By Joseph Lord
The Supreme Court of the United States (SCOTUS) has refused to hear a challenge to a federal surveillance program.
The program in question, known as “Upstream,” allows the National Security Agency (NSA) to intercept telephone and Internet traffic from within and outside the United States.
The details of the program were among those leaked by former CIA and NSA contractor Edward Snowden, who in 2013 blew the whistle on mass surveillance programs orchestrated by the U.S. government. Until then, the administration of President George W. Bush and the intelligence community had falsely claimed that Americans’ data was not being collected and saved.
The Upstream program gives the NSA access to massive amounts of data, often through the compliance of telecommunication providers themselves. Providers choose the data most likely to be of foreign origin before handing it over to the NSA. However, the program is also used within the United States.
The case, Wikimedia v. NSA, was brought against the NSA by Wikimedia, the nonprofit group that owns Wikipedia. The American Civil Liberties Union (ACLU) assisted Wikimedia with legal counsel.
In a blog post about the case, the ACLU wrote: “Upstream surveillance, which the government claims is authorized by the Section 702 of the FISA Amendments Act, is designed to ensnare all of Americans’ international communications, including emails, web-browsing content, and search engine queries. With the help of companies like Verizon and AT&T, the NSA has installed surveillance devices on the internet ‘backbone’—the network of high-capacity cables, switches, and routers across which Internet traffic travels.”
‘State Secrets Privilege’
The hearing fits into a larger cultural dispute over the proper balance between liberty and security, an issue that was brought to the fore by wide-reaching legislation passed in the aftermath of the September 11 attacks.
Had SCOTUS heard the case, it could have marked a precedent-setting event in regards to other ongoing mass surveillance programs.
Earlier, the case had reached a divided outcome when considered in the U.S. Court of Appeals for the Fourth Circuit. Nevertheless, that court ruled that the government could reasonably assert “state secrets privilege” about the Upstream program.
James Buatti, legal director at the Wikimedia Foundation, called the decision “a blow against an individual’s right to privacy and freedom of expression” in a Wikimedia blog post.
“The Supreme Court’s refusal to grant our petition strikes a blow against an individual’s right to privacy and freedom of expression—two cornerstones of our society and the building blocks of Wikipedia,” Buatti said.
FISA Section 702
Buatti also referenced a highly controversial section of the Foreign Intelligence Surveillance Act, which initially passed Congress in 1978 as a safeguard for Americans’ civil liberties.
“We will continue to champion everyone’s right to free knowledge, and urge Congress to take on the issue of mass surveillance as it evaluates whether to reauthorize Section 702 later this year,” Buatti said.
The FISA was originally passed in response to reported abuses of government intelligence surveillance. The bill was the end product of Senate investigations into the legality of domestic intelligence activities. Initially, the bill was intended to place judicial and congressional safeguards on the surveillance of foreign agents acting within the United States while also giving intelligence agencies the tools needed to monitor genuine foreign threats.
Thus, Americans thought little of the bill in the wake of other legislation passed in response to the Sept. 11 terror attacks.
These bills, including the PATRIOT Act, the Aviation and Transportation Security Act, and others, sought to enhance domestic security at the cost of many American civil liberties.
The FISA first gained public attention in December 2005 following the publication of a New York Times article that showed that President George W. Bush had since at least 2002 carried out warrantless wiretapping within the United States. Another report from Bloomberg suggested that this expansive use of FISA may have begun as early as 2000, before the terror attacks that purportedly made the measures necessary.
FISA was later revised in 2008 to grant broad new powers to the Office of the Director of National Intelligence (ODNI) and U.S. intelligence agencies. Section 702 was first given the force of law in the 2008 legislation.
Section 702 of the FISA says: “the Attorney General (AG) and the Director of National Intelligence (DNI) may jointly authorize the targeting of (i) non-U.S. persons (ii) who are reasonably believed to be outside of the United States (iii) to acquire foreign intelligence information.”
However, this power can grant an expanding circle of possible searches to the FBI and other intel agencies, who can use the same power against American citizens who had any interaction with targeted foreigners.
Nominally, this is illegal; section 702 of the FISA authorizes only surveillance of foreign agents operating outside the United States.
But concerns remain—particularly among Republicans ramping up an investigation into the weaponization of the Federal government—about renewing this surveillance program.
Without House GOP support for a renewal of sec. 702, the law will expire on Dec. 31, 2023.