
Wikimedia v. NSA - Challenge to Upstream Surveillance
What's at Stake
The ACLU is challenging the constitutionality of the NSA’s mass interception and searching of Americans’ international Internet communications. At issue is the NSA’s “Upstream” surveillance, through which the U.S. government systematically monitors private emails, messages, and other data flowing into and out of the country on the Internet’s central arteries. The ACLU’s lawsuit was brought on behalf of the Wikimedia Foundation and eight legal, human rights, and media organizations, which together engage in trillions of sensitive communications and have been harmed by Upstream surveillance.
Summary
Although the government has publicly revealed a great deal of information about Upstream surveillance, it invoked “state secrets” to have the case dismissed after years of litigation in the lower courts. In August 2022, the ACLU, Knight Institute, and Cooley LLP filed a petition urging the Supreme Court to hear the case and hold that the state secrets privilege does not permit dismissal given the extensive public evidence. The petition is currently pending before the Supreme Court.
The original plaintiffs in the lawsuit included: Wikimedia Foundation, The National Association of Criminal Defense Lawyers, Human Rights Watch, Amnesty International USA, PEN American Center, Global Fund for Women, The Nation Magazine, The Rutherford Institute, and The Washington Office on Latin America. These plaintiffs’ sensitive communications have been copied, searched, and likely retained by the NSA. Upstream surveillance hinders the plaintiffs’ ability to ensure the basic confidentiality of their communications with crucial contacts abroad – among them journalists, colleagues, clients, victims of human rights abuses, and the tens of millions of people who read and edit Wikipedia pages.
Upstream surveillance, which the government claims is authorized by the Section 702 of the FISA Amendments Act, is designed to ensnare all of Americans’ international communications, including emails, web-browsing content, and search engine queries. With the help of companies like Verizon and AT&T, the NSA has installed surveillance devices on the internet “backbone” – the network of high-capacity cables, switches, and routers across which Internet traffic travels.
The NSA intercepts and copies private communications in bulk while they are in transit, and then searches their contents using tens of thousands of keywords associated with NSA targets. These targets, chosen by intelligence analysts, are never approved by any court, and the limitations that do exist are weak and riddled with exceptions.
Under Section 702, the NSA may target any foreigner outside the United States believed likely to communicate “foreign intelligence information” – a pool of potential targets so broad that it encompasses journalists, academic researchers, corporations, aid workers, business persons, and others who are not suspected of any wrongdoing.
Through its general, indiscriminate searches and seizures of the plaintiffs’ communications, Upstream surveillance invades their Fourth Amendment right to privacy, infringes on their First Amendment rights to free expression and association, and exceeds the statutory limits of Section 702 itself. The nature of plaintiffs’ work and the law’s permissive guidelines for targeting make it likely that the NSA is also retaining and reading their communications.
The ACLU filed an earlier challenge to surveillance conducted under Section 702 – Clapper v. Amnesty – in 2008. In a 5-4 vote, the Supreme Court dismissed the case on the grounds that the plaintiffs could not prove they had been spied on. Edward Snowden has said that the ruling contributed to his decision to expose the breadth of NSA surveillance in June 2013. Among his disclosures was Upstream surveillance, the existence of which was later confirmed by the government.
After Wikimedia and its co-plaintiffs filed this challenge in 2015, the case was initially dismissed in the district court, only to be reversed in part by the Fourth Circuit court of appeals. Wikimedia was permitted to go forward and relied on the extensive public evidence about Upstream surveillance to show that some of its trillions of communications are being seized and searched by the NSA. However, the district court dismissed the case again in 2018 based on the government’s claims that further litigation was barred by the “state secrets privilege.” On appeal a second time, a divided Fourth Circuit upheld the district court’s dismissal, ruling that although Wikimedia had presented public evidence that its communications are subject to Upstream surveillance, further litigation could expose state secrets. In August 2022, Wikimedia filed a petition for certiorari with the Supreme Court.
Our clients advocate for human and civil rights, unimpeded access to knowledge, and a free press. Their work is essential to a functioning democracy. When their sensitive and privileged communications are monitored by the U.S. government, they cannot work freely and their effectiveness is curtailed – to the detriment of Americans and others around the world. In the face of the government’s claims of secrecy, the Supreme Court should make clear that NSA surveillance is not beyond the reach of our public courts.
