Plaintiffs are having trouble taking down the NSA in court for a simple reason: they can't prove that the spy agency's wide-reaching surveillance programs actually targeted them. Judges in several courts — including the Supreme Court — have repeatedly ruled that it is not enough to assume that these programs were highly likely to have caught a certain organization's data in its dragnet.
The latest case to fall victim to this line of reasoning is a case brought forward by the ACLU, Wikimedia, The Nation, Amnesty International, and a few other organizations. In a court's ruling, US District Judge TS Ellis III writes that the "plaintiffs' argument is unpersuasive, as the statistical analysis on which the argument rests is incomplete and riddled with assumptions." He continues on to note that, without the proper context, it's unclear whether or not Wikipedia is large enough to have come under the NSA's policies — despite the fact that it's one of the largest sites on the internet.
Judge rules case rested on "the subjective fear of surveillance."
The judge ultimately decided that the case rested on "the subjective fear of surveillance," noting that the plaintiffs "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." He added, "In this regard, plaintiffs can only speculate." Since the 2013 Supreme Court case Clapper v. Amnesty International sided with the NSA on just those same grounds in a 5–4 decision, the US District Court also decided to follow that precedent and dismissed the case.
Unfortunately for privacy advocates, the issue raised by the courts is a tricky one to get around. Since the NSA's data — short of what's been leaked by Snowden — is confidential, the government is the only one that could prove whether or not particular data was caught in the program.
In this case, the plaintiffs argued that "The NSA’s mass surveillance violates our clients’ constitutional rights to privacy, freedom of speech, and freedom of association, and it poses a grave threat to a free internet and a free society." Since the case got caught up on this same issue of proof, however, those fundamental questions remain unanswered by the court.