This past week the Supreme Court refused to take up a major case that could’ve ended U.S. Intelligence agencies’ wholesale destruction of first and fourth amendment citizen rights.

The case, Wikimedia v. NSA, concerns whether the NSA should continue to be allowed to surveil “international” communications of Americans without warrant or probable cause, and without even having to show courts or defendants any evidence justifying their surveillance.

Reaction to the Supreme Court’s decision to dismiss Wikimedia’s suit was swift from the American Civil Liberties Union (ACLU):the ACLU.

The ACLU said of the Wikimedia decision:

“By declining to hear our and @knightcolumbia’s case, the Court has slammed shut one of the only doors left to hold the NSA accountable for surveillance abuses revealed in 2013 by @Snowden.”

Edward Snowden is the former NSA government contractor who blew open the door on massive U.S. spying on citizen internet and other communications.

Carte Blanche Surveillance

At this point, almost anyone who utilizes the internet inevitably passes the “international” boundary by clicking on websites that are not based in U.S. countries.

Reading news from the U.K.’s The Daily Mail, shopping on Ebay from a Canadian seller, or viewing a video posted by a person from an account created outside of the U.S. would all qualify under the net of “international” communications.

In other words, the U.S. government currently has a virtual carte blanche to secretly surveil communications of U.S. citizens.

And using and abusing a “State Secret Privilege Defense,” they have also been succeeding in getting cases against their spying dismissed, which is what has now how happened in the case brought by Wikimedia.

The case goes back to 2015 and involves U.S. intelligence of “Upstream” surveillance of foreign targets via “suspicionless” mass data and communication collection, including sifting internet traffic on data transmission lines flowing into and out of the United States.

The case was an outgrowth of Snowden’s sensational revelations.

In a Guardian opinion piece co-authored by former Republican Senator Pat Toomey, now deputy director of the ACLU’s National Security Project, and Alex Abdo, founding litigation director for the Knight First Amendment Institute, the two argued the U.S. government is abusing a “privilege” authority that was meant to be narrow and include normal courts safeguards:

“In Wikimedia’s current lawsuit, the government has taken the maximalist approach. It has asked the courts to dismiss the case on state secrets grounds even though the government itself has released dozens of official reports, court opinions and other documents about Upstream surveillance.

“Notwithstanding this public record, the lower courts threw out the case – without ever deciding whether this sweeping surveillance is constitutional.

“The petition we filed gives the supreme court an important opportunity to rein in these over-broad invocations of secrecy. The court should instruct lower courts not to dismiss cases when the government invokes the state secrets privilege, but rather to use the array of tools that courts have long used to adjudicate cases involving sensitive information – for example, relying on security-cleared counsel, as courts routinely do in criminal cases, or examining secret evidence behind closed doors to assess its impact on a case.

“Unless the supreme court steps in, the state secrets privilege will continue to be a “get out of jail free” card for the government – enabling it to violate the constitution with impunity by invoking secrecy.”

Their entire piece can be read here.

The ACLU is now recommending that Congress not reauthorize the section of the Foreign Intelligence Act that allows a “State Secrets” privilege. The organization commented via twitter:

Instead of reauthorizing Section 702 of the Foreign Intelligence Surveillance Act, the law used to justify this unconstitutional spying, Congress must fundamentally reform this law or let it expire when they vote on it at the end of the year.


With so much of our lives taking place online, it’s crucial we have the freedom to communicate without fear of government surveillance.

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