A judge for the US District Court for the District of Maryland [official website] on Friday dismissed [opinion, PDF; ACLU press release] a lawsuit [materials] filed by the American Civil Liberties Union (ACLU) [advocacy website] and other human rights organizations challenging surveillance by the National Security Agency (NSA) [official website]. Judge TS Ellis III granted the government’s motion to dismiss, finding, “any alleged burdensome measures taken [by plaintiffs] as a result of subjective fear of surveillance are not fairly traceable to Upstream surveillance” and that common law precedent dictates that “a threatened injury must be certainly impending to constitute injury in fact and that allegations of possible future injury are not sufficient” for relief. The court modeled its opinion on the US Supreme Court’s 2013 decision in Clapper v. Amnesty International [JURIST report] that on matters of unconstitutionality surrounding intelligence gathering, the court is to be particularly rigorous.

The suit was filed [JURIST report] in March, challenging “the NSA’s “upstream” surveillance, which involves the NSA’s tapping into the Internet backbone inside the United States—the physical infrastructure that carries Americans’ online communications with each other and with the rest of the world.” The plaintiffs alleged that the surveillance system threatens free communication by directly seizing a mass amount of American exchanges while they are in transit and searching through those contacts for terrorism-biased language through the use of filters, exceeding the scope of the FISA Amendments Act of 2008 (FAA) [text, PDF] by violating both the First and Fourth Amendments [texts] to the US Constitution. This suit is one of several filed by the ACLU challenging NSA surveillance practices in response to revelations [JURIST backgrounder] by former NSA contractor Edward Snowden, who allegedly leaked classified documents, including UPSTREAM, in 2013. In July the ACLU asked the US Court of Appeals for the Second Circuit to block [JURIST report] the NSA’s collection of bulk phone records. The appeals court had ruled in May that the Patriot Act [JURIST backgrounder] did not authorize the NSA to collect millions of Americans’ phone records, but the program has continued under the USA Freedom Act [JURIST report].