RTDNA examines First Amendment concerns in mass surveillance

February 26, 2016 03:00

RTDNA and several other media organizations have filed a brief with the Fourth Circuit Court of Appeals, urging the Court to reverse a lower court decision in a case about the federal government's mass surveillance program. The media groups are concerned that in addition to the Fourth Amendment questions surrounding the program, such surveillance creates a chilling effect for journalists and sources, which has First Amendment implications.

In 2015, the Wikimedia Foundation, with help from the American Civil Liberties Union and several other organizations, filed suit against the National Security Agency and the U.S. Department of Justice, over the government's mass surveillance program. At issue is what is known as "upstream surveillance," conducted under the authority of the 2008 Foreign Intelligence Surveillance Act Amendments Act. Under the program, which was brought to wider public attention by Edward Snowden, the NSA monitors internet traffic to seek out information that might relate to national security.

Wikimedia set out to argue that because such surveillance can include information not just about the content of online communications, but about the people exchanging the information, including citizens of the United States, the program violates the Fourth Amendment, which protects people from unreasonable searches. But a U.S. District Court threw out the case, saying Wikimedia lacked standing to file the suit, because it could not prove its users had been surveilled under the program.

Wikimedia and the ACLU have filed an appeal with the Fourth Circuit, saying the lower court erred in concluding Wikimedia lacked standing to sue.

RTDNA, along with the Reporters Committee for Freedom of the Press and other groups, filed a friend of the court brief to outline the First Amendment issues in the case, and to call on the court to order the case go to trial. The brief reads in part, "This type of collection has a significant, detrimental effect on reporters and those engaged in gathering or disseminating the news. Journalists’ foreign sources, for example, may be targeted for surveillance under Section 702. As a result, the government can monitor domestic reporters’ conversations about third parties—such as those between reporters and editors discussing a confidential source—to obtain information relating to that third party, even if that party is not part of the conversation."

You can read the full brief here.