“The Supreme Court’s refusal to grant our petition strikes a blow against an individual’s right to privacy and freedom of expression—two cornerstones of our society and the building blocks of Wikipedia,” said James Buatti, legal director at the Wikimedia Foundation. “We will continue to champion everyone’s right to free knowledge, and urge Congress to take on the issue of mass surveillance as it evaluates whether to reauthorize Section 702 later this year.”

In its petition, the Wikimedia Foundation, the nonprofit that operates Wikipedia and other Wikimedia free knowledge projects, argued that its challenge should be allowed to proceed, despite the government’s sweeping invocation of “state secrets.” This privilege allows the government to withhold information in legal proceedings if disclosure would harm national security. Wikimedia sought to move forward in the case based on the wealth of public information about the breadth and operation of Upstream surveillance, including numerous official disclosures by the government itself. 

The American Civil Liberties Union, the Knight First Amendment Institute at Columbia University, and the law firm Cooley LLP represented the Wikimedia Foundation in the litigation.

Upstream surveillance is conducted under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which permits the government to intercept Americans’ international communications without a warrant, so long as it is targeting individuals located outside the U.S. for foreign intelligence purposes. Section 702 will expire later this year unless it is reauthorized by Congress.

In the course of this surveillance, both U.S. residents and individuals located outside the U.S. are impacted. The NSA copies and combs through vast amounts of internet traffic, including private data showing what millions of people around the world are browsing online, from communications with friends and family to reading and editing knowledge on Wikipedia and other Wikimedia projects. This government surveillance has had a measurable chilling effect on Wikipedia users, with research documenting a drop in traffic to Wikipedia articles on sensitive topics, following public revelations about the NSA’s mass surveillance in 2013. 

“This decision is a blow to the rule of law,” said Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University. “The government has now succeeded in insulating from public judicial review one of the most sweeping surveillance programs ever enacted. If the courts are unwilling to hear Wikimedia’s challenge, then Congress must step in to protect Americans’ privacy by reining in the NSA’s mass surveillance of the internet.” 

“The Supreme Court let secrecy prevail today, at immense cost to Americans’ privacy,” said Patrick Toomey, deputy director of the ACLU’s National Security Project. “We depend on the courts to hold the government to account, especially when it wields powerful new technologies to peer into our lives like never before. But the Supreme Court has again allowed the executive branch to hide abuses behind unjustifiable claims of secrecy. It is now up to Congress to insist on landmark reforms that will safeguard Americans in the face of the NSA's mass spying programs.”

The Wikimedia Foundation, which filed the case alongside eight other plaintiffs, sued the NSA in 2015 to protect the rights of Wikipedia readers, editors, and internet users globally. 

Lawyers representing the Wikimedia Foundation in the litigation include Patrick Toomey, Ashley Gorski, and Sarah Taitz for the American Civil Liberties Union; Alex Abdo and Jameel Jaffer for the Knight First Amendment Institute at Columbia University; and Ben Kleine, Aarti Reddy, and Maximilian Sladek de la Cal from the law firm Cooley LLP. Wikimedia v. NSA is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket. 

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

“When people’s privacy is at risk, free knowledge is at risk,” said James Buatti, senior legal manager at the Wikimedia Foundation. “The NSA’s mass surveillance is a threat to the fundamental rights to privacy and free expression for the hundreds of millions of people worldwide who rely on Wikipedia and other Wikimedia projects for reliable information.” 

Upstream surveillance is conducted under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which permits the government to intercept Americans’ international communications without a warrant so long as it is targeting individuals located outside the U.S. for foreign intelligence purposes. Section 702 will expire in 2023 unless it is reauthorized by Congress.

In the course of this surveillance, the NSA copies and combs through vast amounts of internet traffic, including private data showing what millions of people around the world are reading or writing online—whether they are accessing knowledge on Wikipedia and other Wikimedia projects, browsing the web, or communicating with family and friends. This government surveillance has had a measurable chilling effect on Wikipedia users, with research documenting a drop in traffic to Wikipedia articles on privacy-sensitive topics following public revelations about the NSA’s mass surveillance in 2013. 

“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.”

