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.[21] The plaintiffs filed an appeal with the United States Court of Appeals for the Fourth Circuit on February 17, 2016.[22]

On May 23, 2017, the Fourth Circuit Court of Appeals vacated the dismissal by the lower court of Wikimedia’s complaints.[23][24] 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.[7][23] The court thereby remanded the suit by the Foundation and ordered the District Court of Maryland to continue the proceedings.[8] 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.[7][23]