Wikimedia Foundation v. NSA

Whether Plaintiff Wikimedia Foundation has established Article III standing to challenge the NSA's Upstream surveillance program or if the state secrets doctrine prevents further litigation on the issue.

Summary

Wikimedia challenges the constitutionality of the NSA's Upstream surveillance program, which is conducted under Section 702 of the Foreign Intelligence Surveillance Act (FISA). The case has a complicated history, similar to other lawsuits challenging Section 702. The case was initially dismissed because the court found that Wikimedia did not sufficiently allege that any of their communications were actually collected by the NSA. On appeal, the case was reinstated because the Fourth Circuit was persuaded by Wikimedia's claims that the NSA collected at least some of Wikimedia's communications. After discovery in the district court, the judge again ruled that Wikimedia could not show their communications were targeted with enough certainty to proceed with their case. The judge also found that any evidence of the program that Wikimedia could use to confirm that they were targeted was protected by the state secrets privilege. This privilege allows the government to withhold evidence that could reasonably risk national security interests. Wikimedia has again appealed to the Fourth Circuit.

Background

Upstream Surveillance under Section 702 of FISA

Section 702 of the Foreign Intelligence Surveillance Act (FISA) provides the government vast surveillance authority to collect and review foreign intelligence from non-Americans located outside the United States. The authority originates from the FISA Amendments Act of 2008 ("FAA"), codified 50 U.S.C. 1181a. The government cites this authority as the basis for routinely collecting online communications without a warrant.

The Edward Snowden disclosures described two types of surveillance the NSA conducts under Section 702. One type, "upstream" surveillance, involves collecting communications as they travel over the internet backbone between internet providers. To conduct Upstream surveillance, the NSA partners with companies like AT&T and Verizon to access the fiber optic cables that carry internet traffic, copy the communications flowing through those cables, and filter them in search of communications to or from identified selectors. The second type, "downstream" or "PRISM" surveillance, allows the NSA to collect communications directly from internet companies like Google and Facebook.

Although FISA authorizes collection of communications of foreign individuals abroad, legal experts, privacy advocates, human rights organizations, and many others claim that there is a high likelihood that the NSA also collects Americans' communications through these programs. Such collection would violate the Fourth Amendment. The prospect of government surveillance over most online communications also threatens Americans' First Amendment rights.

Standing in Clapper v. Amnesty Int'l USA

The most recent Supreme Court decision on Article III standing of plaintiffs challenging NSA surveillance is the 2013 case Clapper v. Amnesty Int'l USA.

Under Article III of the U.S. Constitution, plaintiffs must prove that they were actually injured by the defendant's allegedly unlawful conduct before a federal court can resolve the case. When individuals challenge government surveillance, they face two hurdles: first, they must persuade the court that they were actually or are very likely to be targeted for the case to proceed; later, they must establish that they were actually targeted with enough evidence for the case to go on to trial. If they cannot persuade the court of their likely targeting, the case is dismissed. If they can, but later on they do not have enough evidence to prove they were actually targeted, then the court may rule for the government without a jury trial.

In Clapper, a variety of organizations challenged FISA, claiming that they suffered the injury of imminent surveillance over privileged, international email and phone communications. Importantly, the Clapper plaintiffs did not claim they had already been subjected to NSA surveillance. They instead argued that they incurred costs by trying to avoid such surveillance under a reasonable fear that they would be targeted.

While the district court ruled for the government that the case could not go to trial, the Second Circuit reversed that decision. The appeals court ruled that the fear of being monitored was reasonable based on a "realistic understanding of the world."

The Supreme Court disagreed and held that the organizations lacked standing. In a 5-4 decision, Justice Alito wrote that the group's alleged injuries were too speculative. In particular, the plaintiffs could not prove with "certainly impending" likelihood that their communications were or would be surveilled, so the costs of their preventative measures were self-imposed and did not alone give them standing to sue. In his dissenting opinion, Justice Breyer cited EPIC's "friend of the court" brief which described the extraordinary capacity of the NSA to capture private communications under FISA.

Procedural History

Both Clapper and Wikimedia involve standing issues at the later stage of litigation, where plaintiffs must provide enough evidence to show they suffered an injury from FISA surveillance. Wikimedia's standing claim is different from the claim in Clapper in one important respect, however. Wikimedia argues its online communications with users were likely actually targeted through Upstream surveillance, not that they incurred costs trying to avoid impending surveillance.

