“This surveillance will finally face badly needed scrutiny in our public courts.”

The Wikimedia Foundation has won another day in court challenging the National Security Agency over the government's so-called "Upstream" surveillance program that was disclosed by Edward Snowden.

While there's still an uphill battle for the surveillance to be declared unconstitutional, as Wikimedia alleges, the decision Tuesday by the 4th US Circuit Court of Appeals is important nevertheless. That's because a lower court had ruled that Wikimedia didn't even have a right to sue. The lower court said the foundation that runs the online encyclopedia Wikipedia could not demonstrate that the digital communications of the Wikipedia community editors and Wikipedia staff were being vacuumed up by the congressionally approved, large-scale surveillance.

The suit asserts that the surveillance violates the Fourth Amendment because the massive monitoring of the Internet backbone, authorized by a secret court known as the Foreign Intelligence Surveillance Court, does not require probable cause or individualized suspicion. The suit also alleges a First Amendment violation—that the mere existence of the program chills speech and prevents those associated with Wikimedia from communicating electronically.

Prove secret spying

Wikimedia, and a host of other groups in the lawsuit, had appealed the lower court's decision to the 4th US Circuit Court of Appeals. The Virginia-based appeals court agreed with the lower court that the National Association of Criminal Defense Lawyers, Human Rights Watch, the Rutherford Institute, and other plaintiffs could not show they were being targeted by the program that is authorized by the FISA Amendments Act. Therefore, they do not have the legal standing to litigate the case, the appeals panel concluded.

But in regards to Wikimedia, the appeals court ruled that it has met its burden, largely because of its sheer size. Wikipedia ranks fifth in traffic after No.1 Google, YouTube, Facebook, and Baidu.

"Wikimedia has plausibly alleged that its communications travel all of the roads that a communication can take and that the NSA seizes all of the communications along at least one of those roads," the court ruled.

The government did not immediately comment on whether it would accept the outcome, appeal the decision to the Supreme Court, or ask the appeals court to reconsider.

Section 702 of the Foreign Intelligence Surveillance Act, which authorizes the Upstream program and other snooping activities, expires December 31. The administration of President Donald Trump is asking Congress to renew Section 702.

Patrick Toomey, an American Civil Liberties Union attorney who argued Wikimedia's appeal in December, said the following:

This is an important victory for the rule of law. The NSA has secretly spied on Americans' Internet communications for years, but now this surveillance will finally face badly needed scrutiny in our public courts. We look forward to arguing this case on the merits.

No trial date has been set.