The Wikimedia Foundation, the not-for-profit behind the free online encyclopedia Wikipedia, has announced it’s suing the U.S. National Security Agency and Department of Justice over the “large-scale search and seizure of internet communications” — aka the dragnet digital surveillance programs detailed in documents released by NSA whistleblower Edward Snowden.
Wikimedia says it’s bringing the lawsuit to protect its users around the world, noting that the 2008 U.S. Foreign Intelligence Surveillance Act Amendments Act (FAA) has been used to authorize so called ‘upstream’ surveillance of online communications with the ostensible aim of capturing ‘foreign intelligence information’.
However it argues the “vast” scope of NSA dragnets is such that captured communications fall far outside this remit — with the intelligence agencies tapping into Internet infrastructure (such as high capacity cables, routers and switches directly) and sucking up data not connected to a specific intelligence target, and even gathering “entirely domestic” comms.
“This includes communications by our users and staff,” Wikimedia asserts — characterizing this overreach as a “threat” to its mission to increase access to the sum total of human knowledge, as well as a violation of fundamental U.S. constitutional rights.
It’s bringing the lawsuit along with eight other organizations, including The National Association of Criminal Defense Lawyers, Human Rights Watch and Amnesty International USA. The group is being represented by the American Civil Liberties Union (ACLU).
In a statement on its website, the ACLU adds: “Upstream surveillance flips the Constitution on its head. It allows the government to search everything first and ask questions later, making us all less free in the process. Our suit aims to stop this kind of surveillance.”
The group intends to argue that the NSA’s current practices “far exceed the already broad authority granted by the U.S. Congress through the FAA”, and violates free speech and association protections enshrined in the U.S. First Amendment, and also trample over Fourth Amendment rights which protect against unreasonable search and seizure.
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.
The suit will also challenge the NSA’s practices and the limited judicial review of those practices on the grounds that they violate Article III of the U.S. constitution. The Foreign Intelligence Surveillance Court (FISC) hears issues related to surveillance, however Wikimedia argues that FISC’s role 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.
“By tapping the backbone of the internet, the NSA is straining the backbone of democracy,” added Lila Tretikov, executive director of the Wikimedia Foundation, in a statement. “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.”
Wikimedia notes that the U.S. Supreme Court dismissed a previous challenge to the FAA back in 2013, brought by Amnesty, on the grounds that the parties involved lacked “standing” — meaning they weren’t able to show they had suffered any harm. However in this case, Wikimedia is arguing it can establish standing — given that a slide from a classified NSA presentation makes “explicit reference to Wikipedia”.
Ergo “the government specifically targeted Wikipedia and its users”. And given that Wikipedia is a free resource, written and edited by its users, the argument here is that surveillance concerns might deter readers and editors from “participating” in its project — and therefore jeopardize “the health of Wikipedia as a resource to the world”.
Privacy is a core value of the Wikimedia movement. From the beginning, Wikipedia has allowed for users to maintain private identities through the use of anonymous or pseudonymous editing. This has been reinforced by the Wikimedia Foundation’s firm commitment to protecting the privacy and data of its users through legal and technical means.
Privacy makes freedom of expression possible, sustains freedom of inquiry, and allows for freedom of information and association. Knowledge flourishes where privacy is protected.
It’s not the first time Wikimedia has publicly called out high level threats to its mission. Somewhat ironically, it last year aligned itself against a European pro-privacy legal ruling, colloquially referred to as the ‘right to be forgotten’, which requires search engines to process requests from private individuals who want information delisted from a search for their name. “Demands that we erase content can be a direct threat to our mission,” Tretikov noted then. However in this instance Wikimedia is stepping up to defend the privacy of its users.
The lawsuit follows a similar action brought by a group of pro-privacy organizations in the U.K. questioning the legality of the surveillance activities of domestic spy agency GCHQ.
Last month the Investigatory Powers Tribunal (IPT), the U.K. judicial oversight body which handles complaints relating to domestic intelligence agencies, ruled that prior to last December data-sharing activities between GCHQ and the NSA were unlawful on the grounds that they breached European human rights law. It was the first such judgement reached by the IPT in its 15 years of operation.
Despite that, the IPT deems GCHQ-NSA data-sharing processes legal since December, on the grounds that another court case brought against the U.K. spy agency allowed for “adequate signposting” of the secret policies governing how data flows between international spy agencies, and for “adequate arrangements” to ensure legal compliance.
Unlike the U.S., the U.K. does not have a single, written constitutional document — hence that group making challenges based on human rights law, including at the European level.
Last April a ruling by Europe’s top court, the European Court of Justice (ECJ), struck down specific European digital data retention powers on the grounds that they were disproportionately broad. However the U.K. government then pushed ’emergency’ surveillance legislation through the U.K. parliament to reinstate similar data-capture capabilities at a domestic level. And the U.K. government has continued to bang the drum for increased digital surveillance powers.