They’re Spying on Americans: Supreme Court Makes Terrifying Determination On NSA Domestic Spying

As it so often happens in the Supreme Court, the most terrifying decisions in recent memory came quietly, and almost unremarked. It was constituted in a single line item on the court’s daily order list for Tuesday, February 21, 2023, under the heading “Certiorari Denied” it reads cryptically, “22-190 WIKIMEDIA FOUND. V. NSA/CSS, ET AL.” It means that the NSA’s ability to spy on the American people cannot be challenged in court.

The court had upheld the decision of the U.S. Federal Court of Appeals when they dismissed a lawsuit from the Wikimedia Foundation targeted at the National Security Agency, challenging its ability to intercept mass communications across the internet from both international sources, and American citizens.

According to Reuters, the Fourth Circuit Court of Appeals said in a split ruling that the lawsuit must be dismissed after the agency invoked the infamous “state secrets privilege,” meaning that legal proceedings on the public record would harm national security.

Wikimedia reportedly said in the lawsuit that the NSA’s surveillance program known as “Upstream” captures a portion of the foundation’s international communications over the internet and is therefore a violation of the outlets’ First Amendment rights under the U.S. Constitution.

Wikimedia announced on February 21,

“The U.S. Supreme Court today denied the Wikimedia Foundation’s petition for review of its legal challenge to the National Security Agency’s (NSA) ‘Upstream’ surveillance program. Under this program, the NSA systematically searches the contents of internet traffic entering and leaving the United States, including Americans’ private emails, messages, and web communications. The Supreme Court’s denial leaves in place a divided ruling from the U.S. Court of Appeals for the Fourth Circuit, which dismissed Wikimedia’s case based on the government’s assertion of the ‘state secrets privilege.'”

J.D. Tuccille wrote for Reason, “As I’ve pointed out before, state secrets privilege has a sketchy history, evolving from bad official behavior after a 1948 plane crash that killed several civilian observers. When the observers’ widows sued in United States v. Reynolds, the government argued that information about the plane was too super-secret to be revealed in court (a complete lie concealing official negligence, by the way). The Supreme Court agreed that some things are too sensitive to reveal in legal proceedings and gave officialdom a free pass to invoke the phrase “national security” as a shield against accountability. That disturbs even some modern members of the Supreme Court.”


Tuccille quoted Alex Abdo, of the Knight First Amendment Institute at Columbia University who said, “The government has now succeeded in insulating from public judicial review one of the most sweeping surveillance programs ever enacted. If the courts are unwilling to hear Wikimedia’s challenge, then Congress must step in to protect Americans’ privacy by reining in the NSA’s mass surveillance of the internet.” The institute worked alongside Wikimedia and the American Civil Liberties Union on the case.

The only recourse now for the American people lies in the halls of Congress, since as Reason reports, the Foreign Intelligence Surveillance Act‘s Section 702, which allows the said surveillance the Wikimedia Foundation was ensnared by, is scheduled to be reauthorized during this session, and the NSA has a vested interest in making sure its “Upstream” program is allowed to continue.

Congressman Thomas Massie (R-KY) tweeted his objections to this in early February when he wrote, “While surveilling foreign targets under the Foreign Intelligence Surveillance Act (FISA), the US government collects exabytes of data pertaining to American citizens. The Constitution requires a warrant to query that vast database for Americans. End warrantless spying now.”

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