Judge dismisses Wikimedia case against NSA over Upstream surveillance
The judge, however, found that Schulzrinne's hypothetical "is consistent with [the] government's public disclosures about Upstream surveillance." More importantly, Schulzrinne proves that "it is not a technological necessity that the NSA must copy all of the text-based Internet communications traversing a circuit that the NSA monitors."
We don't know the truth of the matter, and we probably never will, as the actual details as to how Upstream operates are state secrets.
Judge Ellis said: "For Wikimedia to litigate the standing issue further, and for defendants to defend adequately in any further litigation, would require the disclosure of protected state secrets, namely details about the Upstream surveillance program's operations. For the reasons that follow, therefore, the standing issue cannot be tried, or otherwise further litigated, without risking or requiring harmful disclosures of privileged state secrets, an outcome prohibited under binding Supreme Court and Fourth Circuit precedent.
"Thus, the case must be dismissed, and judgment must be entered in favor of defendants."
The judge noted that Wikimedia's loss was "not through any fault of its own," but added: "It is appropriate, however, 'in limited circumstances like these, [that] the fundamental principle of access to court must bow to the fact that a nation without sound intelligence is a nation at risk."
Patrick Toomey, senior staff attorney with the ACLU's Speech, Privacy, and Technology Project, and one of Wikimedia's representatives on the case, told DCD: "The public record shows that Wikimedia, like millions of Americans, is swept up in the NSA’s mass Internet surveillance.
"It is disappointing that the court accepted the government's flawed secrecy claims to deny Wikimedia and its users the opportunity to defend their privacy rights. The decision places one of the government’s most intrusive and expansive surveillance programs beyond the reach of the Constitution, and we are exploring all options in response."
Gloss