BALTIMORE, Md. — Pointing to extensive evidence that the government is systematically copying and substantially reviewing all international text-based communications, The Rutherford Institute, the ACLU, Wikipedia, Amnesty International, Human Rights Watch, the National Association of Criminal Defense Lawyers and other educational, legal, human rights and media organizations have asked a federal court to reject the government’s motion to dismiss a major First and Fourth Amendment lawsuit against the National Security Agency (NSA), the U.S. Department of Justice and their directors over the government’s mass surveillance programs. Government officials argue that any harm to the organizations from the government’s spying program is speculative. In rebutting the government’s claims, The Rutherford Institute and its coalition cite media reports and statements of former intelligence officials corroborating allegations that the NSA’s program involves copying and sifting through the contents of international internet traffic.
“On any given day, the average American going about his daily business will be monitored, surveilled, spied on and tracked in more than 20 different ways, by both government and corporate eyes and ears,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Revelations about the NSA’s spying programs only scrape the surface in revealing the lengths to which government agencies and their corporate allies will go to conduct mass surveillance on Americans’ communications and transactions. Senator Ron Wyden was right when he warned, ‘If we do not seize this unique moment in our constitutional history to reform our surveillance laws and practices, we are all going to live to regret it.’”
The lawsuit arises from efforts by the U.S. government since the September 11, 2001, terrorist attacks to increase the surveillance and monitoring of U.S. citizens and foreign nationals. Although Congress had previously authorized the issuance of orders for electronic surveillance of foreign agents for intelligence purposes under the Foreign Intelligence Surveillance Act (FISA) in October 2001, President George W. Bush secretly authorized warrantless interception of emails and telephone calls involving persons within the United States if NSA personnel had a “reasonable basis” to believe one party was connected with al Qaeda. When a judge refused to authorize the continuation of this program, the Bush administration obtained amendments to FISA in 2008 authorizing the acquisition without individualized suspicion of the international communications of U.S. citizens which are with or are about foreigners who the NSA chooses to target.
In carrying out this broad authority under the 2008 law, the NSA has engaged in so-called “Upstream surveillance,” which according to the complaint “involves the NSA’s seizing and searching the internet communications of U.S. citizens and residents en mass as those communications travel across the internet ‘backbone’ in the United States—the network of high-capacity cables, switches and routers that facilitates both domestic and international communications via the internet.” Upstream surveillance encompasses the copying of virtually all international text-based communications, review of the content of those communications by the NSA, and the retention of the copied communications for future use and analysis.
As alleged in the complaint, The Rutherford Institute engages in international and domestic internet communications that are essential to its mission of protecting civil liberties and human rights, and the NSA’s Upstream surveillance has involved the interception, copying and review of those communications. Upstream surveillance constitutes a seizure and search of the Institute’s communications that invades the privacy of the Institute and undermines its work, which often involves maintaining the confidentiality of the communications of those who reach out to the Institute for assistance.