In September 2021, a divided panel of the U.S. Court of Appeals for the Fourth Circuit held that even though the Wikimedia Foundation provided public evidence that its communications with Wikipedia users around the world are subject to Upstream surveillance, the government’s assertion of the “state secrets privilege” required dismissal of the entire case. The privilege allows the government to withhold information in legal proceedings if disclosure of that information would threaten national security. The government claimed it might have sensitive information that would—at least in theory—establish a defense to the lawsuit. Over the dissent of Judge Motz, a majority of the court held that this possibility was enough to end the litigation.

Wikimedia’s petition argues that the Fourth Circuit was wrong to dismiss the lawsuit on the basis of the state secrets privilege and that the court should have, instead, excluded any secret evidence, but allowed the case to proceed.

“It is past time for the Supreme Court to rein in the government’s sweeping use of secrecy to evade accountability in the courts. Upstream surveillance is no secret, and the government’s own public disclosures are the proof,” said Patrick Toomey, deputy director of the ACLU’s National Security Project. “Every day, the NSA is siphoning Americans’ communications off the internet backbone and into its surveillance systems, violating privacy and chilling free expression. The courts can and should decide whether this warrantless digital dragnet complies with the Constitution.”

The Wikimedia Foundation, which filed the case alongside eight other plaintiffs, sued the NSA in 2015 to protect the rights of Wikipedia readers, editors, and internet users globally. The Supreme Court may consider the petition as early as October 2022. 

Lawyers representing the Wikimedia Foundation in the litigation include Patrick Toomey, Ashley Gorski, and Sarah Taitz for the American Civil Liberties Union, Alex Abdo and Jameel Jaffer for the Knight First Amendment Institute at Columbia University, and Ben Kleine, Aarti Reddy, and Maximilian Sladek de la Cal from the law firm Cooley LLP. 

Read today’s petition here.

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

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.

Read today’s opinion here.

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

That’s precisely what the federal government has increasingly said it can do in cases related to national security—under the so-called “state secret privilege.” It can violate constitutional rights, and then defeat any effort at accountability by claiming that its defense is secret—without even showing its evidence to a court behind closed doors.

The latest installment in this troubling trend involves the National Security Agency’s monitoring of Americans’ international internet communications.

Under a post-9/11 surveillance program known as “Upstream,” the NSA is systematically searching Americans’ internet communications as they enter and leave the United States. The agency sifts through these streams of data looking for “identifiers” associated with its many thousands of foreign targets—identifiers like email addresses and phone numbers. The NSA does all of this without warrants, without any individual judicial approval, and without showing that any of the people it is surveilling—including countless Americans – have done anything wrong.

This surveillance raises serious constitutional concerns, but no court has ever considered a legal challenge to it because the government has claimed that allowing a suit against Upstream surveillance to go forward would implicate “state secrets.”

Late last month, we filed a petition asking the U.S. Supreme Court to make clear that the executive branch cannot invoke state secrets to dismiss cases challenging unlawful government conduct. The petition, which we filed on behalf of the Wikimedia Foundation (the nonprofit that operates Wikipedia), explains that Upstream surveillance violates the privacy rights of Wikipedia users and Wikimedia itself. But the issue we’re asking the Supreme Court to decide has far broader implications for efforts to hold the government accountable for the most serious abuses.

Historically, the state secrets privilege was not a basis for dismissing cases. When the privilege developed in the early English and American courts, it allowed the government to withhold specific pieces of sensitive evidence. As with other privileges—like the attorney-client or priest-penitent privileges—the sensitive information was excluded, and the case would go forward without it. Sometimes the plaintiff would prevail using other available evidence, and sometimes they would lose. But they would have the chance to make their case in court.

In recent years, however, the government has invoked the state secrets privilege not as a shield but as a sword, to seek dismissal of cases even where the plaintiff can make its case using public evidence—as Wikimedia is willing to do.

In 2007, for example, an appeals court dismissed a lawsuit filed by Khaled El-Masri claiming that, in a case of mistaken identity, he had been kidnapped and tortured by the CIA. The court acknowledged the public evidence of El-Masri’s mistreatment but held that state secrets were too central to the case to allow it to go forward.

And in 2010, a different appeals court dismissed a lawsuit filed by five individuals who claimed that one of Boeing’s subsidiary companies had flown the planes carrying them to the black sites where they were tortured by the CIA.

This use of the state secrets privilege—to dismiss cases—departs from the Supreme Court’s narrow framing of the privilege. The Court decided its seminal state secrets case, United States v. Reynolds, in 1953, after three civilians died in the crash of a military plane. Their families sued and requested the flight accident report. In response, the government asserted the state secrets privilege, arguing that the report described secret military equipment.

