·  Legal News, Analysis, & Commentary

Lawsuits & Litigation

Appeals Court Dismisses ACLU Privacy Lawsuit Against National Security Agency

— September 17, 2021

The lawsuit claimed that the NSA’s “Upstream” project illegally intercepts Americans’ communications.

A federal appeals court has upheld the dismissal of an American Civil Liberties Union lawsuit against the National Security Agency, in which the ACLU challenged the warrantless surveillance of American citizens’ international email and telephone conversations.

The Associate Press reports that, on Wednesday, the 4th U.S. Circuit Court of Appeals found that the lawsuit must be dismissed.

The ruling follows the federal government’s assertion of “state secrets privilege,” meaning that a full exploration of the surveillance program—if made public in court—could damage national security.

According to The A.P., the Wikimedia Foundation—owner of Wikipedia, and party to the lawsuit—claimed that the NSA’s so-called “Upstream” program intercepted some of its international communications, thereby violating the organization’s First and Fourth Amendment rights.

While details of Upstream remain classified, The Associated Press says that the NSA collects data “from transmissions over high-speed cables,” carrying electronic communications into and out of the United States.

The NSA’s “Upstream” program intercepts American citizens’ overseas communications, including text messages and emails. Image via ( Listed as “free for commercial use.”

But Judge Albert Diaz, an Obama-era appointee, said the lawsuit could not possibly proceed without threatening national security.

“There’s simply no conceivable defense tot his assertion that wouldn’t reveal the very information that the government is trying to protect: how Upstream surveillance works and where it’s conducted,” Diaz wrote in his ruling.

However, the 4th Circuit Appeals’ panel was not unanimous.

Judge Diana Gribbon Motz, says The Associated Press, observed that the Supreme Court is set to hear arguments on a case that could jeopardize the government’s further use of the “state secrets” defense—and that allowing the government to invoke such a privilege before the justices can render a verdict is a mistake.

Gribbon Motz suggested that the NSA’s defense was inadequate, insofar as it seemed built atop scenarios which have never really come to fruition.

The appeals court’s opinion, writes Gribbon Motz, “Stands for a sweeping proposition: A suit may be dismissed under the state secrets doctrine, after minimal judicial review, even when the Government premises its only defenses on far-fetched hypotheticals.”

ACLU attorney Patrick Toomey, who works with the group’s National Security Project, told The Associated Press he is “extremely disappointed” with the majority ruling.

“Every day, the NSA is siphoning Americans’ communications off the internet backbone and into its spying machines, violating privacy and chilling free expression,” Toomey said. “Congress has made clear that the courts can and should decide whether this warrantless digital dragnet complies with the Constitution.”

The ACLU has said it is considering all available options for appeal or other, further legal action.


Court rejects lawsuit against NSA on ‘state secrets’ grounds

US court dismisses years-long NSA lawsuit, citing ‘state secrets’

Join the conversation!