A federal district court in Virginia will hear oral argument today in Wikimedia v. NSA, a case challenging one of the government’s most sweeping and intrusive forms of warrantless Internet spying. At issue is the NSA’s “upstream” surveillance, which involves the interception, copying, and searching of Americans’ international Internet communications en masse. Unless you’ve never used the Internet to email a friend abroad, chat with family overseas, or browse a website hosted outside the U.S., you’ve almost certainly been caught in the NSA’s unconstitutional dragnet.
By surveilling our emails and sifting through our browsing history, the NSA poses a grave threat to a free Internet and a free society. Mass surveillance makes us far less likely to communicate openly with our friends and loved ones, and it chills participation in the marketplace of ideas.
In defending its surveillance practices, the government routinely invokes the specter of terrorism, but the truth is that the NSA is monitoring all of us. Through upstream surveillance, the NSA is not simply plucking the communications of suspected terrorists, spies, or other targets. Instead, it’s copying and sifting through the contents of essentially everyone’s international communications (and even some domestic ones), looking for information about its targets. And it does all of this without a warrant.
Upstream surveillance is sweeping by design. With the help of companies like Verizon and AT&T, the NSA conducts this spying by tapping directly into the Internet backbone inside the United States — the physical infrastructure that carries Americans’ online communications. After copying virtually all of the international text-based traffic, the NSA searches this traffic for key terms, called “selectors,” that are associated with its many targets.
To use to a pre-digital era comparison: It’s as if the NSA camped out at the U.S. Postal Service’s major processing centers to open, copy, and read the contents of everyone’s international mail — all without a warrant. (This isn’t a far-fetched hypothetical. For decades, the NSA ran a program called “Project Shamrock,” in which the agency copied essentially all telegrams to and from the U.S.) If a letter contained something of interest — for example, a reference to a phone number associated with a target — the NSA would flag the letter and retain a copy for years. Of course, this surveillance would make a mockery of the Fourth Amendment’s warrant requirement: The government can’t simply open all our letters to look for potentially interesting ones. There’s no question that this would violate the Constitution, and there’s no reason to treat Americans’ private internet communications differently.
Inside the United States, the NSA conducts upstream surveillance under the purported authority of the FISA Amendments Act of 2008, a statute with significant constitutional flaws. In essence, the statute says that the NSA can engage in certain warrantless surveillance of Americans who communicate with targets abroad. It also says that the NSA can target nearly any foreigner — without suspicion of wrongdoing and without judicial review. Despite all this, upstream surveillance is so intrusive and indiscriminate that it exceeds even the broad parameters of the FISA Amendments Act.
The ACLU brought Wikimedia v. NSA on behalf of a coalition of legal, media, educational, and human rights organizations, including the Wikimedia Foundation, Amnesty International USA, The Nation magazine, PEN American Center, Human Rights Watch, the Rutherford Institute, the National Association of Criminal Defense Lawyers, Global Fund for Women, and the Washington Office on Latin America. Each of these nine plaintiffs has been deeply affected by U.S. government spying. The confidentiality of plaintiffs’ international communications is essential to their work, and upstream surveillance undermines their ability to ensure that these communications — with colleagues, journalists, witnesses, foreign government officials, victims of human rights abuses, and the tens of millions of people who read and edit Wikipedia — are indeed private.
In August, the government moved to dismiss our suit, arguing that plaintiffs lack standing to challenge upstream surveillance because they have not “plausibly” alleged that their communications are intercepted. But our case is more than plausible: The government’s own disclosures about upstream surveillance, along with media reports, show that the NSA is vacuuming up and reviewing almost all text-based communications that enter and leave the country. Wikimedia alone engages in over a trillion Internet communications each year, with individuals located in virtually every country on earth. Given the volume and geographic distribution of these communications, it’s indisputable that plaintiffs’ communications are ensnared by the NSA.
The government’s upstream surveillance of international internet communications not only violates our clients’ constitutional rights to privacy, freedom of expression, and freedom of association, but it slowly and insidiously poisons everyone’s experience online. The Internet should provide a space in which we can read, write, and explore without fear of unwarranted government scrutiny.
Blanket spying encourages a tendency toward conformity that, over time, has enormous consequences for politics, the arts, and society as a whole. While the cumulative effects of upstream surveillance may be difficult to quantify today, the erosion of core democratic values is no less real as a result.