The court acquiesced, but it emphasized that the plaintiffs could try to prove their case using other evidence. While the Supreme Court has accepted dismissal in a small set of cases involving secret espionage contracts, it has never blessed this approach for other cases, let alone ones involving allegations of serious constitutional violations.

In Wikimedia’s current lawsuit, the government has taken the maximalist approach. It has asked the courts to dismiss the case on state secrets grounds even though the government itself has released dozens of official reports, court opinions, and other documents about Upstream surveillance.

Notwithstanding this public record, the lower courts threw out the case—without ever deciding whether this sweeping surveillance is constitutional.

The petition we filed gives the Supreme Court an important opportunity to rein in these overbroad invocations of secrecy. The court should instruct lower courts not to dismiss cases when the government invokes the state secrets privilege, but rather to use the array of tools that courts have long used to adjudicate cases involving sensitive information—for example, relying on security-cleared counsel, as courts routinely do in criminal cases, or examining secret evidence behind closed doors to assess its impact on a case.

Unless the Supreme Court steps in, the state secrets privilege will continue to be a “get out of jail free” card for the government—enabling it to violate the constitution with impunity by invoking secrecy.

* * *

When did you first learn about the NSA program? And how did the Wikimedia lawsuit initially come about?

We learned about Upstream surveillance in 2013. It was one of the first programs that reporters working with documents provided by Edward Snowden revealed publicly. And we learned that it involved a far broader form of surveillance than we understood that the NSA was entitled to conduct on U.S. soil. It essentially involved the mass scanning of internet traffic going into and out of the country for communications that might be of interest to the NSA, including between U.S. persons and individuals outside the country. And it involved that collection without any warrant and not based on any level of suspicion. 

Alex Abdo

A lot of people and organizations were very concerned about it. Among them was the Wikimedia Foundation. It had a very particular reason to be concerned, which is that one of the documents released by the reporters working with the Snowden trove had a slide explaining why the NSA was interested in monitoring internet traffic, and on that slide was a picture of Wikipedia’s logo—Wikipedia is one of the Wiki sites that Wikimedia runs—making pretty clear that the NSA was interested in collecting the Wikipedia reading habits of its targets. So we ended up agreeing to file a lawsuit on Wikimedia’s behalf, challenging Upstream surveillance in an effort to protect their users from the NSA’s mass internet surveillance program.

Why was this surveillance such a problem for Wikipedia?

Wikipedia is the internet’s encyclopedia. It’s where millions of people around the globe go to learn about any number of topics. It’s our library online, and it’s been successful in part because it has allowed people to access all of this incredible information without having to ask for permission, without having to worry about being monitored by a repressive regime or its overzealous officers. Wikipedia takes the security and confidentiality of the services it provides very seriously, in the same way that the libraries of old took very seriously the list of people who checked out books, and why historically our country has been so concerned about the government acquiring information about our reading habits without a good reason. Their concern with Upstream surveillance in particular is that the NSA was short-circuiting the traditional legal requirements that protect our reading habits from government surveillance. That’s why they were concerned about it, and that’s why they decided to file a legal challenge. 

But shouldn’t the government be able to target, to some degree at least, foreign agents, terrorists, criminals, whether through the internet or otherwise? Aren’t there minimization procedures that act as checks on these kinds of tools? 

The government should be able to target foreign agents and terrorists and criminals, but Upstream surveillance and surveillance conducted under this legal authority more broadly, which is known as Section 702 of the Foreign Intelligence Surveillance Act, is not limited to targeting foreign agents, terrorists, or criminals. Under this program the NSA is allowed to target just about any foreigner abroad, even when those individuals are communicating with people in the U.S., and it can collect those communications without getting a warrant. And the result is that U.S. persons’ communications are swept into NSA databases without any prior judicial review and not based on any suspicion of wrongdoing. 

The main requirement that the NSA has to show (not to a court, but just internally) before it can target an individual for surveillance under Upstream or Section 702 more broadly, is that the would-be target is a foreign person abroad and that they might be communicating what the NSA calls “foreign intelligence information,” which is a very broadly defined concept. It basically includes anything that might relate to the foreign affairs of the United States. And because those requirements are so lax, the result is that the NSA under these programs can target essentially any foreigner abroad. That means that U.S. persons’ communications with any foreigner abroad—essentially all of our international communications— are susceptible to being captured by the NSA without a warrant and without any showing of wrongdoing. 

