Wikimedia Blog/Drafts/Wikimedia v. NSA: Wikimedia Foundation files suit against NSA to challenge upstream mass surveillance
Today, the Wikimedia Foundation is filing suit against the National Security Agency (NSA) and the Department of Justice (DOJ) of the United States. The lawsuit challenges the NSA’s mass surveillance program, and specifically its large-scale search and seizure of internet communications — frequently referred to as “upstream” surveillance. Our aim in filing this suit is to end this mass surveillance program in order to protect the rights of our users around the world. We are joined by eight other organizations and represented by the American Civil Liberties Union (ACLU). (We will update this post with the final complaint once it has been filed.)
Privacy is the bedrock of individual freedom. It is a universal right that sustains the freedoms of expression and association. These principles enable inquiry, dialogue, and creation and are central to Wikimedia’s vision of empowering everyone to share in the sum of all human knowledge. When they are endangered, our mission is threatened. If people look over their shoulders before searching, pause before contributing to controversial articles, or refrain from sharing verifiable but unpopular information, Wikimedia and the world are poorer for it.
When the 2013 public disclosures about the NSA’s activities revealed the vast scope of their programs, the Wikimedia community was rightfully alarmed. In 2014, the Wikimedia Foundation began conversations with the ACLU about the possibility of filing suit against the NSA and other defendants on behalf of the Foundation, its staff, and its users.
Our case today challenges the NSA’s use of upstream surveillance conducted under the authority of the 2008 Foreign Intelligence Surveillance Act Amendments Act (FAA). Upstream surveillance taps the internet’s “backbone” to capture communications with “non-U.S. persons.” The FAA authorizes the collection of these communications if they fall into the broad category of “foreign intelligence information” that includes nearly any information that could be construed as relating to national security or foreign affairs. The program casts a vast net, and as a result, captures communications that are not connected to any “target,” or may be entirely domestic. This includes communications by our users and staff.
“By tapping the backbone of the internet, the NSA is straining the backbone of democracy,” said Lila Tretikov, executive director of the Wikimedia Foundation. “Wikipedia is founded on the freedoms of expression, inquiry, and information. By violating our users’ privacy, the NSA is threatening the intellectual freedom that is central to people’s ability to create and understand knowledge.”
The NSA has interpreted the FAA as offering free rein to define threats, identify targets, and monitor people, platforms, and infrastructure with little regard for probable cause or proportionality. We believe that the NSA’s current practices far exceed the already broad authority granted by the U.S. Congress through the FAA. Furthermore, we believe that these practices violate the U.S. Constitution’s First Amendment, which protects freedom of speech and association, and the Fourth Amendment, which protects against unreasonable search and seizure.
Additionally, we believe that the NSA’s practices and limited judicial review of those practices violate Article III of the U.S. Constitution. A specialized court, the Foreign Intelligence Surveillance Court (FISC), hears issues related to foreign intelligence requests, including surveillance. Under U.S. law, the role of the courts is to resolve “cases” or “controversies” — not to issue advisory opinions or interpret theoretical situations. In the context of upstream surveillance, FISC proceedings are not “cases.” There are no opposing parties and no actual “controversy” at stake. FISC merely reviews the legality of the government’s proposed procedures — the kind of advisory opinion that Article III was intended to restrict.
In 2013, the U.S. Supreme Court dismissed a previous challenge to the FAA, Amnesty v. Clapper, because the parties in that case were found to lack “standing.” Standing is an important legal concept that requires a party to show that they’ve suffered some kind of harm in order to file a lawsuit. The 2013 mass surveillance disclosures included a slide from a classified NSA presentation that made explicit reference to Wikipedia, using our global trademark. Because these disclosures revealed that the government specifically targeted Wikipedia and its users, we believe we have more than sufficient evidence to establish standing.
Wikipedia is the largest collaborative free knowledge resource in human history. It represents what we can achieve when we are open to possibility and unburdened by fear. Over the past fourteen years, Wikimedians have written more than 34 million articles in 288 different languages. Every month, this knowledge is accessed by nearly half a billion people from almost every country on earth. This dedicated global community of users is united by their passion for knowledge, their commitment to inquiry, and their dedication to the privacy and expression that makes Wikipedia possible. We file today on their behalf.
For more information, please see our op-ed, Stop Spying on Wikipedia Users, by Wikipedia founder Jimmy Wales, and Wikimedia Foundation executive director Lila Tretikov, in the March 10 edition of The New York Times.
*The Wikimedia Foundation and its co-plaintiffs are being represented by the American Civil Liberties Union (ACLU) in this suit. We would like to thank them, in particular Patrick Toomey, Ashley Gorski, and Daniel Kahn Gillmor for their work and dedication throughout this process.
-  Other defendants include: Michael Rogers, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service; Office of the Director of National Intelligence; James Clapper, in his official capacity as Director of National Intelligence; and Eric Holder, in his official capacity as Attorney General of the United States.
-  Today, we’re proud to bring this lawsuit alongside a coalition of organizations from across the ideological spectrum, including The National Association of Criminal Defense Lawyers, Human Rights Watch, Amnesty International USA, Pen American Center, Global Fund for Women, The Nation Magazine, The Rutherford Institute, and Washington Office on Latin America. We believe the wide variety of perspectives represented in this lawsuit demonstrates that the defense of privacy and freedom of expression and association is not defined by partisanship or ideology.
-  To read more about our opposition to mass government surveillance, please see our previous blog posts on PRISM, opposing mass surveillance on the internet, and transparency in the use of surveillance.
You can find more information in this FAQ on Wikimedia.org.
This announcement was posted on the Wikimedia Blog, on Tue. March 10 at 12:40am PT.