The US Court of Appeals for the Fourth Circuit upheld Wednesday the dismissal of a lawsuit filed by Wikimedia Foundation against the National Security Agency (NSA) for intercepting and searching international internet communications.

The NSA uses Upstream, a surveillance program authorized under the Foreign Intelligence Surveillance Act. NSA’s use of the program was illegally leaked in 2013 by former NSA contractor Edward Snowden. This led to multiple lawsuits filed against the NSA.

In 2015, a judge for the US District Court for the District of Maryland dismissed a lawsuit filed by the American Civil Liberties Union (ACLU) and other human rights organizations challenging surveillance by the NSA.

Wikimedia challenged the government’s use of Upstream in 2015, as it stored and reviewed some communications from the organization. Wikimedia contended that NSA’s use of Upstream violates the First and Fourth Amendments. The US Court of Appeals for the Fourth Circuit allowed the lawsuit to proceed against the NSA in 2017.

The appeals court ruled Wednesday that the lawsuit must be dismissed. The court found that Wikimedia’s evidence established a genuine issue of material fact as to standing, but the NSA’s invocation of the state secrets privilege prevented further litigation of that issue. The state secrets privilege allows the government to withhold information from discovery when that disclosure would damage national security. As the court noted, there was “simply no conceivable defense to this assertion that wouldn’t also reveal the very information that the government is trying to protect: how Upstream surveillance works and where it’s conducted.”

Thus, the court affirmed the dismissal of the case. Judge Diana Motz dissented in part stating:

My colleagues conclude that § 106(f) of the Foreign Intelligence Surveillance Act (“FISA”) does not displace the common law state secrets privilege. Two months ago, the Supreme Court granted certiorari on this very question [in Fazaga v. FBI]. I would stay this case pending the outcome of [that] case before the Supreme Court.