Legal Documents
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03/10/2015
Wikimedia v. NSA - Complaint
Date Filed: 03/10/2015
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04/24/2015
Wikimedia v. NSA - Defendants' Proposed Order Re Status Conference
Date Filed: 04/24/2015
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04/24/2015
Wikimedia v. NSA - Defendants' Proposed Order Re Status Conference
Date Filed: 04/24/2015
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04/28/2015
Wikimedia v. NSA - Plaintiffs' Response to Defendants' Motion to Set a Status Conference
Date Filed: 04/28/2015
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04/28/2015
Wikimedia v. NSA - Plaintiffs' Proposed Order re: Status Conference
Date Filed: 04/28/2015
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05/14/2015
Wikimedia v. NSA - Order Directing Parties to Comply with Briefing and Argument Schedule
Date Filed: 05/14/2015
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05/27/2015
Wikimedia v. NSA - Plaintiffs' Motion to Set a Date for the Filing of Amicus Briefs
Date Filed: 05/27/2015
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05/28/2015
Wikimedia v. NSA - Order Denying Plaintiffs' Motion to Set a Date for the Filing of Amicus Briefs
Date Filed: 05/28/2015
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05/29/2015
Wikimedia v. NSA - Memo in Support of Defendants' Motion to Dismiss
Date Filed: 05/29/2015
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05/29/2015
Wikimedia v. NSA - Exhibit 4B to Defendants' Motion to Dismiss
Date Filed: 05/29/2015
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05/29/2015
Wikimedia v. NSA - Memo in Support of Defendants' Motion to Dismiss
Date Filed: 05/29/2015
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05/29/2015
Wikimedia v. NSA - Exhibit 4B to Defendants' Motion to Dismiss
Date Filed: 05/29/2015
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05/29/2015
Wikimedia v. NSA - Defendants' Exhibit II to Motion to Dismiss
Date Filed: 05/29/2015
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05/29/2015
Wikimedia v. NSA - Exhibit 4C to Defendants' Motion to Dismiss
Date Filed: 05/29/2015
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05/29/2015
Wikimedia v. NSA - Memo in Support of Defendants' Motion to Dismiss
Date Filed: 05/29/2015
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05/29/2015
Wikimedia v. NSA - Defendants' Exhibit II to Motion to Dismiss
Date Filed: 05/29/2015
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05/29/2015
Wikimedia v. NSA - Defendants' Motion to Dismiss
Date Filed: 05/29/2015
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05/29/2015
Wikimedia v. NSA - Exhibit 4C to Defendants' Motion to Dismiss
Date Filed: 05/29/2015
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05/29/2015
Wikimedia v. NSA - Defendants' Exhibit II to Motion to Dismiss
Date Filed: 05/29/2015
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05/29/2015
Wikimedia v. NSA - Exhibit 4B to Defendants' Motion to Dismiss -
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07/06/2018
Defendant's Supplemental Brief in Opposition to Plaintiff's Motion to Compel -
06/28/2018
Errata to the Defendant's Memo of Points and Authorities in Opp to Plaintiff’s Motion to Compel Discovery Responses and Deposition Testimony -
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06/28/2018
Corrected Version of Defendants’ Memorandum of Points and Authorities in Opp to Plaintiff's Motion to Compel
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsCorrected Version of Defendants’ Memorandum of Points and Authorities in Opp to Plaintiff's Motion to CompelDownload DocumentDate Filed: 06/28/2018
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06/28/2018
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05/18/2018
Plaintiff's Reply in Support of Its Motion to Compel -
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05/18/2018
Declaration of Ashley Gorski -
05/18/2018
Exhibit 1 -
05/18/2018
Exhibit 2
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsDeclaration of Ashley GorskiDownload DocumentDate Filed: 05/18/2018
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsExhibit 1Download DocumentDate Filed: 05/18/2018
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsExhibit 2Download DocumentDate Filed: 05/18/2018
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05/18/2018
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04/28/2018
Defendant's Motion in Opposition to Plaintiff's Motion to Compel Discovery Responses and Deposition Testimony -
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04/28/2018
