How Can You Prove the NSA Is Spying on You if It’s a Secret?

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A federal judge dismissed an ACLU lawsuit on Friday challenging the NSA's spying on international Internet communications. Pawel Kopczynski/Reuters

Though former National Security Agency contractor Edward Snowden’s nearly two-and-a-half-year-old revelations exposed the scope of government surveillance, plaintiffs are struggling to fight the intelligence agency in court for allegedly violating their privacy rights. The reason: Information about whom the NSA is spying on remains classified.

This catch-22 played out again on Friday, when a federal judge dismissed a March lawsuit filed by the American Civil Liberties Union against the NSA for its snooping on Americans’ international Internet communications.

The ACLU’s lawsuit challenged the NSA’s “Upstream” program on behalf of organizations including the Wikimedia Foundation. “We’re filing suit today on behalf of our readers and editors everywhere,” Jimmy Wales, founder of Wikipedia, said in March. “Surveillance erodes the original promise of the Internet: an open space for collaboration and experimentation, and a place free from fear.”

Upstream gathers data from the Internet’s so-called backbone—the physical infrastructure that carries online communications around the world. Though the Foreign Intelligence Surveillance Act Amendments Act of 2008 gave the government authority to capture communications with “non-U.S. persons,” groups like Wikimedia fear the agency is also capturing the communications of nontargets in its wide net.

The government publicly recognized the existence of Upstream following Snowden’s leak of classified information, but further details, such as what information the agency is collecting, remain secret.

Judge T.S. Ellis III concluded on Friday that though the plaintiffs have evidence of the NSA’s technical ability to inspect Internet traffic, they could only speculate that the NSA was using this capability and, more specifically, targeting them with it.  

“Plaintiffs provide no factual basis to support the allegation that the NSA is using its surveillance equipment at full throttle,” the judge wrote, according to The Baltimore Sun.

“The decision turns a blind eye to the fact that the government is tapping into the Internet’s backbone to spy on millions of Americans,” ACLU National Security Project Staff Attorney Patrick Toomey, who argued the case last month, said in a statement. “The dismissal of the lawsuit’s claims as ‘speculative’ is at odds with an overwhelming public record of warrantless surveillance.”

The ACLU is considering an appeal, the Sun reports.