U.S. District Court for the District of Maryland (Motion to Dismiss Stage)

On June 22, 2015, Wikimedia and eight other organizations filed their complaint challenging the legality of Upstream surveillance. The district court dismissed the claim, finding that Wikimedia lacked standing. This was at the first step of litigation, where Wikimedia needed only to persuade the court that it was likely targeted. Although Wikimedia offered substantial factual evidence supporting the breadth of Upstream internet surveillance, the court was not persuaded that Wikimedia's communications were "virtually certain[ly]" targeted. Their claims were deemed too "speculative" to establish standing, especially considering how the actual details of how the program worked were classified.

U.S. Court of Appeals for the Fourth Circuit (Motion to Dismiss Stage)

The court of appeals affirmed the dismissal of all plaintiffs besides Wikimedia, whose case the court revived. Because Wikimedia's online communications were of such a volume that they traversed every internet backbone, and the NSA had confirmed it conducted Upstream surveillance along at least one of the backbones, the court was persuaded that Wikimedia had adequately alleged that its communications had been swept up by the Upstream program.

U.S. District Court for the District of Maryland (Summary Judgment Stage)

The case proceeded to discovery after returning to the district court. Following discovery, the NSA again argued that Wikimedia lacked standing. At this late stage, Wikimedia was required to provide evidence that it was actually targeted for the case to go on to trial. In most cases, this is not a big deal for plaintiffs. The purpose of discovery is for both parties to get access to relevant documents and potential evidence that they can later use at trial to prove their case. But when the evidence that identifies who the NSA has targeted is classified, plaintiffs cannot access it.

Without direct evidence that it had been targeted, Wikimedia put forward a technical expert who explained the high likelihood that Wikimedia's communications were surveilled, based on a technically probable description of how Upstream surveillance operates. The NSA's expert could not describe how that program actually works or who it targets (in fact, he did not know this himself), but instead offered hypothetical alternatives to the Wikimedia expert's explanations. The court found that the NSA expert's hypotheticals rendered Wikimedia's claims "too speculative" to establish standing.

Additionally, the court found that the very information Wikimedia needed to prove it was targeted was classified and protected by the state secrets privilege. This privilege allows the government to keep sensitive information out of the courtroom when it could reasonably risk military or national security secrets. The court decided that even if Wikimedia could access this evidence and use it to prove they were targeted, the case nevertheless must end there. Any further litigation of its claim would risk the disclosure of national security secrets to the judge, a jury, and beyond. This risk outweighed the potential unlawfulness of Upstream surveillance, effectively closing the courthouse doors to Section 702 challenges and insulating the government from legal accountability.

EPIC's Interest

EPIC has a strong interest in protecting important First Amendment and Fourth Amendment rights, including the privacy of personal communications. EPIC has continually challenged NSA surveillance under FISA, filing an amicus brief in Smith v. Obama arguing the NSA's ongoing collection of telephone call records was an "invasion of privacy that contravene[d] the core purposes of the Fourth Amendment." EPIC also has significant interest in plaintiff standing in cases challenging FISA surveillance. EPIC's amicus brief in Clapper argued in favor of finding standing and was cited in Justice Breyer's dissent.

Section 702 of FISA establishes a regime that allows the federal government to conduct mass surveillance of online communications, including those of people in the United States, without a warrant or particularized suspicion. Upstream surveillance under Section 702 allows the NSA to collect a wide range of online communications, including emails, internet browsing content, and search engine queries, all with the assistance of major internet providers. Although Section 702 limits the scope of NSA surveillance to non-United States persons abroad, programs like Upstream enable the NSA to intercept potential communications with and among Americans, so long as one party is a foreigner abroad whose online communications are surveilled.

Wikimedia raises an existential threat to Section 702 challenges in the federal courts. The state secrets doctrine not only keeps necessary evidence out of the courtroom, but it allows the government to potentially end any legal challenge before a meritorious case can go to trial. While Clapper made it difficult for parties challenging NSA surveillance to establish standing, the state secrets doctrine makes it impossible. If the district court's opinion is affirmed, individuals will be unable to challenge Section 702 surveillance in civil cases.

Legal Documents

U.S. Court of Appeals for the Fourth Circuit, No. 20-1191 (Summary Judgment Stage)

U.S. District Court for the District of Maryland, No. 1:15-cv-662 (Summary Judgment Stage)

U.S. Court of Appeals for the Fourth Circuit, No. 15-2560 (Motion to Dismiss Stage)

U.S. District Court for the District of Maryland, No. 1:15-cv-662 (Motion to Dismiss Stage)

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