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Washington Examiner
Restoring America
18 Feb 2023


NextImg:The Supreme Court’s chance to take on government surveillance and secrecy

The Edward Snowden revelations broke when I was serving as chairman of the House Judiciary Committee. I experienced firsthand the reality that secrecy in the service of national security is sometimes necessary in our nation’s surveillance programs. Unfortunately, I also saw that claims of secrecy can be used by our intelligence agencies to spy on Americans without warrants and in violation of the Constitution.

Today, as mass surveillance programs continue to expand and vacuum up people’s most sensitive personal information, our system for ensuring oversight is badly out of balance, especially in our courts. Now, the Supreme Court has a rare chance to redress this imbalance.

Next week, the justices will decide whether to take up a case, Wikimedia Foundation v. NSA, that raises a narrow but vital question for surveillance and the rule of law. Wikimedia asks the Supreme Court to decide whether and when the government can invoke secrecy to halt lawsuits challenging executive branch overreach.

Wikimedia operates Wikipedia, one of the most visited websites in the world. Its case involves a challenge to the U.S. government’s mass surveillance of internet communications as they enter and leave the country. Under a Foreign Intelligence Surveillance Act program called “upstream” surveillance, the National Security Agency systematically monitors international, and many domestic, communications flowing across the internet’s central arteries. This surveillance ensnares vast quantities of the public’s digital communications, such as emails, web-browsing content, and search engine queries, including some of Wikimedia’s trillions of communications with its users around the world.

To conduct this surveillance, the NSA intercepts communications in bulk while they are in transit and then searches their contents for those associated with hundreds of thousands of foreign “targets.” These targets, chosen by intelligence analysts, can include journalists, lawyers, scientists, and businesspeople abroad. The NSA keeps the communications associated with its targets for analysis and further investigation, including huge quantities of communications with Americans — all without a warrant.

In analog terms, it’s as if government agents were opening the international letters passing through a U.S. post office en masse, reading the contents, and then keeping many of those letters in their files for years. The founders would be horrified. Upstream surveillance is the digital equivalent of the reviled “general warrants” that English officials in pre-Revolutionary War America used to indiscriminately search people’s private papers and effects. Under a closely related program, the FBI used the identities of U.S. persons to conduct 3.4 million warrantless searches in NSA data in a single year. These are exactly the types of abuse that the Fourth Amendment was designed to prevent.

While upstream surveillance is controversial, it is no secret. In the past decade, the government itself has publicly disclosed a great deal of information about this surveillance. That includes opinions issued by the secret FISA Court, an exhaustive study by the Privacy and Civil Liberties Oversight Board, and reports released by the director of National Intelligence. Given these public disclosures, Wikimedia has been able to show that its trillions of communications are swept up in this surveillance.

The government has released all this information and more, publicly touting its commitment to transparency. In court, however, the government argues that upstream surveillance is too secret for Wikimedia’s case to go forward, invoking the “state secrets privilege” and claiming that any use of sensitive evidence to defend the case could hurt national security. In a split decision, a federal appeals court threw out the case citing state secrets.

But the court of appeals didn’t even review the government’s purportedly secret evidence before dismissing the case. And the Supreme Court has never allowed courts to dismiss suits on secrecy grounds when the plaintiff can make a case on the public record.

To this day, no public court has determined whether upstream surveillance complies with the Constitution. If the government can obtain dismissal here, it will have every incentive to make overstated or exaggerated claims of secrecy to close the courthouse doors on suits like Wikimedia’s — suits seeking accountability for government overreach or abuse in the name of national security.

As I’ve said over and over again, American liberty and security are not mutually exclusive, and the government must stop acting as if they are. The idea that the public cannot seek redress when the government spies on their communications without a warrant is abhorrent. This type of government secrecy is incompatible with the foundations of American democracy and corrosive to a free society. Given the grave threat this spying poses to the civil liberties of all, it’s long past time our public courts reckoned with the government’s unconstitutional surveillance of the public.

The Supreme Court’s decision on whether to take up this case will have long-lasting implications for independent oversight of the NSA, CIA, and FBI, and other intelligence agencies. Meanwhile, the public’s privacy hangs in the balance.

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Bob Goodlatte served in Congress from 1993 to 2019 and as the chairman of the House Judiciary Committee for three terms. He is a senior policy adviser at the Project for Privacy and Surveillance Accountability, which filed an amicus brief in the Wikimedia case.