Exhibit A -
04/28/2018
Exhibit B -
04/28/2018
Exhibit C -
04/28/2018
Exhibit D -
04/28/2018
Proposed Order
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsExhibit ADownload DocumentDate Filed: 04/28/2018
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsExhibit BDownload DocumentDate Filed: 04/28/2018
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsExhibit CDownload DocumentDate Filed: 04/28/2018
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsExhibit DDownload DocumentDate Filed: 04/28/2018
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsProposed OrderDownload DocumentDate Filed: 04/28/2018
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04/28/2018
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04/27/2018
Defendant's Notice of Lodging Classified Declaration -
04/18/2018
Plaintiff's Supplement to Motion to Compel -
03/26/2018
Government's Motion to Compel Discovery -
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03/26/2018
Government's Memo of Points and Authorities in Support of its Motion to Compel Discovery -
03/26/2018
Exhibit 1 -
03/26/2018
Exhibit 2 -
03/26/2018
Exhibit 3 -
03/26/2018
Proposed Order
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsGovernment's Memo of Points and Authorities in Support of its Motion to Compel DiscoveryDownload DocumentDate Filed: 03/26/2018
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsExhibit 1Download DocumentDate Filed: 03/26/2018
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsExhibit 2Download DocumentDate Filed: 03/26/2018
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsExhibit 3Download DocumentDate Filed: 03/26/2018
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsProposed OrderDownload DocumentDate Filed: 03/26/2018
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03/26/2018
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03/26/2018
Plaintiff's Motion to Compel Discovery Responses and Deposition Testimony -
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03/26/2018
Plaintiff's Memo of Law in Support of Its Motion to Compel -
03/26/2018
Declaration of Patrick Toomey -
03/26/2018
Exhibit 1 -
03/26/2018
Exhibits 2-30 -
03/26/2018
Proposed Order
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsPlaintiff's Memo of Law in Support of Its Motion to CompelDownload DocumentDate Filed: 03/26/2018
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsDeclaration of Patrick ToomeyDownload DocumentDate Filed: 03/26/2018
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsExhibit 1Download DocumentDate Filed: 03/26/2018
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsExhibits 2-30Download DocumentDate Filed: 03/26/2018
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsProposed OrderDownload DocumentDate Filed: 03/26/2018
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03/26/2018
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12/29/2017
Stipulated Protective Order -
10/16/2017
Defendants' Answer to Plaintiff's First Amended Complaint for Declaratory and Injunctive Relief -
10/05/2017
Order Granting 5 Months Discovery -
09/28/2017
Joint Discovery Plan -
09/27/2017
Order re. Joint Plan for Discovery on Jurisdictional Issues -
09/22/2017
Transcript of Proceedings -
09/01/2017
Plaintiff's Reply to Government's Response re. Merits Proceedings -
08/28/2017
Government's Response to Plaintiff's Brief re. Merits Proceedings -
08/11/2017
Plaintiff's Brief in Response to August 2, 2017 Order -
08/02/2017
Order Granting Motion for Status Conference -
07/31/2017
Government's Response to Plaintiff's Motion for a Status Conference -
07/07/2017
Plaintiff's Motion for a Status Conference
Date Filed: 05/29/2015
Date Filed: 07/06/2018
Date Filed: 06/28/2018
Date Filed: 05/18/2018
Date Filed: 04/28/2018
Date Filed: 04/27/2018
Date Filed: 04/18/2018
Date Filed: 03/26/2018
Date Filed: 03/26/2018
Date Filed: 12/29/2017
Date Filed: 10/16/2017
Date Filed: 10/05/2017
Date Filed: 09/28/2017
Date Filed: 09/27/2017
Date Filed: 09/22/2017
Date Filed: 09/01/2017
Date Filed: 08/28/2017
Date Filed: 08/11/2017
Date Filed: 08/02/2017
Date Filed: 07/31/2017
Date Filed: 07/07/2017
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05/29/2015
Wikimedia v. NSA - Memo in Support of Defendants' Motion to Dismiss
Date Filed: 05/29/2015
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05/29/2015
Wikimedia v. NSA - Memo in Support of Defendants' Motion to Dismiss
Date Filed: 05/29/2015
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06/22/2015
Wikimedia v. NSA - First Amended Complaint for Declaratory and Injunctive Relief
Date Filed: 06/22/2015
