Flag of the National Security Agency appears as a computer binary codes falling from the top and fading away

The U.S. Supreme Court declined to hear a challenge to a National Security Agency mass surveillance program on February 21, 2023.

(Photo: Gwengoat/Getty Images)

Letting 'Secrecy Prevail,' SCOTUS Declines to Hear Challenge to NSA Mass Surveillance

"If the courts are unwilling to hear Wikimedia's challenge, then Congress must step in to protect Americans' privacy," said the Knight First Amendment Institute's litigation director.

Privacy advocates on Tuesday blasted the U.S. Supreme Court's refusal to hear the Wikimedia Foundation's case against a federal program for spying on Americans' online communications with people abroad.

The nonprofit foundation, which operates Wikipedia, took aim at the National Security Agency (NSA) program "Upstream" that—under Section 702 of the Foreign Intelligence Surveillance Act—searches emails, internet messages, and other web communications leaving and entering the United States.

"In the course of this surveillance, both U.S. residents and individuals located outside the U.S. are impacted," the foundation explained in a statement. "The NSA copies and combs through vast amounts of internet traffic, including private data showing what millions of people around the world are browsing online, from communications with friends and family to reading and editing knowledge on Wikipedia and other Wikimedia projects."

"This government surveillance has had a measurable chilling effect on Wikipedia users, with research documenting a drop in traffic to Wikipedia articles on sensitive topics, following public revelations about the NSA's mass surveillance in 2013," the group added.

Last August, Wikimedia—represented by the ACLU, Knight First Amendment Institute at Columbia University, and the law firm Cooley LLP—petitioned the high court to take up the case after a divided panel of the U.S. Court of Appeals for the 4th Circuit dismissed it based on the "state secrets privilege."

"The Supreme Court's refusal to grant our petition strikes a blow against an individual's right to privacy and freedom of expression—two cornerstones of our society and the building blocks of Wikipedia," said Wikimedia legal director James Buatti. "We will continue to champion everyone's right to free knowledge, and urge Congress to take on the issue of mass surveillance as it evaluates whether to reauthorize Section 702 later this year."

As Common Dreams reported earlier this month, in a separate case, the ACLU sued the NSA along with the Central Intelligence Agency, Department of Justice, and Office of the Director of National Intelligence for failing to respond to public records requests for information about Section 702, which will expire if it is not reauthorized.

"Before Congress votes on reauthorizing this law, Americans should know how the government wants to use these sweeping spying powers," Patrick Toomey, deputy project director for the ACLU's National Security Project, said at the time.

Responding to the development in the Wikimedia case on Tuesday, Toomey declared that "the Supreme Court let secrecy prevail today, at immense cost to Americans' privacy."

"We depend on the courts to hold the government to account, especially when it wields powerful new technologies to peer into our lives like never before. But the Supreme Court has again allowed the executive branch to hide abuses behind unjustifiable claims of secrecy," he continued. "It is now up to Congress to insist on landmark reforms that will safeguard Americans in the face of the NSA's mass spying programs."

In a series of tweets about the case, the ACLU asserted that "we all deserve to use the internet without fear of being monitored by the government" and by declining to hear the case, "the court has slammed shut one of the only doors left to hold the NSA accountable for surveillance abuses revealed in 2013" by whistleblower Edward Snowden.

That thread concluded with a call for Congress to kill Section 702—which Snowden himself echoed on the platform:

Alex Abdo, litigation director of the Knight First Amendment Institute, joined them in urging action from U.S. lawmakers.

"This decision is a blow to the rule of law," Abdo said of the high court. "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."

Join Us: News for people demanding a better world

Common Dreams is powered by optimists who believe in the power of informed and engaged citizens to ignite and enact change to make the world a better place.

We're hundreds of thousands strong, but every single supporter makes the difference.

Your contribution supports this bold media model—free, independent, and dedicated to reporting the facts every day. Stand with us in the fight for economic equality, social justice, human rights, and a more sustainable future. As a people-powered nonprofit news outlet, we cover the issues the corporate media never will. Join with us today!

Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.