Appeals Court: Wikimedia Has Standing To Sue Government Over NSA's 'Upstream Surveillance'

The Fourth Circuit Court of Appeals revived a lawsuit that Wikimedia (Wikipedia’s parent company) started against the NSA. The previous court said that Wikimedia had no legal standing to sue the NSA because Wikimedia’s “99.9999999999% certainty” that the NSA had intercepted at least one of its trillions of internet transactions was mere “speculation.”

Wikimedia Sues The NSA (2015)

Back in 2015, Wikimedia, helped by the ACLU, sued the NSA over its “upstream surveillance,” which refers to the NSA connecting to the backbones of the internet to collect all non-encrypted and encrypted data. The encrypted data couldn’t be used without the decryption key, but everything else could be analyzed.

Up until then, Wikipedia, as well as many other popular websites, didn’t even use HTTPS encryption, so their connections could be intercepted by the NSA through this program. Beyond spying, the NSA also had the capability to inject malware in the non-encrypted traffic and infect the users visiting those websites.

Wikimedia argued in its lawsuit that this sort of mass surveillance violates the Fourth Amendment of the U.S. Constitution. As Wikipedia is now one of the main places to which people go to inform themselves on a certain subject, allowing governments to determine who reads what could lead to serious threats to people’s privacy and freedom of expression.

However, the lower court agreed with the U.S. government that the case should be dismissed on the grounds that Wikimedia had no standing and that it didn’t present enough evidence to show that the NSA was spying on its internet transactions.

Wikimedia had shown the court that there is a “99.9999999999% certainty” that the NSA was spying on its traffic, a number calculated from the documents revealed by Edward Snowden. It also showed a slide in which Wikipedia’s name was included--and the slide was describing NSA targets that used the non-encrypted HTTP protocol.

Wikimedia Case Revived

With the ACLU’s help, Wikimedia appealed the ruling, and the Fourth Circuit Court of Appeals revived Wikimedia’s case against the NSA. The court agreed with Wikimedia that because Wikipedia transactions happen over all internet backbones in the U.S., and because the NSA was spying on at least one of those backbones, then it follows that the NSA must have been spying on at least some of Wikipedia’s HTTP transactions.

The court also agreed with Wikimedia that because it has self-censored its speech and sometimes has foregone communications because of the NSA’s upstream surveillance, then it also has standing to sue the NSA over First Amendment violations, too.

However, the majority of the judges dismissed the appeals of other plaintiffs, such as the Human Rights Watch and Amnesty International, saying that there wasn’t enough evidence to show that the NSA was spying on virtually all communications in the United States.

NSA’s upstream surveillance programs are technically allowed by the Section 702 of the FISA Amendments Act, which will expire in December 2017. The ACLU has proposed significant reforms to the law to diminish the NSA’s abuses, and it’s calling on Congress to enact them.