Victory! Court Allows Wikimedia’s Challenge to NSA Surveillance to Go Forward

In a critical victory for privacy and the rule of law, a federal court of appeals ruled unanimously today that an ACLU challenge to NSA internet surveillance, Wikimedia v. NSA, can go forward. As the court explained, Wikimedia, the lead plaintiff in the lawsuit, persuasively argued that its communications are searched by the NSA. As a result, we’re one step closer to ensuring that secret, warrantless spying will be subject to scrutiny in the public courts.

At issue is the NSA’s “Upstream” surveillance, which involves the continuous monitoring of international internet communications. With the help of companies like AT&T and Verizon, the NSA conducts this spying by tapping directly into the internet backbone inside the United States — the physical infrastructure that carries Americans’ emails, online chats, and web browsing. The agency then copies and combs through vast quantities of the international internet traffic whizzing by. And it does all of this without a warrant. (See this comic for a more detailed explanation of how Upstream works.)

The government claims that Upstream surveillance is authorized by Section 702 of the Foreign Intelligence Surveillance Act. That law allows the NSA to engage in warrantless surveillance of Americans when they are communicating with over 106,000 so-called “targets” abroad. But no judge signs off on these targets, who need only be foreigners abroad likely to communicate “foreign intelligence information,” which is defined incredibly broadly. Targets can include people who have no connection to terrorism and are not accused of any wrongdoing whatsoever, like journalists, lawyers, and human rights researchers.

As a result, the NSA secretly vacuums up millions of communications every year. While the government recently suspended one element of this program — which collected communications about targets, not just to or from them — it continues to scour internet traffic for communications associated with its tens of thousands of targets. Moreover, the government has not disavowed the possibility of reviving “about” collection in the future. The government’s continuing surveillance under Section 702 of FISA is one of the reasons why it’s so important that our challenge to Upstream is going forward.

Three key takeaways from today’s opinion:

1. Wikimedia’s allegations that its communications are subject to Upstream surveillance are “plausible,” not “speculative.”

In October 2015, a federal district court in Maryland dismissed our suit on “standing” grounds, concluding that our clients had not plausibly alleged that their communications were monitored by the NSA. Without standing, none of the plaintiffs would have their day in court to contest Upstream on the merits.

The district court’s opinion relied heavily on the Supreme Court’s decision in a previous ACLU lawsuit, Clapper v. Amnesty International USA, another challenge to warrantless surveillance under Section 702. In February 2013, the Supreme Court dismissed that case, reasoning that the plaintiffs could only “speculate” as to whether they were subject to that surveillance. But as we explained in court, our current challenge to the NSA’s warrantless spying is very different from the last one. Among other reasons, Clapper was decided prior to the Edward Snowden revelations and extensive government disclosures about Upstream surveillance — public disclosures that make it very clear that our plaintiffs’ communications are swept up by the NSA.

The Fourth Circuit Court of Appeals agreed with us with respect to Wikimedia, in part because of the tremendous volume and distribution of Wikimedia’s international internet communications. Rejecting the district court’s analysis, the Fourth Circuit concluded that Wikimedia’s allegations were plausible, not “speculative” within the meaning of Clapper:

Wikimedia Snip 1

In other words:

Wikimedia Snip 2

2. The court wrongly dismissed the other plaintiffs’ allegations as implausible.

Despite Wikimedia’s victory, two of the three appeals court judges wrongly dismissed the other plaintiffs’ allegations as implausible. In doing so, they failed to consider all of our detailed, well-supported arguments that the NSA is copying and reviewing substantially all international text-based internet communications — including the communications of Human Rights Watch, the National Association of Criminal Defense Lawyers, The Rutherford Institute, and the other plaintiffs.

In a dissenting opinion, Senior Judge Davis succinctly explained why the majority’s “crabbed plausibility analysis” was wrong:

Wikimedia Snip 3

3. Chilling effects matter.

Not only does Upstream surveillance violate our clients’ right to privacy under the Fourth Amendment, but it also violates their First Amendment rights to freedom of expression and freedom of association. The Fourth Circuit acknowledged that Wikimedia’s allegations about First Amendment harms also provide a basis for standing:

Wikimedia Snip 4

Now more than ever, it’s essential that plaintiffs be permitted to challenge unlawful spying in court, so that our judicial system can serve as a bulwark against executive branch overreach. Congress, too, has a role to play. Section 702 is set to expire in December 2017, and the debate around reauthorization of the law is already well underway. The ACLU has called for substantial reforms to Section 702, and we’ll continue to fight to achieve them in both Congress and the courts.

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Anonymous

This case may also touch on the "Citizens United" ruling - does a handful of "corporate persons" have more representation in Congress and state legislatures than than 300,000,000 "human persons"?

