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In the aftermath of Edward Snowden’s revelations in 2013, a grudging acceptance was made by the Obama administration that something had to be done about a roguish surveillance complex unhinged from its foundations. The National Security Agency had overstretched its powers, to the point where it was not only conducting its standard mischief against foreign targets, but against US citizens roped into the exercise.
The NSA has been in the news again, this time with the reversal by a US appeals court of a lower tribunal’s decision that the Wikimedia Foundation has standing to object to the Upstream program in court.
The central problem to any legal challenge against dragnet surveillance has been proof – proof, that is, of violation and damage to the subject in question. This was the case in Clapper v Amnesty International, where the Supreme Court observed, almost disdainfully, that Amnesty was mounting a novel approach based on a “speculative chain of possibilities” that could not “establish that injury based on future surveillance [was] certainly impending or [was] fairly traceable to [Section 702 surveillance].”
In October 2015, the point was further tested by Wikimedia and eight other organisations, among them Human Rights Watch and Amnesty International, who faced another sceptical judicial survey.
Alleged again were points that that the NSA’s interception, collection, review and storing of the communications by the groups constituted a violation of both the First and Fourth Amendments. But the parties were hoping that Clapper could be distinguished.
The Upstream program was the main bone of contention, as it could not be said to be limited to communications sent or received by NSA specific targets. Internet communications about the targets, a sort of eager beaver reach around, could still be caught.
The NSA contended, as it did in all cases on the subject, that the plaintiffs lacked Article III standing, taking the ever predictable ground that necessary secrecy on its operations prevented the adducing of any documentation that damage to the plaintiffs could be proved.
The 2015 opinion found in favour of the NSA, as it was not possible to show that injury had been “real and immediate” as opposed to “conjectural and hypothetical”. While there had been differences with Clapper, the issue of actual injury, causation and redressability, still remained.
The Fourth Circuit Court of Appeals this week needed little convincing that the foundation’s reach – compromising a trillion communications a year – would at some point fall into the NSA net. “Wikimedia has plausibly alleged that its communications travel all of the roads that a communication can take, and that the NSA seizes all of the communications along at last one of those roads.”
Another troubling aspect was also heeded, notably the subject of injury under the First Amendment: “And, because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it has standing to sue for violation of the First Amendment.”
This news accompanied the revelations of a Foreign Intelligence Surveillance Court opinion during the week that the NSA had shown a distinct lack of “institutional candour” on the subject of breaches to the Fourth Amendment.
The issue of section 702 surveillance under the Foreign Intelligence Surveillance Act remains the persistent problem. Upstream collection sourced through transits on the backbone routes of the Internet takes the matter beyond mere incidental collection, something bound to happen between American and non-American sources.
As Andrew McCarthy explains, “The NSA must instead capture packets of email-data – which include lots of emails beside the targeted email. It sifts through these packets, finds and assembles the components of the email it was looking for and discards the rest.”
The clues from the FISA opinion, despite being, at points, heavily redacted, reveal that the entire process the NSA engages in on the subject of upstream collection is bound to fall foul of constitutional protections.
Even if the organisation is, in fact, sifting and discarding received communications, there are still warrantless seizures of material in the absence of probable cause or relevant foreign intelligence purpose. Despite minimisation procedures the NSA is compelled to take, the Fourth Amendment requirement on seizure and search without adequate cause has been the subject of persistent violation.
Added to this the routine use of identifiers of American citizens, used to search databases, a practice specifically disapproved of by the FISA court in 2011, and we are left with an organisation that remains to be tethered. How little has, in fact, changed at the top, leaving the courts to do some necessary, and much needed judicial cleaning.