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On Friday, a federal judge dismissed an anti-surveillance lawsuit brought by Wikimedia, ruling in favor of the National Security Agency.
In his 30 page ruling, US District Judge T.S. Ellis III found that Wikimedia and the other plaintiffs had no standing, and could not prove that they had been surveilled, largely echoing the previous 2013 Supreme Court decision in the case of Clapper v. Amnesty International .
Judge Ellis found that there is no way to definitively know if Wikimedia, which publishes Wikipedia, one of the largest sites on the Internet, is being watched.
As he wrote in his memorandum opinion:
Plaintiffs' argument is unpersuasive, as the statistical analysis on which the argument rests is incomplete and riddled with assumptions. For one thing, plaintiffs insist that Wikipedia's over one trillion annual Internet communications is significant in volume. But plaintiffs provide no context for assessing the significance of this figure. One trillion is plainly a large number, but size is always relative. For example, one trillion dollars are of enormous value, whereas one trillion grains of sand are but a small patch of beach.
...
As already discussed, although plaintiffs have alleged facts that plausibly establish that the NSA uses Upstream surveillance at some number of chokepoints, they have not alleged facts that plausibly establish that the NSA is using Upstream surveillance to copy all or substantially all communications passing through those chokepoints. In this regard, plaintiffs can only speculate, which Clapper forecloses as a basis for standing.
Since the June 2013 Snowden revelations, by and large, it has been difficult for legal challenges filed against government surveillance to advance in the courts.
(Score: 3, Insightful) by Anonymous Coward on Sunday October 25 2015, @05:06PM
This is another example of the way any system for organizing power is inherently authoritarian. The judge's ruling is 100% technically correct by the letter of the law. But, whether he intended it or not, the result is deeply unethical. Beware people who forget that rules are an imperfect tool to achieve an end, not an end themselves. A judge should exercise judgment, he chose not to.
(Score: 5, Insightful) by Anonymous Coward on Sunday October 25 2015, @05:42PM
Everyone should be able to challenge unconstitutional laws, because they hurt us all. This notion of "standing" has to go in such cases. What this does is make it nearly impossible for people to challenge the government when it abuses its power if it acted in sufficient secrecy, because it is very difficult to prove that you, specifically, had your rights violated. This is truly a disgusting and authoritarian decision on the part of the courts.
(Score: 0, Offtopic) by Francis on Sunday October 25 2015, @08:21PM
That's a deeply problematic way to view things. For example, if I wanted to see what's going on behind the scenes at Microsoft and Apple, I could sue MS on Apple's behalf and get access to all sorts of materials that I shouldn't have access to. I could also use it as a method of extorting money out of smaller companies not interested in paying legal fees for a case that a 3rd party brought to court.
The problem here is that we expect to evaluate standing prior to discovery. So, you can't find the evidence necessary to establish standing if they hide it. It's one of those technically correct, but practically ridiculous ideas that's still firmly embedded in the judiciary. It should just require a good faith belief that you've got standing to take it through discovery and if it turns out you didn't have standing, then you should pay their costs.
But, in this case it's less about the technicality and more about the fact that judges are uncomfortable finding against the government in case that leads to a terrorist attack or similar.
(Score: 4, Insightful) by Anonymous Coward on Sunday October 25 2015, @09:20PM
That's a deeply problematic way to view things.
Bullshit. Read my comment. "Everyone should be able to challenge unconstitutional laws, because they hurt us all. This notion of "standing" has to go in such cases." I speak of constitutional challenges, not petty disputes between companies; you need to separate the two things in your mind. Unconstitutional laws and practices threaten the very fabric of our society, and inherently harm us all. You should not need to be personally harmed (harmed in the way that they think matters) or prove that you were personally harmed by the government which was acting in secrecy by some unconstitutional law or policy before you can challenge it. That leads to an unjust situation where the government's abuses cannot be realistically challenged.
If that leads to countless lawsuits over the government's actions, they can remedy this by not violating the constitution in the first place.
(Score: 2) by Bot on Sunday October 25 2015, @08:21PM
To me it seems judge plugged his ears and went LALALAICANTHEARYOU.
One trillion annual internet communications.
That is 100 packets for everybody in the world and their dogs, annually, only for initiate such "communications", a kid can work this out, a judge cannot, in good faith? BS meter is honking.
PS some systems like blockchains, DHT, are not authoritarians per se, so there is some hope.
Account abandoned.
(Score: 2) by lentilla on Monday October 26 2015, @03:58AM
For example, one trillion dollars are of enormous value, whereas one trillion grains of sand are but a small patch of beach.
Nice analogy, Your Honour. Allow me: if "the Internet" were the world, Wikimedia is Europe.