| Wikimedia Foundation v. NSA | |
|---|---|
 | |
| Court | United States District Court for the District of Maryland |
| Full case name | Wikimedia Foundation, et al. v. National Security Agency, et al. |
| Defendants | National Security Agency /Central Security Service,United States Department of Justice, Adm.Michael S. 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,Daniel R. Coats in his official capacity asDirector of National Intelligence, andJefferson B. Sessions III in his official capacity asAttorney General of the United States |
| Counsel for plaintiffs | American Civil Liberties Union,Cooley LLP |
| Plaintiffs | Wikimedia Foundation,National Association of Criminal Defense Lawyers,Human Rights Watch,Amnesty International USA,PEN American Center,Global Fund for Women,The Nation,Rutherford Institute,Washington Office on Latin America |
| Citation | No. 15-2560 |
| Case history | |
| Prior actions | Dismissal of all plaintiffs' complaints by the US District Court for the District of Maryland. Dismissal appealed by the Wikimedia Foundation Affirmation of dismissal of 8 of the 9 plaintiffs' complaints (Wikimedia excluded) byUS Court of Appeals for the Fourth Circuit Dismissal of Wikimedia Foundation's allegations concurrently vacated and remanded |
| Subsequent actions | Dismissal of the Wikimedia Foundation's allegations Certiorari denied |
| Court membership | |
| Judge sitting | T. S. Ellis III[1] |
Wikimedia Foundation, et al. v. National Security Agency, et al. was a lawsuit filed by theAmerican Civil Liberties Union (ACLU) on behalf of theWikimedia Foundation and several other organizations against theNational Security Agency (NSA), theUnited States Department of Justice (DOJ), and other named individuals, allegingmass surveillance ofWikipedia users carried out by the NSA.[2][3][4] The suit claims the surveillance system, which NSA calls"Upstream", breaches theFirst Amendment to the United States Constitution, which protects freedom of speech, and theFourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures.[5]
The suit was filed in theUnited States District Court for the District of Maryland as the NSA is based inFort Meade, Maryland.[5] The suit was dismissed in October 2015 by JudgeT. S. Ellis III; this decision was appealed four months later to the Fourth Circuit Court of Appeals by the Wikimedia Foundation.[6] The Court of Appeals found that the dismissal was valid for all of the plaintiffs except the Foundation, whose allegations the court found "plausible" enough to have legal standing for the case to be remanded to the lower court.[7] In further rulings, the District Court, Court of Appeals, and U.S. Supreme Court (in declining to hear the case and invoking thestate secrets privilege), ruled for the NSA, ending the litigation.[8]
The originalplaintiffs besides the Wikimedia Foundation were theNational Association of Criminal Defense Lawyers,Human Rights Watch,Amnesty International USA, thePEN American Center, theGlobal Fund for Women,The Nation magazine,[9] theRutherford Institute, and theWashington Office on Latin America.[5][10]
Upstream surveillance was first revealed in May 2013 byEdward Snowden, a former NSA analyst.[11] A previous challenge by the ACLU,Clapper v. Amnesty International USA, failed for lack ofstanding. In the light of some of the leaks by Snowden, which included anabove Top Secret NSA slide that specifically referred toWikipedia as a target for HTTP surveillance, the Wikimedia Foundation pushed forward with a legal complaint against the NSA for violating its users' First and Fourth Amendment rights.[12]
SinceClapper, the government itself has confirmed many of the key facts about NSA's Upstream surveillance, including that it conductssuspicionless searches.[13] ACLU attorney Patrick Toomey noted the lawsuit is particularly relevant as the plaintiffs engage in "hundreds of billions of international communications" annually. Any program of Upstream surveillance must necessarily sweep up a substantial part of these communications.[13][14]
 National Security Agency surveillance |
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 Map of global NSA data collection as of 2007[update], with countries subject to the most data collection shown in red |
Programs
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On August 6, 2015, the defendants (National Security Agency,et al.) brought a motion to dismiss, arguing that the plaintiffs have not plausibly shown that they have been injured by Upstream collection of data and thus lack standing to sue. In response, theElectronic Frontier Foundation filed anamicus brief on behalf of a group of libraries and booksellers.[15] Both sides presented oral arguments at a hearing on September 25, 2015.[16]
On October 23, 2015, the District Court for the District of Maryland dismissed the suit on grounds ofstanding. US District JudgeT. S. Ellis III ruled that the plaintiffs could not plausibly prove they were subject to Upstream surveillance, echoing the 2013 decision inClapper v. Amnesty International US.[17][1] The Wikimedia Foundation said it expected toappeal the decision. The Foundation said its complaint had merit, and that there was no question that Upstream surveillance captured the communications of both its user community and the Wikimedia Foundation itself.[18] The Electronic Frontier Foundation, who had filed anamicus brief in support of the plaintiffs, said it was perverse to dismiss a suit for lack of proof (standing) when the surveillance program complained of was secret, and urged federal courts to tackle the serious constitutional issues that Upstream surveillance presents.[19] The plaintiffs filed an appeal with theUnited States Court of Appeals for the Fourth Circuit on February 17, 2016.[20]
On May 23, 2017, theFourth Circuit Court of Appeals vacated the dismissal by the lower court of Wikimedia's complaints.[21][22] The Court of Appeals ruled that the Foundation's allegations of the NSA's Fourth Amendment violations were plausible enough to "survive a facial challenge to standing", finding that the potential harm done by the NSA's collection of private data was not speculative.[6][21] The court thereby remanded the suit by the Foundation and ordered the District Court of Maryland to continue the proceedings.[7] The court inversely affirmed the dismissal by Ellis of the suits by the other plaintiffs; in its finding the court noted that the non-Wikimedia plaintiffs had not made a strong enough case that their operations were affected by Upstream's scope.[6][21]
On December 16, 2019, the District Court held that the Wikimedia Foundation did not have standing to proceed with its claims. On February 14, 2020, the Wikimedia Foundation filed a notice of appeal in this case before the Court of Appeals for the Fourth Circuit.[23] The appeal was heard in March 2021[24] and once again dismissed in September of the same year.[25]
In February 2023, theU.S. Supreme Court declined to hear the case.[8]
