In the aftermath of Edward Snowden’s revelations in 2013, a grudging acceptance was made by the Obama administration that something had to be done about a roguish surveillance complex unhinged from its foundations. The National Security Agency had overstretched its powers, to the point where it was not only conducting its standard mischief against foreign targets, but against US citizens roped into the exercise.
The NSA has been in the news again, this time with the reversal by a US appeals court of a lower tribunal’s decision that the Wikimedia Foundation has standing to object to the Upstream program in court.
The central problem to any legal challenge against dragnet surveillance has been proof – proof, that is, of violation and damage to the subject in question. This was the case in Clapper v Amnesty International, where the Supreme Court observed, almost disdainfully, that Amnesty was mounting a novel approach based on a “speculative chain of possibilities” that could not “establish that injury based on future surveillance [was] certainly impending or [was] fairly traceable to [Section 702 surveillance].”
In October 2015, the point was further tested by Wikimedia and eight other organisations, among them Human Rights Watch and Amnesty International, who faced another sceptical judicial survey.
Alleged again were points that the NSA’s interception, collection, review and storing of the communications by the groups constituted a violation…