March 11, 2015

Yesterday, lawyers with the American Civil Liberties Union (ACLU) filed a federal lawsuit against the National Security Agency (NSA) and the Department of Justice, requesting that they halt their program of collecting any and all Internet communications between Americans and overseas correspondents as part of their effort to fight the “War on Terror.” The lawsuit, which was filed on behalf of the Wikimedia Foundation, The Nation magazine, and a host of other media plaintiffs, represents perhaps the most significant attempt to halt the NSA’s practice of monitoring emails between American journalists and sources from outside the country.

Clearly, the ACLU’s lawyers took their time getting this lawsuit ready. Wikimedia founder Jimmy Wales and executive director Lila Tretikov published an opinion essay in The New York Times to coincide with the filing, and the lawsuit’s plaintiffs run the gamut of political opinion, including the Rutherford Institute, Amnesty International USA, Human Rights Watch, and the National Association of Criminal Defense Lawyers. But why has it taken so long for this particular lawsuit to be filed? The answer is, in a word, Kafkaesque.

In fact, the ACLU filed its first lawsuit challenging the federal government’s authority to monitor Americans’ overseas email communications back in July of 2008, when then-President George W. Bush signed into law the FISA Amendments Act, which empowered government officials to read such emails. But the lawsuit was thrown out in 2013, because the plaintiffs in that case didn’t have standing. According to Roane Carey, the managing editor of The Nation magazine and one of the plaintiffs in the new lawsuit, the original plaintiffs simply couldn’t prove that they had been spied on. Why? NSA officials refused to disclose if they were reading the plaintiffs’ emails.

“We couldn’t prove we were illegally surveilled,” Carey said. “Therefore, we couldn’t have standing.”

That all changed in 2013, when Edward Snowden disclosed the extent of the NSA’s “upstream” communications surveillance program. Once Snowden came forward, Carey said, the federal government was exposed as spying on virtually every American who had emailed someone overseas – or even sent someone an email that was briefly routed to an overseas server. The ACLU’s argument, he concluded, is that almost every American has standing now.

NSA representatives did not return a request for comment on this story. But according to Carey, this lawsuit is designed to restore the rights of Americans to privacy and protection against wanton government intrusion. “A basic principle of American justice is that the government cannot get private communications from you without a warrant or reasonable suspicion to go before a judge,” he said. “And that is something that the NSA has violated.”

You can read the full text of the ACLU’s complaint here, and the public statements from the ACLU and Wikimedia can be found here and here. The ACLU has also provided a timeline of the legal history of its first lawsuit in this matter here.

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