ACLU.org: In Federal Appeals Court for Wikimedia v. NSA: Here’s How It Went

ACLU.org: In Federal Appeals Court for Wikimedia v. NSA: Here’s How It Went by Jim Buatti & Aeryn Palmer:

Originally posted on Wikimedia’s blog.

At yesterday’s hearing, Fourth Circuit Judges Albert Diaz and Diana Gibbon Motz, and Senior Judge Andre M. Davis, asked pointed questions to both parties. The plaintiffs, including the Wikimedia Foundation, were ably represented by Patrick Toomey of the American Civil Liberties Union (ACLU). Among other things, Mr. Toomey argued that the district court had misunderstood several important technical aspects of Upstream surveillance and, as a result, had underestimated the scope and scale of the United States government’s searches of private internet communications. The government’s attorney, in turn, argued that the plaintiffs did not have standing because many of the details about Upstream surveillance remain classified and secret.

At times, the three-Judge panel seemed skeptical of the government’s arguments. At the beginning of the hearing, Senior Judge Davis asked if the government had really argued in its legal briefs that a non-human robot could sift through people’s private communications without constituting a search under the Fourth Amendment to the U.S. Constitution, which prohibits most searches and seizures conducted without a warrant. The panel also asked about the kind of additional evidence and discovery the plaintiffs would want if the district court’s dismissal was potentially reversed and remanded for further proceedings.