Rejecting the lower court's ruling that the suit's claims were "speculative", the appeals panel said it would allow to go forward Wikimedia's challenge based on violations of the First (free speech) and Fourth (protection against unreasonable searches and seizures) Amendments of the US Constitution.
NSA's Upstream, whose existence was made public following leaks by whistleblower Edward Snowden in 2013, is a United States global spy program that accesses the cables, switches and routers comprising the principal data routes of the internet to conduct universal worldwide communications surveillance.
The other plaintiffs are The Nation magazine, Amnesty International USA, PEN America, Human Rights Watch (HRW), the Rutherford Institute, the National Association of Criminal Defense Lawyers, Global Fund for Women, and the Washington Office on Latin America (WOLA).
We joined eight co-plaintiffs in filing this lawsuit in March 2015, to challenge government mass surveillance and stand up for the privacy and free expression rights of Wikimedia users.
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In October 2015, U.S. District Judge T.S. Ellis III in Baltimore dismissed the lawsuit, finding a lack of evidence that the NSA, headquartered in Maryland, was conducting surveillance "at full throttle".
In a turn of events, judges on the three-judge panel of the Fourth Circuit Appeals Court disagreed and found that Wikimedia (albeit not other plaintiffs) has a strong basis to proceed with the lawsuit.
Circuit Judge Andre Davis dissented from that part of the decision, saying he would have found the other plaintiffs had standing. "We look forward to arguing this case on the merits", said Patrick Toomey, an attorney for the American Civil Liberties Union (ACLU), which is representing the plaintiffs.
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The government claims that Upstream surveillance is authorized by Section 702 of the Foreign Intelligence Surveillance Act.
The ACLU says that despite the change, upstream surveillance continues and the NSA hasn't said it can't revert to the prior practice in the future.
While the agency has for years rebuffed congressional requests for an estimate of the number of Americans incidentally surveilled via upstream surveillance, some estimate it could account for millions to tens of millions of warrantless interceptions.
Privacy advocates including the ACLU celebrated the move, but noted it isn't permanent, and that Congress should address upstream surveillance via legislation before renewing the FISA Amendments Act when it expires in December. The ACLU argued that because Wikimedia's internet footprint (including its site Wikipedia) was so large, tapping into even one backbone network would have nearly certainly captured information from its sites, violating the foundation's First and Fourth Amendment rights.
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Jason Chaffetz , the Utah Republican and chairman of the House Oversight Committee . His attorney, Robert Kelner, declined to comment on the new assertions by Cummings.
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