Wikimedia v. NSA: Standing and the Fight for Free Speech and Privacy

On March 10, 2015, represented by the ACLU, the Wikimedia Foundation and eight co-plaintiffs filed suit against the NSA, the Justice Department, and others, over the mass search and seizure of internet communications using “upstream” surveillance. Among other claims, our suit poses First and Fourth Amendment challenges to the NSA’s interpretation of Section 702 of the FISA Amendments Act of 2008.

We have spoken publicly about our opposition to mass surveillance on multiple occasions. Given the breadth of NSA surveillance, and its likely chilling impact on our projects and users, we have chosen to do more. This lawsuit presented us with an opportunity to further address those concerns and challenge this unconstitutional and invasive practice, both through the courtroom and in the public discussion. We began conversations with the ACLU about filing this lawsuit in the spring of 2014. Over the past year, we have been working with the ACLU to collect information in preparation for filing.

Some commentators have asked whether Wikimedia and the other plaintiffs in this suit have standing to pursue their claims, in light of the Supreme Court’s 2013 decision in Clapper v. Amnesty International. In Clapper, the ACLU represented plaintiffs in a facial challenge to the constitutionality of the 2008 FISA Amendments Act (FAA) — the same statute the government now invokes to justify the NSA’s upstream surveillance. By a vote of 5–4, the Supreme Court held that the plaintiffs in that case lacked standing to challenge the constitutionality of the FAA. Specifically, the Court reasoned that the plaintiffs had not shown that they had been injured by FAA surveillance, because they couldn’t establish a sufficient likelihood that their communications were being monitored under the statute. The plaintiffs couldn’t make that showing, because the government had refused to disclose, even in the most general terms, how the statute was being used.

As we explained during our Reddit AMA with the ACLU, we think Clapper was wrongly decided, but more importantly, it doesn’t foreclose our new case for a few reasons. First, we know much more about the government’s surveillance practices now than we did when Clapper was argued and decided. (It was argued in the fall of 2012 and decided in February 2013, just a few months before the first Snowden revelations began to appear in the Guardian and Washington Post.) Second, the government itself has now acknowledged and confirmed many of the key facts about the NSA’s upstream surveillance, including the fact that it conducts suspicionless searches of the contents of communications for information “about” its targets. These facts fundamentally change the standing equation: now we know that the NSA isn’t surveilling only its targets, but it’s instead surveilling everyone, looking for information about those targets. Finally, the volume of the plaintiffs’ international communications is so incredibly large that there is simply no way the government could conduct upstream surveillance without sweeping up a substantial number of those communications. In short, the plaintiffs in Wikimedia v. NSA have standing because the NSA is copying and searching substantially all international text-based communications, including theirs.

The Wikimedia projects, such as Wikipedia, operate in a uniquely user-driven, global, collaborative environment. Our community is composed of volunteer editors, writers, photographers, and contributors from every country, who read and write our sites in more than 275 languages, totaling nearly 500 million visitors a month. Together, they have created more than 34 million articles for the world’s free encyclopedia, offering insight and context about the world around us.

As stewards of the Wikimedia projects, the Wikimedia Foundation strives to protect the rights of these volunteers, including their right to express themselves, and to collaborate together globally, without fear of reprisal. Many of the topics discussed on Wikimedia pages are controversial or politically sensitive. If people are afraid to read about or contribute to the collective understanding of those topics, our core mission of providing free access to knowledge to all, including Americans, is threatened. This is why freedom of association and expression are central to our organization’s values.

Mass surveillance harms not only Wikimedia readers and contributors, but the promise of the greater internet. As Georgetown law professor Julie E. Cohen observed in her defense of informational privacy, “the experience of being watched will constrain, ex ante, the acceptable spectrum of belief and behavior … [and] incline choices toward the bland and the mainstream. … The condition of no-privacy threatens not only to chill the expression of eccentric individuality, but also, gradually, to dampen the force of our aspirations to it.” Effects of mass surveillance programs are already being felt, both by our users and by others. Several polls, including one recent major Pew poll, suggest that people worldwide have modified their behavior online as a direct result of NSA surveillance programs.

According to the Obama administration’s own January 2014 Presidential Policy Directive, “[a]ll persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and all persons have legitimate privacy interests in the handling of their personal information.” We have long recognized that, under international human rights law, “no one shall be subjected to arbitrary or unlawful interference with his privacy,” and that “everyone has the right to the protection of the law against such interference.” This sentiment is recognized by findings of the President’s Review Group, which affirm that “the United States should be a leader in championing the protection by all nations of fundamental human rights, including the right of privacy, which is central to human dignity.”

American courts have a long history of recognizing the chilling effects that result from government surveillance. More than sixty years ago, Justice Douglas wrote: “[i]f the lady from Toledo can be required to disclose what she read yesterday and what she will read tomorrow, fear will take the place of freedom in the libraries, bookstores, and homes of the land.” (US v. Rumely (concurring opinion)). In her concurring opinion in US v. Jones, Justice Sotomayor recently recognized that “[a]wareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.”

Fear discourages freedom of inquiry. Dragnet oversight stifles freedom of association. Without these freedoms, we are left with banal observation, unobjectionable thinking, and conventional wisdom. This conformity is antithetical to the health and future of free knowledge, and by extension, the Wikimedia projects. Wikipedia depends on the continued existence of a vibrant, pluralistic, global online society. Under mass surveillance, this vibrancy and pluralism is at risk.

The beauty of the Wikimedia projects lies in both what they are and how they are built. They are an ever-expanding resource of information and ideas, created through open collaboration and dialogue that. Mass dragnet-like surveillance threatens that global collaboration and dialogue, and it does so without deference to the freedoms that ensure free and open access to knowledge for all.

* Special thanks to Wikimedia Foundation legal interns, Aeryn Palmer, Mehtab Khan, and Jim Buatti for their assistance with this blog post.

 

  

About the Author(s)

Geoff Brigham

General Counsel at the Wikimedia Foundation

Michelle Paulson

Senior Legal Counsel at the Wikimedia Foundation