The constitutionality of the National Security Agency's (NSA) mass surveillance of communications between Americans and foreigners under ‘Upstream’ has been challenged by the Wikimedia Foundation in a review petition filed at the United States Supreme Court on August 26th. Viewed by MediaNama, the petition requests a review of a 2021 verdict by the United States Court of Appeals for the Fourth Circuit (Fourth Circuit Court). The petition may be considered by October 2022, says the Foundation. The Wikimedia Foundation first filed a suit challenging Upstream’s legality at a District Court in 2015. After being dismissed the same year for lacking standing, the Fourth Circuit Court reversed the dismissal in part in 2017, arguing that the Foundation had enough standing to pursue the case. The case returned to the District Court, however, the government refused to cooperate citing the ‘state secrets’ privilege—which allows it to withhold information in a legal proceeding if disclosing it threatens national security. Wikimedia challenged the government's use of the provision, however, the District Court upheld it in 2018—as did the Fourth Circuit Court in September 2021, when it dismissed the case. A divided Bench held that the Foundation had enough non-privileged evidence (or evidence based on public disclosures) to establish a prima facie case. However, the government argued that it may have ‘sensitive information’ that would establish a lawsuit. ‘A majority of the court held that this possibility was enough to end the litigation,’ the petition says. The case was dismissed without ever establishing whether such ‘secret’…
