Judge T. S. Ellis, III of the federal district court for the District of Maryland ruled that Wikimedia Foundation and eight other organizations lacked standing to bring a complaint alleging that the NSA’s upstream program violated their rights under the First and Fourth Amendments. In order to distinguish their situation from that of the plaintiffs in Clapper v. Amnesty Int’l USA, 133 S.Ct. 1138 (2013), the plaintiffs had alleged that the NSA had the technical capacity and the strategic motivation to use Upstream to intercept virtually all international communications. To the contrary, Judge Ellis found that “[e]ven if the NSA’s surveillance equipment is capable of ‘examin[ing]the contents of all transmissions passing through collection devices,’ … it does not follow that the NSA is, in fact, using the surveillance equipment to its full potential.” At *9. Although the judge reasoned that the government’s classification of the upstream program made it difficult, if not impossible, for the plaintiffs to prove their contentions about the scope of surveillance, he was unperturbed by the government’s ability to use secrecy to preclude legal challenges. “It is not a flaw of a classified program that standing to challenge that program is not easily established; it is a constitutional requirement essential to separation of powers.” At 15.
The judge also rejected the specific factual bases that plaintiff Wikimedia Foundation had presented to establish standing. Dismissing Wikimedia’s calculations about the likelihood of interception of its users’ communications as based on conjectures about Upstream’s scope, he ignored an NSA slide, leaked by Snowden, in which Wikimedia was cited as a surveillance target.
Further, the judge found that NACDL lacked standing even though the government had notified two criminal defendants represented by one of its members, Joshua Dratel, that their communications had been acquired through Section 702 surveillance. Here, Judge Ellis reasoned that even if attorney Dratel’s communications with his clients were likely acquired as part of the Section 702 surveillance, there was no proof that the communications were acquired through the upstream, rather than the Prism, program. Without such proof, standing to bring a complaint against the upstream program did not exist.