Wikipedia’s NSA law­suit heads to fed­eral ap­peals court

With rights groups, su­ing over agency’s in­ter­net snoop­ing

The Washington Times Daily - - NATION - BY AN­DREA NOBLE

The pub­lish­ers of Wikipedia and sev­eral civil rights groups will head to a fed­eral ap­peals court Thurs­day to chal­lenge a Na­tional Se­cu­rity Agency sur­veil­lance pro­gram that mines Amer­i­cans’ in­ter­net com­mu­ni­ca­tions.

A key hur­dle for the groups will be to pro­vide con­vinc­ing ev­i­dence that their emails and other com­mu­ni­ca­tions are among those col­lected in bulk by the NSA.

A lower court pre­vi­ously dis­missed the law­suit, which chal­lenges the NSA sur­veil­lance pro­gram Up­stream, on grounds that the groups were un­able to prove their com­mu­ni­ca­tions were among those in­ter­cepted and in­stead were re­ly­ing on spec­u­la­tion about how the spy­ing sys­tem is used.

Wikipedia’s par­ent or­ga­ni­za­tion, the Wikimedia Foun­da­tion, is joined in the law­suit by the Rutherford In­sti­tute, The Na­tion mag­a­zine, Amnesty In­ter­na­tional, PEN Amer­ica, Hu­man Rights Watch, the Na­tional As­so­ci­a­tion of Crim­i­nal De­fense Lawyers, Global Fund for Women, and the Wash­ing­ton Of­fice on Latin Amer­ica. The groups are be­ing rep­re­sented by the Amer­i­can Civil Lib­er­ties Union.

In briefs sub­mit­ted to the U.S. Court of Ap­peals for the 4th Cir­cuit in Rich­mond, Virginia, ACLU at­tor­neys ar­gue that, be­cause of the sheer vol­ume of in­ter­net com­mu­ni­ca­tions Wikimedia re­ceives and trans­mits ev­ery year and the broad scope of the NSA pro­gram, it’s plau­si­ble to be­lieve at least some of its com­mu­ni­ca­tions have been in­ter­cepted, copied and re­viewed by the govern­ment.

“Wikimedia’s com­mu­ni­ca­tions tra­verse ev­ery ma­jor in­ter­net cir­cuit en­ter­ing or leav­ing the United States … and Up­stream sur­veil­lance re­quires that the NSA copy and re­view all in­ter­na­tional text-based com­mu­ni­ca­tions tran­sit­ing the cir­cuits it is mon­i­tor­ing, in­clud­ing Wikimedia’s com­mu­ni­ca­tions,” ACLU at­tor­neys wrote.

“In other words, even if the NSA were con­duct­ing Up­stream sur­veil­lance on only a sin­gle cir­cuit, it would be copy­ing and re­view­ing the Wikimedia com­mu­ni­ca­tions that tra­verse that cir­cuit. But the govern­ment has ac­knowl­edged mon­i­tor­ing mul­ti­ple in­ter­net cir­cuits — mak­ing it only more cer­tain that Wikimedia’s com­mu­ni­ca­tions are be­ing copied and re­viewed.”

The NSA uses Up­stream to gather in­for­ma­tion trans­mit­ted through the net­work of ca­bles, switches, and routers that com­prise the back­bone of the in­ter­net. NSA con­trac­tor Ed­ward Snowden leaked doc­u­ments de­scrib­ing the pro­gram, but most de­tails about it re­main se­cret, mak­ing it dif­fi­cult for in­di­vid­u­als to de­ter­mine whether their emails, on­line chats, or web-brows­ing traf­fic are among those scooped up by the pro­gram.

At­tor­neys ar­gue that the in­ter­cep­tion of com­mu­ni­ca­tions in this fash­ion ex­ceeds the NSA’s au­thor­ity un­der the For­eign In­tel­li­gence Sur­veil­lance Act and vi­o­lates their clients’ First and Fourth Amend­ment rights. Fear­ful that com­mu­ni­ca­tions will be in­ter­cepted by the NSA, some of the plain­tiffs have opted to “cen­sor their own com­mu­ni­ca­tions, and in some in­stances forgo elec­tronic com­mu­ni­ca­tions al­to­gether,” the brief states.

“In­no­cent peo­ple shouldn’t have to look over their shoul­ders when us­ing the in­ter­net,” said ACLU at­tor­ney Pa­trick Toomey. “The NSA is sys­tem­at­i­cally search­ing on­line com­mu­ni­ca­tions in real-time, in­vad­ing Amer­i­cans’ pri­vacy on a mas­sive scale. This il­le­gal spy­ing un­der­mines con­sti­tu­tion­ally pro­tected pri­vacy and free speech rights.”

Govern­ment at­tor­neys have sought to raise doubts about the fac­tual ba­sis for the ACLU’s ar­gu­ments and have asked for dis­missal of the law­suit.

In a brief sub­mit­ted to the court, they ar­gue that the groups have no stand­ing be­cause they “failed to al­lege any con­crete facts to sup­port their claim that the NSA col­lects ‘sub­stan­tially all’ in­ter­na­tional elec­tronic com­mu­ni­ca­tions tran­sit­ing the United States.” The NSA does not au­to­mat­i­cally have to in­ter­cept all com­mu­ni­ca­tions tran­sit­ing through a par­tic­u­lar ca­ble and could choose to in­ter­cept com­mu­ni­ca­tions trav­el­ing only through parts of a ca­ble, they say.

“Plain­tiffs claim that to mon­i­tor ‘sub­stan­tially all’ in­ter­na­tional text-based com­mu­ni­ca­tions, the NSA need only mon­i­tor com­mu­ni­ca­tions at the choke­points, and that the NSA has in­stalled sur­veil­lance equip­ment at ‘many’ of the forty-nine choke­points for such in­ter­na­tional com­mu­ni­ca­tions,” Jus­tice De­part­ment at­tor­neys wrote. “But these facts do not per­mit a rea­son­able in­fer­ence that the NSA is com­pre­hen­sively mon­i­tor­ing all the choke­points.”

Jus­tice at­tor­neys counter that even if the court were to find Wikimedia’s claims plau­si­ble, the or­ga­ni­za­tion has failed to al­lege ac­tual in­jury to it­self as a re­sult of NSA sur­veil­lance.

“The ‘com­mu­ni­ca­tions’ Wikimedia al­leges are in­ter­cepted are mere in­ter­net ‘trans­ac­tions’ that lack the hall­marks [and pri­vacy in­ter­ests] of tra­di­tional com­mu­ni­ca­tions,” Jus­tice at­tor­neys wrote.

Ac­cord­ing to govern­ment at­tor­neys, Wikimedia’s claims that users’ pri­vacy would be in­vaded by in­ter­cep­tion of their on­line trans­ac­tions do not hold up be­cause such claims would re­quire that the govern­ment be able to iden­tify in­di­vid­ual users.

“Such an al­le­ga­tion would be dif­fi­cult to sup­port, par­tic­u­larly in light of Wikimedia’s ac­knowl­edg­ment that ‘mil­lions’ of its users are un­known even to Wikimedia,” the at­tor­neys wrote.

Ar­gu­ments will be held Thurs­day morn­ing. The panel of judges set to hear the case has not been pub­licly an­nounced.

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