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06/22/2015
Wikimedia v. NSA - Order Granting Plaintiffs' Motion to Amend Complaint
Date Filed: 06/22/2015
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06/22/2015
Wikimedia v. NSA - Plaintiffs' First Amended Complaint
Date Filed: 06/22/2015
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08/06/2015
Wikimedia v. NSA - Declaration of Dr. Alan Salzberg
Date Filed: 08/06/2015
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08/06/2015
Wikimedia v. NSA - Defendants' Motion to Dismiss the First Amended Complaint
Date Filed: 08/06/2015
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07/01/2020
Wikimedia v. NSA - Joint Appendix Vol. 1-3
Date Filed: 07/01/2020
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07/01/2020
Wikimedia v. NSA - Joint Appendix Vol. 6-7
Date Filed: 07/01/2020
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07/01/2020
Wikimedia v. NSA - Plaintiff's Opening Brief
Date Filed: 07/01/2020
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07/01/2020
Wikimedia v. NSA - Joint Appendix Vol. 4-5
Date Filed: 07/01/2020
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07/08/2020
Wikimedia v. NSA - Amicus Brief of Network Engineers and Technologists
Date Filed: 07/08/2020
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07/08/2020
Wikimedia v. NSA - Amicus Brief of Americans for Prosperity Foundation, Brennan Center for Justice, EFF, Electronic Privacy Information Center, Freedomworks Foundation and Tech Freedom
Date Filed: 07/08/2020
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07/08/2020
Wikimedia v. NSA - Amicus Brief of Professor Stephen Vladeck
Date Filed: 07/08/2020
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07/08/2020
Wikimedia v. NSA - Amicus Brief of Evidence Law Professors
Date Filed: 07/08/2020
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07/08/2020
Wikimedia v. NSA - Amicus Brief of Center for Democracy & Technology and New America's Open Technology Institute
Date Filed: 07/08/2020
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08/07/2020
Wikimedia v. NSA - Defendants' Response Brief
Date Filed: 08/07/2020
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09/04/2020
Wikimedia v. NSA - Plaintiff's Reply Brief
Date Filed: 09/04/2020
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09/04/2020
Wikimedia v. NSA - Plaintiff's Reply Brief
Date Filed: 09/04/2020
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12/09/2021
Government's Response to the Petition for Rehearing En Banc -
10/29/2021
Plaintiff's Petition for Rehearing En Banc -
09/29/2021
Judgment Order -
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09/30/2022
Brennan Center for Justice, Clause 40 Foundation, Due Process Institute, Electronic Frontier Foundation, Electronic Privacy Information Center, FreedomWorks Foundation, the Project for Privacy and Surveillance Accountability, and TechFreedom -
09/29/2022
Professor Laura K. Donohue -
09/29/2022
Former Federal Judges
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsBrennan Center for Justice, Clause 40 Foundation, Due Process Institute, Electronic Frontier Foundation, Electronic Privacy Information Center, FreedomWorks Foundation, the Project for Privacy and Surveillance Accountability, and TechFreedomDownload DocumentDate Filed: 09/30/2022
Court: Appeals Court (4th Cir.)
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsProfessor Laura K. DonohueDownload DocumentDate Filed: 09/29/2022
Court: Appeals Court (4th Cir.)
Wikimedia v. NSA - Challenge to Upstream SurveillanceLegal DocumentsFormer Federal JudgesDownload DocumentDate Filed: 09/29/2022
Court: Appeals Court (4th Cir.)
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09/30/2022
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08/26/2022
Petition for Writ of Certiorari
Date Filed: 12/09/2021
Court: Appeals Court (4th Cir.)
Date Filed: 10/29/2021
Court: Appeals Court (4th Cir.)
Date Filed: 09/29/2021
Court: Appeals Court (4th Cir.)
Date Filed: 08/26/2022
Court: Appeals Court (4th Cir.)
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12/09/2021
Wikimedia v. NSA - Government's Response to the Petition for Rehearing En Banc
Date Filed: 12/09/2021
Press Releases
Wikimedia Foundation, ACLU, and Knight Institute Urge U.S. Supreme Court to Hear Challenge to NSA’s Mass Surveillance
Federal Appeals Court Dismisses Wikimedia's Challenge to NSA Internet Surveillance
Appeals Court Allows Wikimedia Challenge to NSA Internet Surveillance to Go Forward
Appeals Court to Hear Argument in ACLU Challenge to NSA Internet Surveillance
Court Dismisses ACLU Challenge to NSA Internet Surveillance