Fourth Circuit Holds Wikimedia Has Standing to Challenge Upstream Surveillance

In a major ruling handed down this morning, the Fourth Circuit has reversed a district court ruling from last year and held that Wikimedia has Article III standing, at least at the motion to dismiss stage, to challenge “upstream” collection under section 702 of the Foreign Intelligence Surveillance Act. Judge Diaz wrote the 39-page majority opinion (which also affirms that the other plaintiffs lack standing); Judge Davis concurred, but wrote separately to suggest that the other organizational plaintiffs have also alleged enough to establish Article III standing.

I hope to have more to say later about the analysis and its implications, but this is a big deal–and, at first blush, the right result, methinks. If left intact, this means we’ll finally have meaningful adversarial litigation (outside the context of a motion to suppress in a criminal case) over the legality and constitutionality of “upstream” collection. 

About the Author(s)

Steve Vladeck

Executive Editor of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).