Victory for Wikimedia v. NSA

The National Spying Agency is losing more and more on legal grounds as the awareness of how damaging and illegal their mass surveillance is increases.

In a critical victory for privacy and the rule of law, a federal court of appeals ruled unanimously today that an ACLU challenge to NSA internet surveillance, Wikimedia v. NSA, can go forward. As the court explained, Wikimedia, the lead plaintiff in the lawsuit, persuasively argued that its communications are searched by the NSA. As a result, we’re one step closer to ensuring that secret, warrantless spying will be subject to scrutiny in the public courts.

At issue is the NSA’s “Upstream” surveillance, which involves the continuous monitoring of international internet communications. With the help of companies like AT&T and Verizon, the NSA conducts this spying by tapping directly into the internet backbone inside the United States — the physical infrastructure that carries Americans’ emails, online chats, and web browsing. The agency then copies and combs through vast quantities of the international internet traffic whizzing by. And it does all of this without a warrant. (See this comic for a more detailed explanation of how Upstream works.)

The government claims that Upstream surveillance is authorized by Section 702 of the Foreign Intelligence Surveillance Act. That law allows the NSA to engage in warrantless surveillance of Americans when they are communicating with over 106,000 so-called “targets” abroad. But no judge signs off on these targets, who need only be foreigners abroad likely to communicate “foreign intelligence information,” which is defined incredibly broadly. Targets can include people who have no connection to terrorism and are not accused of any wrongdoing whatsoever, like journalists, lawyers, and human rights researchers.

As a result, the NSA secretly vacuums up millions of communications every year. While the government recently suspended one element of this program — which collected communications about targets, not just to or from them — it continues to scour internet traffic for communications associated with its tens of thousands of targets. Moreover, the government has not disavowed the possibility of reviving “about” collection in the future. The government’s continuing surveillance under Section 702 of FISA is one of the reasons why it’s so important that our challenge to Upstream is going forward.

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Despite Wikimedia’s victory, two of the three appeals court judges wrongly dismissed the other plaintiffs’ allegations as implausible. In doing so, they failed to consider all of our detailed, well-supported arguments that the NSA is copying and reviewing substantially all international text-based internet communications — including the communications of Human Rights Watch, the National Association of Criminal Defense Lawyers, The Rutherford Institute, and the other plaintiffs.