ACLU’s Latest Challenge to Government Mass Surveillance: Wikimedia et al. v. NSA

The Wikimedia Foundation, the nonprofit organization that runs Wikipedia, filed suit against the NSA to stop Upstream surveillance because mass surveillance violates the privacy necessary for the free exchange of knowledge in the Wikimedia community. Plaintiffs also include the Human Rights Watch, Amnesty International, and other advocacy organizations whose activities are affected by NSA mass surveillance due to violations of privacy rights.

Upstream surveillance is the NSA’s surveillance of the Internet traffic through the Internet backbone, which is a collection of cables and switches through which domestic and foreign communications are routed. The FISA Amendments Act (FAA), signed into law by President Bush in 2008, removed the requirement for individualized surveillance orders for each individual surveillance target and method of communication. According to the original Foreign Intelligence Surveillance Act (FISA) of 1978, before the FAA, the Foreign Intelligence Surveillance Court (FISC) could only issue a surveillance order when it could find, with probable cause, from factual showings by the government, that the surveillance target is “a foreign power or an agent of a foreign power,” and that the communications facilities monitored “is being used, or is about to be used, by a foreign power or an agent of a foreign power.”

The FAA replaced the individualized surveillance orders with more generalized authorization by the Attorney General and the Director of National Intelligence to “authorize jointly, for a period of 1 year…the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” Although the text of the Act nominally only authorizes the surveillance of foreign communications, US users who may be communicating with foreigners are monitored as well. Since the Internet blurs national boundaries by routing many domestic communications internationally, and many major Internet corporations such as Google, Facebook, and Microsoft have servers located abroad, Upstream surveillance can also capture the communications between domestic users. The communications netted by this program include email, video chats, instant messages, and web pages.

Wikimedia and other plaintiffs have standing to sue because they are education, human rights, and advocacy groups with staff, users, collaborators, or clients who are abroad and likely to be targets of NSA surveillance. Therefore, the plaintiffs allege that their communications are likely to be monitored, copied, reviewed, and used by the NSA and its collaborating agencies such as the FBI and foreign agencies. According to the complaint, Wikipedia and its sister projects depend on digital privacy for the free exchange of knowledge. The open and anonymous nature of the Wikimedia community is the main reason that Wikipedia has become one of the largest collections of human knowledge in history. The monitoring of the identity and content of user edits and article access makes users more reluctant to write, read, or edit Wikipedia or participate in its discussion forums, especially when politically sensitive articles and topics are involved. A classified NSA document, leaked by Edward Snowden, specifically identified Wikipedia as an important target of NSA surveillance.

Human Rights Watch, Amnesty International, and other plaintiffs are human rights and advocacy organizations that communicate with victims of human rights violations, foreign leaders, and other politically sensitive Internet users from around the world. These foreign individuals are highly likely to be targeted by NSA surveillance. NSA’s copying, review, and usage of the communications of these organizations reduces foreign sources’ willingness to work with them. Advocacy organizations’ works are affected because they are unable to ensure attorney-client privilege for their sensitive clients. The plaintiff parties have expended significant resources in devising more secure channels of communication or traveling in person for meetings to avoid NSA surveillance.   The plaintiffs sue for declarative relief that Upstream surveillance is illegal as well as injunctive relief to stop Upstream surveillance and to purge the data already collected from their communications.

The plaintiffs claim that Upstream surveillance is a violation of the Fourth Amendment as an illegal, warrantless search and seizure. They also allege that the surveillance has a chilling effect on the freedom of expression protected by the First Amendment by depriving Internet users the ability to have anonymous speech. This suit is also brought under Article III of the Constitution because the surveillance orders are issued by FISC outside of any case or controversy. The ACLU further argues, on behalf of the plaintiffs, that the NSA implementation of Upstream surveillance exceeds the scope of foreign intelligence surveillance powers granted to the agencies by Congress.

Amnesty et al. v. Clapper was the ACLU’s previous effort to challenge the FAA. The Supreme Court ruled that the plaintiffs in Amnesty lacked standing because they could not prove that the NSA spied on them. This case was cited by Edward Snowden as one of the reasons he chose to release factual evidence of NSA surveillance programs in June 2013. Therefore, Wikimedia is less likely to face the same issue.

Upstream surveillance is only one of the NSA mass surveillance programs implemented under the authority of the FAA. Snowden also revealed the NSA PRISM program, which collects live and stored online communications, including email, video chats, images, and social networks, from large US Internet corporations such as Google, Facebook, Skype, Apple, and Microsoft. The FAA is not the only piece of legislation that government agencies such as the NSA, FBI, and DEA use to justify the monitoring and retention of Internet communications en masse. The Patriot Act is another piece of legislation key to mass surveillance. Three sections of the Patriot Act are set to expire on June 1 unless Congress renews them: Section 215 that authorizes the mass collection of phone data, Section 206 that broadened FISA to allow the surveillance of any phone line or Internet account that may be used by a surveillance target, and the “lone wolf” amendment that broadened FISA to allow for more surveillance targets. Since Congress is deeply divided on the issue of mass surveillance, it will be very interesting to watch the developments on June 1.

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