Anonymous

I think a lot more of it is that it is much easier for some of the many emails of a corporation to be picked up, than the few of an individual, so standing is more clear.

Anonymous

Section 702, facilitated by the FISA Court, is essentially the equivalent of an 18th Century British "general warrant" - which the 4th Amendment was designed to prevent.

It's akin to putting the burden of proof on the 18th Century American, having to prove that the Red Coats ransacked his home and personal effects.

Real Americans absolutely hate this type of foreign tyranny which led to the Revokutionary War and War of 1812.

Gonna Happen

Unless "watchdogs" are sitting in NSA and CIA offices, there will continue to be watching and tracking of everyone. Citizens don't understand technology and how it being used against us.

They vilify any person who calls them out as traitors or electronic criminals. This is farm from the truth.

The NSA and CIA is routinely collecting your phone calls and text messages via Stingray. And they sweep almost all internet activity of every human in the US and many nations.

I'm sorry, but the "cat is out of the hat" and we can do nothing but go dark. The electronic world has become a tool to suppress beliefs not their own.

Anonymous

Giving the benefit of the doubt, there may be some well-meaning intelligence officials that honestly don't understand that "non-confrontational blacklisting" can be lethal longterm to their innocent domestic spying victims. Judges and U.S. Supreme Court justices, the real watchdogs, apparently have no clue that domestic spying can be lethal and destroy innocent livelihoods and reputations. Since the goal is not arrest or indictment, since there is no crime, the domestic spying victims have a near impossible task of proving "legal standing" to force judges to check & balance the political branches. The political branches win votes by instilling fear in voters.

During the Cold War, this type of non-confrontational blacklisting was also perpetrated by well-meaning members of the East German Stasi - they perceived themselves as protecting national security. It resulted in one of the highest death rates in Europe. Although the Stasi did perform assassinations, most of the mass casualties were from suicides - after domestic spying victims were blacklisted and systematically defamed over several years - essentially punished for the equivalent of First Amendment exercises if it happened here. The suicides were the result from the YEARS long blacklisting, employment tampering and defamation that destroyed the victim's livelihood, family and friends. East German judges did nothing.

Today the United States has taken innocent Americans blacklisted by local and state authorities, as far back as the 1980's, and after decades of defamation, uploaded innocent Americans, many without even a criminal record, onto post 9/11 terrorist watchlists. Today federal authorities, including the DOJ, have deputized local and state authorities with a gravy-train of federal tax dollars to essentially create an American Stasi at the federal, state and local levels. Since everyone is making money, nobody is blowing the whistle.

In other words, if the U.S. Supreme Court continues to look the other way, refusing to do it's duty of "judicial review" over the political branches of government - our children's generation, in the computer age, could become indoctrinated to an American Stasi far worse than the communist model during the Cold War. Even Hollywood and TV networks like CBS have glamorized an American Stasi - where search warrants are optional-when-convenient and the Stasi officials are the good guys!

The ACLU was a heroic trailblazer, warning in October of 2001, the month following 9/11, that the U.S. Department of Justice and so-called national security agencies were creating the environment for unAmerican tactics like CoinTelPro and McCarthyism - we didn't listen to their wisdom.

Anonymous

Edward R. Murrow, the father of modern American journalism that took on McCarthyism bullies in the 1950's and founding member of the CBS show "60 Minutes", had some great advice for us all:

"We cannot defend freedom abroad by destroying it at home" (our policy since 9/11)

Met

How would one file a FOIA request in order to determine whether they were subject in such a sweep? Additionally, should one determine they were subject in a sweep what recourse would individuals have to get restitution for 4th amendment abuse?

Anonymous

Disclosures by major newspapers around 2005 stated that 100% of all electronic communications were intercepted, that would include FOIA records for every citizen, every corporation, every member of Congress, every judge and every justice of the U.S. Supreme Court. Every American should be able to file a FOIA request.

Apparently there was a "splitter" device that splits and intercepts fiber-optic signals, it can't be filtered, it captures everyone's communications without a judicial warrant.

Anonymous

You could file a constitutional lawsuit for "4th Amendment injury" by contacting a constitutional attorney or the ACLU affiliate in your state, might help get the laws corrected if you win.

In criminal proceedings, throughout American history, government officials have used 4th Amendment violations to disproportionately punish or intimidate African-Americans, minority groups and unpopular groups. As a result of these criminal violations of the 4th Amendment primarily during the Jim Crow era - there are federal criminal statutes already on the books to prosecute police and other officials that violate anyone's constitutional rights, including the 4th Amendment.

Robert Jackson, former U.S. Supreme Court Justice and Nuremberg Prosecutor, had a great view why 4th Amendment violations are the worst constitutional crimes by police and other officials. It facilitates other constitutional crimes:

"Uncontrolled, search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government"

Max Reel

With no privacy, our world is in a bad future, and we will be done for.

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