Wikimedia Sues the NSA

This morning, the organization behind Wikipedia, the Wikimedia Foundation, sued the NSA, the Office of the Director of National Intelligence, the Justice Department, and their respective heads in federal court in Maryland to challenge the government’s upstream collection and analysis of vast quantities of Internet communications.

The complaint (see the bottom of this post for a copy) seeks declaratory and injunctive relief against the government’s upstream collection — data collection conducted in the US by tapping directly into the cables, switches, and routers that carry Internet communications across the United States.

The lawsuit challenges the government programs on four main grounds, including an interesting Article III argument about the nature of surveillance orders in the Foreign Intelligence Surveillance Court (FISC):

  1. The programmatic surveillance orders from the FISC that allow for upstream collection are issued without a case or controversy, and thus violate Article III of the Constitution.
  2. The upstream program involves unconstitutional searches and seizures that violate the Fourth Amendment.
  3. The government’s upstream surveillance violates the First Amendment by creating an objective chill on individuals’ communications and hampering their rights to free association and expression.
  4. Upstream surveillance violates Administrative Procedure Act because it exceeds the authority granted by Section 702 of the FISA Amendments Act.

The Article III argument, as explained by Wikimedia’s General Counsel Geoff Brigham and Senior Counsel Michelle Paulson, is:

Under U.S. law, the role of the courts is to resolve “cases” or “controversies” — not to issue advisory opinions or interpret theoretical situations. In the context of upstream surveillance, FISC proceedings are not “cases.” There are no opposing parties and no actual “controversy” at stake. FISC merely reviews the legality of the government’s proposed procedures — the kind of advisory opinion that Article III was intended to restrict.”

And in the words of Wikipedia Founder Jimmy Wales and Lila Tretikov, executive director of the Wikimedia Foundation:

The harm to Wikimedia and the hundreds of millions of people who visit our websites is clear: Pervasive surveillance has a chilling effect. It stifles freedom of expression and the free exchange of knowledge that Wikimedia was designed to enable.

Joining Wikimedia in its suit are: the National Association of Criminal Defense Lawyers, Human Rights Watch, Amnesty International USA, the PEN American Center, the Global Fund for Women, The Nation, the Rutherford Institute, and the Washington Office on Latin America.

You can find the full complaint below.

Wikimedia v. NSA Complaint

 

About the Author(s)

Megan Graham

Former Assistant Managing Editor and Security, Privacy, and Technology Fellow at Just Security Follow her on Twitter (@meganmcgraham).