The Electronic Frontier Foundation, who had filed an amicus brief in support of the plaintiffs, said it was perverse to dismiss a suit for lack of proof (standing) when the surveillance program complained of was secret, and urged federal courts to tackle the serious constitutional issues that Upstream surveillance presents. The plaintiffs filed an appeal with the United States Court of Appeals for the Fourth Circuit on February 17, 2016.
On May 23, 2017, the Fourth Circuit Court of Appeals vacated the dismissal by the lower court of Wikimedia’s complaints. The Court of Appeals ruled that the Foundation’s allegations of the NSA’s Fourth Amendment violations were plausible enough to “survive a facial challenge to standing”, finding that the potential harm done by the NSA’s collection of private data was not speculative. The court thereby remanded the suit by the Foundation and ordered the District Court of Maryland to continue the proceedings. The court inversely affirmed the dismissal by Ellis of the suits by the other plaintiffs; in its finding the court noted that the non-Wikimedia plaintiffs had not made a strong enough case that their operations were affected by Upstream’s scope.