“The U.S. Supreme Court today denied the Wikimedia Foundation’s petition for review of its legal challenge to the National Security Agency’s (NSA) ‘Upstream’ surveillance program,” Wikimedia announced February 21. “Under this program, the NSA systematically searches the contents of internet traffic entering and leaving the United States, including Americans’ private emails, messages, and web communications. The Supreme Court’s denial leaves in place a divided ruling from the U.S. Court of Appeals for the Fourth Circuit, which dismissed Wikimedia’s case based on the government’s assertion of the ‘state secrets privilege.'”

“This decision is a blow to the rule of law,” commented Alex Abdo, of the Knight First Amendment Institute at Columbia University, which worked with Wikimedia and the American Civil Liberties Union (ACLU). “The government has now succeeded in insulating from public judicial review one of the most sweeping surveillance programs ever enacted. If the courts are unwilling to hear Wikimedia’s challenge, then Congress must step in to protect Americans’ privacy by reining in the NSA’s mass surveillance of the internet.”

The “Upstream” surveillance program at issue collects “communications ‘to, from, or about'” a foreign target designated under Section 702 of the Foreign Intelligence Surveillance Act, according the NSA. In the clearer language of the Electronic Frontier Foundation, “upstream surveillance involves collecting communications as they travel over the Internet backbone, and downstream surveillance (formerly PRISM) involves collection of communications from companies like Google, Facebook, and Yahoo.”

As Edward Snowden revealed and the NSA conceded, this broad surveillance may be authorized against foreign targets, but frequently scoops up Americans—often deliberately. “The government is increasingly using these broad and intrusive spying powers in run-of-the-mill criminal investigations against Americans, circumventing their Fourth Amendment rights,” the ACLU warned in 2020. (Read more from “SCOTUS Says Domestic Spying Is Too Secret to Be Challenged in Court” HERE)

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