Three Reasons Why You Should Care About the Fourth Circuit’s Wikimedia Ruling

At any other moment in the recent past, Tuesday’s ruling by the U.S. Court of Appeals for the Fourth Circuit in Wikimedia Foundation v. NSA would have been a much bigger deal, and would likely have received far more coverage than it’s gotten thus far. (Thanks, Obama…) In a nutshell, the Fourth Circuit held that Wikimedia does have Article III standing, at least at the motion-to-dismiss stage, to challenge the legality of “upstream” surveillance under section 702 of the Foreign Intelligence Surveillance Act (as added by the FISA Amendments Act of 2008), reversing a district court decision that had concluded to the contrary. There’s no 2017-worthy headline here; the court said nothing about the merits of Wikimedia’s case or the legality/constitutionality of “upstream” collection. But I still think there are three major reasons why anyone following U.S. national security law in general (and surveillance law in particular) should care about this ruling–which I elaborate upon them below the fold.

Reason #1: Clarifying Clapper

Folks who have studied post-September 11 civil litigation challenging U.S. counterterrorism policies are likely quite familiar with the Supreme Court’s 2013 ruling in Clapper v. Amnesty International, in which a 5-4 Court rejected the standing of a number of human rights and civil liberties groups (and other plaintiffs) to challenge the constitutionality of section 702 on its face. In his majority opinion, Justice Alito held that the plaintiffs could not establish that collection of their communications under section 702 was “certainly impending,” and so could not demonstrate an “injury-in-fact” sufficient to satisfy Article III’s case-or-controversy requirement.

Clapper was controversial when it was handed down, but it was also not quite as sweeping a ruling as was often portrayed. Of most relevance here, Clapper was about an alleged future injury, not, as in Wikimedia, a past or ongoing injury; and it arose at the summary judgment stage of the litigation–meaning that the plaintiffs had already had an opportunity, by that point, to adduce evidence tending to substantiate their claims of unlawful surveillance. In Wikimedia, in contrast, the standing issue arose at the motion-to-dismiss stage, at which point courts are supposed to assume all of the (plausible) allegations alleged in the complaint. Thus, as Judge Diaz explained for the Fourth Circuit on Tuesday, “the district court blurred the line between the distinct burdens for establishing standing at the motion-to-dismiss and summary-judgment stages of litigation. Put another way, what may perhaps be speculative at summary judgment can be plausible on a motion to dismiss.”

What this means in practice is that plaintiffs who marshal plausible (and, sometimes, less plausible) allegations of unlawful secret government programs can and will survive motions to dismiss for lack of standing notwithstanding Clapper–a point that could have ramifications far beyond challenges to upstream surveillance under section 702. Then, the focus of the litigation will shift (rightly) to the post-motion-to-dismiss stage (discovery), whether plaintiffs will actually be able to make out their claims, and whether the state secrets privilege might get in the way. That is, the merits are still a long way in the distance, but Tuesday’s ruling brings them one important step closer. And, if left intact, the ruling will effect the elimination of what had been (to me, at least) a troubling over-reading of standing doctrine to do work that it was never meant to do.

Reason #2: The Snowden Effect

On the day of the first big Snowden revelations, I wrote a post for Lawfare titled “The Verizon/Section 215 Order and the Clapper Mindset,” which wondered whether Clapper would have come out the same way after Snowden’s disclosures. As it concluded, “Justice Alito’s specific analysis aside, it’s the mindset that I just don’t get. Reasonable people can certainly disagree about the normative desirability (and, I dare say, legality) of the degree of governmental surveillance that is now underway. But can reasonable people really continue to disagree that this is the world in which we’re living?”

In addition to the technical clarification of the Clapper ruling that Wikimedia represents (described above), it also seems to be to be vindication of this idea–that, thanks to Snowden (and the uptick in government releases of de-classified materials that followed), we (and the federal courts) are now not nearly as naive about the powers and authorities that our government claims in this space–or as likely to dismiss claims such as those in this case as “speculative.” Here, there’s a direct nexus between what we learned from Snowden and the plausibility of the plaintiffs’ claims. It will be interesting to see if the same effect repeats itself in a context with a less-direct connection (e.g., a challenge to some secret use of military force). Either way, whatever you think of Edward Snowden, he had a lot to do with this ruling…

Reason #3: One (Big) Step Closer to Full Adversarial Litigation of the Legality of Upstream…

As noted above, we’re still a ways off from reaching the merits of the plaintiffs’ challenge to upstream. For starters, the government could well seek to take this ruling up to the Supreme Court (where, just to be clear, it is 8-for-8 in getting cert. granted to review adverse lower-court decisions in civil suits arising out of post-September 11 counterterrorism policies). And even if it doesn’t pursue Supreme Court review (or doesn’t obtain it), there’s still the shadow of the state secrets privilege looming over the discovery that would otherwise follow on remand. But standing had been, to date, the biggest obstacle to meaningful civil litigation challenging upstream (and the few encounters with upstream in the context of motions to suppress in criminal cases have been, to put it charitably, under-convincing in their analyses).

And just to be clear, some of the merits questions arising from upstream are quite significant (and their answers are hardly obvious), especially if the Supreme Court is not as convinced of the continuing viability of the third-party doctrine and/or the scope of the “incidental collection” exception as the FISA Court has been. Given that section 702 is set to expire on December 31, and that the re-authorization conversation is already underway, inserting meaningful judicial consideration into the mix should help to make the legislative debate more interesting–and, hopefully, help to make all of us better informed.

Credit: Patrick Smith / Getty Images 

About the Author(s)

Steve Vladeck

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