The publisher of Wikipedia fought Friday to keep a challenge against alleged National Security Agency snooping alive, with lawyers arguing it was time for federal courts to take another look at how the government collects information as it travels across the Internet.
Two years after Edward Snowden revealed details of the National Security Agency's electronic surveillance programs, Justice Department lawyer Rodney Patton argued that those disclosures and subsequent admissions by the government had almost no bearing on the lawsuit brought by the Wikimedia Foundation, Amnesty International, the Rutherford Institute and other groups.
"How the program operates is classified," Patton told a judge. And without more detail about how it works, he said, the plaintiffs cannot make a solid enough case for a judge to consider — so it should be thrown out.
The plaintiffs, who are represented by the American Civil Liberties Union, say the NSA's Upstream surveillance program violates privacy rights under the Fourth Amendment and infringes on First Amendment freedom-of-speech guarantees. But the hearing, held on the ninth floor of the towering federal courthouse in Alexandria, showed how difficult it remains for critics to challenge programs they see as intrusive but which the government insists must be kept mostly secret to protect national security.
Intelligence officials say they are scrupulous about following the laws that govern their work, and are scrutinized behind closed doors by Congress and the secret Foreign Intelligence Surveillance Court.
The NSA, headquartered at Fort Meade, also has internal controls. Its director, Adm. Michael S. Rogers, told a Senate committee this week that it monitored every keystroke of employees who had access to one sensitive program to safeguard against abuse.
Congress rewrote the law that the NSA used to collect data about huge numbers of phone calls made by Americans, requiring the agency to get more limited sets of data from the phone companies rather than scooping up all their records and sorting through them later.
But critics continue to challenge different surveillance programs, and privacy activists have been asking judges to review them in public for years.
The Wikipedia case, which was filed in Baltimore but was moved out of the state because Snowden's mother works for the federal court in Maryland, centers on the NSA's Upstream program. The program involves the collection of information as it passes through the cables that form the backbone of the Internet.
The plaintiffs say the NSA intercepts, copies and searches through Internet traffic using keywords called selectors that are associated with its targets.
The surveillance is conducted under the FISA Amendments Act of 2008, which allows the NSA to target the communications of foreigners abroad. But the plaintiffs say the agency exceeds the scope of that law with what amounts to warrantless review of private emails and online activities.
In court papers, government lawyers say the program is "uniquely valuable" for hunting terrorists and identifying other threats. The NSA may use the program to collect information only on people outside the United States, and the process is overseen by the surveillance court.
The Wikimedia Foundation, which publishes the open-access encyclopedia Wikipedia, and its fellow plaintiffs say Upstream allows the government to sweep up essentially all international Internet traffic as it passes through the United States, violating the privacy of their users and members. They want the judge to declare the program illegal.
The government argues that the case is based on assumptions about how the program works that might not be accurate. Patton said that officials had not revealed anything about how the system operates that would let the groups know that their communications had been caught up in the dragnet.
"That is the problem with speculation," he said. "You don't understand what is actually going on."
The secrecy surrounding the NSA's activities has stymied other lawsuits.
In one case, a federal appeals court overturned a ruling against the NSA's collection of phone data in part because the plaintiffs had not demonstrated that their particular carrier was subject to the program. In a similar case, the Justice Department said this week that a court should not rely on information released under a Freedom of Information Act request that appeared to show that a particular phone company was a part of the program.
The Supreme Court weighed in on the issue in 2013, before the Snowden disclosures were publicized, ruling that without some evidence that their communications had been spied on, a group of human rights organizations could not make their case.
Justice Samuel Alito wrote that the harms the groups said they would suffer were based on "highly speculative fear."
On Friday, Judge T.S. Ellis III signaled at the outset of the hearing that he was unwilling to reopen an issue that the Supreme Court might already have put to rest, and asked the plaintiffs to show him what has changed.
"It strikes me in my occasional forays into reading the newspapers ... [that] there have been a lot of these cases around," he said.
Patrick Toomey, an attorney with the ACLU, argued that recent disclosures have shed significant new light on how the surveillance works. When combined with technical experts' analysis of the NSA's program, he said, the disclosures show that the agency must be collecting his clients' information.
Patton said that the difference between "must be" and "are" is significant.
A plaintiff concluding that the NSA "must be collecting," he said, is not enough for the judge to advance the case.