Appeals Court Upholds Wikimedia’s Case Against NSA Spying Program

A three-judge appeals panel ruled unanimously to overturn an earlier dismissal of a major lawsuit against the NSA’s internet data gathering activities.

On May 23, 2017, the Fourth Circuit Court of Appeals reversed a lower court dismissal in Wikimedia Foundation, et al. v. National Security Agency, et al. The suit alleges that the National Security Agency’s “Upstream” surveillance program is in violation of the First and Fourth Amendments to the U.S. Constitution.

“This marks an important step forward in Wikimedia Foundation v. NSA, and a victory for upholding the rights of privacy and free expression for Wikimedia users,” the Wikimedia Foundation said in a press release. “We stand ready to continue this fight.”

The surveillance program known as Upstream was first revealed by rogue NSA analyst Edward Snowden in May, 2013. Under this program, the spy agency taps directly into the internet’s “backbone” at switching stations through which vast amounts of internet traffic are routed.

The lawsuit alleges NSA’s “Upstream” surveillance system violates the First and Fourth Amendments to the U.S. Constitution. The Fourth Circuit ruled those allegations had legal standing sufficient to avoid dismissal.

“To put it simply, Wikimedia has plausibly alleged that its communications travel all of the roads that a communication can take, and that the NSA seizes all of the communications along at least one of those roads,” the judges wrote.

“Thus, at least at this stage of the litigation, Wikimedia has standing to sue for a violation of the Fourth Amendment. And, because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the First Amendment."

Patrick Toomey, plaintiffs’ counsel at the ACLU, said the ruling means Upstream "will finally face badly needed scrutiny" in the courts.

The suit was filed in the United States District Court for the District of Maryland, the trial court covering the NSA’s headquarters in Fort Meade, Maryland. That court’s Judge T.S. Ellis III dismissed the suit in October, 2015, saying the plaintiffs’ argument relied on “probabilities and suppositions.”

The Fourth Circuit panel overruled Ellis, writing “there’s nothing speculative about it - the interception of Wikimedia’s communications is an actual injury that has already occurred.”

The American Civil Liberties Union (ACLU) filed the lawsuit on behalf of the Wikimedia Foundation, owner of Wikipedia, and eight other plaintiffs including The Nation magazine and Amnesty International. However, those other plaintiffs did not survive the appeals court ruling; their dismissal was upheld on a 2-1 vote.

The NSA’s authority for intelligence gathering under Upstream is derived from Section 702 of the FISA Amendments Act of 2008. This section also forms the legal basis for PRISM, an NSA program that dwarfs Upstream in the amount of data it gathers. PRISM collects data with the help of the largest internet companies in the world, including Google and Facebook.

Section 702 will expire in December 2017 unless reauthorized by Congress, and debate on the whether to continue the program is already underway, with the ACLU lobbying congress for significant reforms.

Clapper v. Amnesty International was the Supreme Court culmination of an earlier legal challenge to the FISA Amendments Act. Amnesty argued that it sustained an increase in the cost of securely communicating with its clients, who were ripe targets for government surveillance. The justices ruled 5-4 that these claims “were based too much on speculation and on a predicted chain of events that might never occur.”

That, however, was before the revelation of details of the FISA 702 surveillance program contained in documents leaked by Edward Snowden in 2013. Armed with those secrets of the inner workings of NSA surveillance, Wikimedia was able to demonstrate that its injury was clear and not speculative.