Federal Appeals Court Dismisses Wikimedia's Challenge to NSA Internet Surveillance

NEW YORK — In a divided opinion, the Fourth Circuit dismissed an appeal brought by the Wikimedia Foundation, which challenges the National Security Agency’s mass interception and searching of Americans’ international internet communications. The American Civil Liberties Union, Knight First Amendment Institute at Columbia University, and the law firm Cooley LLP represent the Wikimedia Foundation in the litigation, Wikimedia Foundation v. NSA.

Although the court held that Wikimedia had provided public evidence that its communications with Wikipedia users around the world are subject to NSA surveillance, the court went on to hold that further litigation would expose sensitive information about the government’s spying activities — and that the “state secrets privilege” required dismissal of the suit. The court rejected Wikimedia’s argument that the special procedures Congress enacted in the Foreign Intelligence Surveillance Act (FISA) preempt the state secrets privilege and allow the case to go forward.

“We are extremely disappointed that the court wrongly credited the government’s sweeping secrecy claims and dismissed our client’s case,” said Patrick Toomey, senior staff attorney with the ACLU’s National Security Project. “Every day, the NSA is siphoning Americans’ communications off the internet backbone and into its spying machines, violating privacy and chilling free expression. Congress has made clear that the courts can and should decide whether this warrantless digital dragnet complies with the Constitution.”

At issue in this lawsuit is the NSA’s “Upstream” surveillance, through which the U.S. government systematically monitors Americans’ private emails, internet messages, and web communications with people overseas. With the help of companies like Verizon and AT&T, the NSA has installed surveillance devices on the high-capacity internet circuits that carry Americans’ communications in and out of the country. It searches that traffic for key terms, called “selectors,” that are associated with hundreds of thousands of targets. In the course of this surveillance, the NSA copies and combs through vast amounts of internet traffic.

“We respectfully disagree with the Fourth Circuit’s ruling. Now more than ever, it is crucial that people are able to access accurate, well-sourced information, without concern about government surveillance,” said James Buatti, senior legal manager at the Wikimedia Foundation. “In the face of extensive public evidence about NSA surveillance, the court’s reasoning elevates extreme claims of secrecy over the rights of Internet users. We call upon the United States government to rein in these harmful practices, and we will continue to advocate for the privacy and free expression rights of Wikimedia readers, contributors, and staff.”

Judge Diana Gribbon Motz, who dissented from the court’s state secrets ruling, warned that the majority’s opinion “stands for a sweeping proposition: A suit may be dismissed under the state secrets doctrine, after minimal judicial review, even when the Government premises its only defenses on far-fetched hypotheticals.”

“For years, the NSA has vacuumed up Americans’ international communications under Upstream surveillance, and to date, not a single challenge to that surveillance has been allowed to go forward,” said Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University. “The Supreme Court should make clear that NSA surveillance is not beyond the reach of our public courts.”

Wikimedia and its counsel are considering their options for further review in the courts.