Wikimedia Challenges NSA and DOJ Mass “Upstream” Surveillance Program

March 19th, 2015

By CHHS Research Assistant Laura Merkey

Wikimedia, the parent company of Wikipedia, in conjunction with several other groups including Amnesty International USA, the ACLU, and the Rutherford Institute, has filed a lawsuit against the U.S. National Security Agency (NSA) and the Department of Justice challenging a mass surveillance program that utilizes “upstream” surveillance.

Upstream surveillance occurs when the backbone or infrastructure of the internet is tapped in order to collect data about individuals, both within the U.S. and abroad. The NSA methodically sweeps through the internet traffic as it flows in and out of the U.S. on fiber-optic cables, searching for anything that relates to these specific, targeted individuals or groups. However, plaintiffs also noted that the NSA makes no effort to avoid communications that only reference their targets or to purge any irrelevant communications which it has seized.

The suit, which was filed in federal court in Maryland, alleges that the NSA’s use of upstream surveillance infringes upon Americans’ privacy rights and violates the First and Fourth Amendments. The legal challenges are based on the First Amendment’s protection of the freedom of speech and association and the Fourth Amendment’s protection against unreasonable search and seizure. While the Supreme Court has held that Fourth Amendment rights do not extend to non-citizens outside of the U.S., the surveillance impacts U.S. citizens everywhere as well as non-citizens lawfully present within the United States, all of whom have a settled expectation of privacy in regard to the content of their electronic communications.

The plaintiffs have voiced the concern that individuals such as journalists, foreign government officials, and victims of human rights abuses will no longer be as willing to share sensitive information with them as a result of the upstream surveillance. Wikimedia Foundation executive Lil Tretikov voiced an even broader policy concern, writing that “[b]y violating our users’ privacy, the NSA is threatening the intellectual freedom that is central to create and understand knowledge.”

These concerns are juxtaposed with the important need for NSA to collect timely, true foreign intelligence surveillance information. This is not the first case to address online surveillance and bulk data collection as it relates to the Fourth Amendment, particularly in light of Edward Snowden’s revelations of just how far government surveillance extends. However, this case is different and garnering so much attention because it deals with the content of an individual’s communications, not just the metadata, or the details of when a call was placed, to who, and for how long.  A similar lawsuit challenging NSA surveillance was rejected by the U.S. Supreme Court in 2013 in Clapper v. Amnesty International, but its probative value in predicting the outcome in this case is lessened by the fact that it was decided prior to the Snowden leaks.

The implications of this suit could be monumental. The plaintiffs are seeking the court to declare upstream surveillance unconstitutional and to issue an injunction preventing the NSA and other government agencies from continuing to use this type of surveillance, as well as to force the government to purge all data already collected using this method.

An Obama Administrator, in response to the suit, has said that “We’ve been very clear about what constitutes a valid target of electronic surveillance. The Act of innocuously updating or reading an online article does not fall into that category.” The NSA has not yet commented on the lawsuit.

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