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Judge dismisses Wikimedia case against the NSA

Somehow Wikimedia has to prove that it's being surveilled, even though that surveillance would be secret.
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The NSA’s Upstream surveillance program was exposed by Edward Snowden back in 2013. In 2015, Wikimedia, the parent company of Wikipedia and other non-profit knowledge projects, challenged this program in a lawsuit against the NSA, the DoJ, the ODNI and the heads of those agencies.

While the Upstream surveillance program is similar to PRISM in that it allows the NSA to monitor and collect emails, search terms and other online activity of Americans, it is different in that, instead of relying on the “cooperation” of ISPs, Upstream bypasses them and instead relies on the “cooperation” of telecommunications infrastructure. Wikimedia argued that this program violates the first and rights of American citizens, and far exceeds the scope intended by Congress.

According to Data Center Dynamics, the case was dismissed later that year for a lack of evidence supporting the claim that the NSA was using it for “bulk collection”, rather than the targeted collection of a specific individual’s data – which meant that the NSA was acting legally.

In 2017, the case was appealed and the decision reversed, based on the understanding that Wikimedia generates so much traffic that it’s impossible to be used for monitoring a specific individual – meaning that the collection is indeed done in bulk, which is indeed in violation of the first and fourth amendment rights of American citizens.

Two days ago, the case was dismissed again after reaching the conclusion that without specific understanding of the upstream program, Wikimedia’s case has no leg to stand on. Of course, this is impossible due to the classified nature of the program.

Judge Ellis said:

“For Wikimedia to litigate the standing issue further, and for defendants to defend adequately in any further litigation, would require the disclosure of protected state secrets, namely details about the Upstream surveillance program’s operations.

For the reasons that follow, therefore, the standing issue cannot be tried, or otherwise further litigated, without risking or requiring harmful disclosures of privileged state secrets, an outcome prohibited under binding Supreme Court and Fourth Circuit precedent. Thus, the case must be dismissed, and judgment must be entered in favor of defendants.”

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