By Deborah Elkins
The Daily Record Newswire
RICHMOND - Plaintiff organizations that communicate over the Internet, including lead plaintiff Wikimedia Foundation, do not have standing to sue for violation of First and Fourth Amendment rights by defendants, including the National Security Agency, through a program of "Upstream" surveillance that allegedly allows the government to collect, copy and review communications as they transit the Internet "backbone."
This is the latest in the recent series of constitutional challenges to the National Security Agency's data gathering efforts. In this case, nine organizations that communicate over the Internet allege that the NSA's interception, collection, review and storing of plaintiffs' Internet communications violates plaintiffs' rights under the First and Fourth Amendments and exceeds the NSA's authority under the Foreign Surveillance Act.
The nine plaintiffs are: Wikimedia Foundation; the National Association of Criminal Defense Lawyers; Amnesty International USA; Human Rights Watch; PEN American Center; Global Fund for Women; the Nation magazine; the Rutherford Institute; and the Washington Office on Latin America. The six defendant government agencies and officers are: the NSA; the DOJ; the Office of the Director of National Intelligence; Adm. Michael S. Rogers, NSA director; Director of National Intelligence James R. Clapper and Attorney General Loretta E. Lynch.
This case concerns "Upstream surveillance" under a surveillance program called "PRISM," through which U.S.-based Internet Service Providers furnish the NSA with electronic communications that contain information specified by the NSA.
Clapper v. Amnesty International is the Supreme Court's most recent pronouncement on standing with respect to litigants challenging the NSA's data gathering efforts. In Clapper, the Supreme Court explained that in attempting to establish standing, the Clapper plaintiffs did not provide any evidence that their communications had been monitored under any program authorized by Section 702. Instead, plaintiffs argued they had standing because there was an "objectively reasonable likelihood" that plaintiffs' communications would be intercepted in the future. Clapper held that plaintiffs' alleged injury was speculative and did not establish standing.
The standing requirement applies here just the same as it applied in Clapper, and the result in Clapper that standing cannot be established on a basis of a "speculative chain of possibilities" - also applies here. Whether speculation is based on allegations in a complaint or facts in a record has no bearing on the outcome, as in neither context may standing be established on a speculative chain of possibilities."
Plaintiffs are correct that more is known about the nature and capabilities of NSA surveillance than was known at the time of Clapper, but no more is known about whether Upstream surveillance actually intercepts all or substantially all international text-based Internet communications, including plaintiffs' communications. Although plaintiffs' speculative chain is shorter, it is a chain of speculation nonetheless. Details about the tools of Upstream surveillance reveal how Upstream surveillance functions when the NSA engages in that mode of surveillance, but those details do not cure the speculative foundation on which plaintiffs' claim of actual injury is based that the NSA is in fact using Upstream surveillance to intercept substantially all text-based international Internet communications, including plaintiffs' communications.
Plaintiffs conclude there is a greater than 99.9999999999 percent chance that the NSA has intercepted at least one of their over one trillion communications on the basis of an arbitrary assumption, namely that there is a 0.00000001 percent chance that the NSA will intercept any particular communication. Plaintiffs provide no basis for the latter figure, nor do they explain why the figure is presented as a conservative assumption. Plaintiffs seem to presume a strong of zeros buys legitimacy. It does not.
Finally, the subjective fears of third parties and any alleged burdensome measures taken as a result of subjective fear of surveillance are not fairly traceable to Upstream surveillance and therefore do not establish Article III standing.
Published: Thu, Dec 10, 2015
