A federal judge dismissed a lawsuit Friday filed by the publisher of Wikipedia over allegations that the National Security Agency was spying on its users, ruling that the plaintiffs did not have enough information to plausibly make their claim.
The lawsuit challenged a program called Upstream, which involves gathering information from the backbone of the Internet. Documents leaked by contractor Edward J. Snowden described the program, and the government subsequently acknowledged its existence.
Despite that admission, the details are still secret, making it hard for people to know whether their communications have been collected, giving them standing to sue the agency.
Judge T.S. Ellis III concluded that the plaintiffs had to speculate about key elements of the spy system. So under a 2013 Supreme Court ruling on a similar challenge, he wrote, their case could not go forward.
Even if the NSA has the technical ability to inspect all the Internet traffic flowing across America's borders, as the plaintiffs alleged, that does not mean the agency is doing that, Ellis wrote.
"Plaintiffs provide no factual basis to support the allegation that the NSA is using its surveillance equipment at full throttle," he wrote.
And because the NSA's methods are reviewed by a secret court and must comply with the Constitution, Ellis added, it is likely that "the NSA is not using its surveillance equipment to its full potential."
The American Civil Liberties Union, which represented the Wikipedia publisher and eight other plaintiffs, said that if the ruling stands, it would be impossible to challenge the NSA in civil court.
"The decision turns a blind eye to the fact that the government is tapping into the Internet's backbone to spy on millions of Americans," ACLU lawyer Patrick Toomey said in a statement. "The dismissal of the lawsuit's claims as 'speculative' is at odds with an overwhelming public record of warrantless surveillance."
The ACLU said it is considering an appeal.
Ellis concluded his ruling by listing ways in which the classified program could be subject to public examination. For example, he said, if prosecutors seek to use evidence gathered by the program in a criminal case, that would open it to scrutiny.
Ellis acknowledged that mounting a civil case is "plainly difficult."
"Such difficulty comes with the territory," he wrote. "It is not a flaw of a classified program that standing to challenge that program is not easily established; it is a constitutional requirement essential to separation of powers."