You would think that a program that involves such wide-scale collection at the outset would include robust protections for communications of U.S. persons that are inevitably picked up (and we know they’re inevitably picked up and in huge quantities). But there aren’t.  

Now, you would think that a program that involves such wide-scale collection at the outset would include robust protections for communications of U.S. persons that are inevitably picked up (and we know they’re inevitably picked up and in huge quantities). But there aren’t. The government is allowed to keep Americans’ communications for long periods of time. It’s allowed to keep them indefinitely if it can show that our communications also contain foreign intelligence information. It can search through them using the names and identifiers of U.S. persons, again all without a warrant. 

That’s very troubling. That’s a model for a future in which our intelligence agencies have essentially Google-like access to our communications and use of the internet. And we don’t think that’s the model that the founders had in mind when they drafted the Fourth Amendment, which was meant to limit government intrusions into personal and private spaces and requires that they be tailored to the government’s justifications. And this is not a targeted program in any meaningful sense. It’s one that involves collection on a vast scale without warrants and without any showing of wrongdoing.

You’ve mentioned some of the Fourth Amendment concerns that the case raises. What about First Amendment concerns?

The two rights are very closely connected. Privacy is a precondition of free speech. It is hard to formulate dissenting thoughts, to assemble with like-minded people who may be dissidents or critics of government policy, unless you have some modicum of privacy, and private places to formulate unorthodox beliefs and thoughts. Our concern is not just that NSA surveillance overreaches into private places, but that it will inevitably suppress dissent, and inevitably have a conforming effect on public discourse and beliefs in the country. This concern is historically rooted. The Supreme Court has for a very long time recognized the connection between these two rights. And it has placed a heavier thumb on the scale of individual privacy when there’s a real risk of official surveillance making it harder for people to dissent from official policy. That’s why we think the case is more than just about privacy rights. It’s also about free speech rights.

When the U.S. Court of Appeals for the Fourth Circuit dismissed the case this fall, it raised the issue of “state secrets privilege,” which elevates claims of secrecy over the rights of internet users. Was the court wrong to raise this? And how, if at all, do the special procedures that Congress enacted in the related Foreign Intelligence Surveillance Act, or FISA, factor in?

We do think that the court’s application of the state secrets privilege was wrong. Let me provide a little bit of context. One of the extraordinary challenges to litigating over NSA surveillance is establishing what we call “standing.” Before you can sue over a government practice, you have to show that you were injured by it. And it’s very hard to sue over a secret surveillance program because almost by definition you don’t know whether you were injured by it, even if you have very good reason to suspect that you were swept up in the surveillance, that you were a target, or maybe one of your contacts was a target. And so the courts have let very few challenges to NSA surveillance over the last 20 years go forward, essentially only those where the government has effectively confirmed that someone was the target of surveillance. 

It effectively insulates this kind of surveillance from judicial scrutiny, or at least from adversarial judicial scrutiny where you have parties on both sides represented in court. And it makes it more likely that abuses will go unnoticed.  

That’s troubling for a variety of reasons. It effectively insulates this kind of surveillance from judicial scrutiny, or at least from adversarial judicial scrutiny where you have parties on both sides represented in court. And it makes it more likely that abuses will go unnoticed, and more unlikely that the program will be subjected to the kind of scrutiny you want it subjected to, where you have fierce advocates presenting the best arguments about the problems with the program to a court. We tried to get around that problem in this case by showing that Wikimedia’s communications with its users around the globe were so voluminous and so geographically distributed that it was essentially impossible to imagine an NSA surveillance program like Upstream not capturing at least some of their communications.

At the first stage of the case, the district court disagreed with us, but the Fourth Circuit reversed and said that our complaint adequately alleges that Wikimedia’s communications have been swept up in the course of Upstream surveillance, due in large part to how many millions of users Wikipedia has all around the globe, and also, due to what we publicly know about how Upstream surveillance operates, which involves scanning of internet communications as they pass through chokepoints on the internet backbone. 

We went back to the trial court after the Fourth Circuit ruled in our favor, and this time the court required us to put forward evidence of our claims. We put forward our evidence, including a very lengthy and detailed declaration by an expert in internet networking and surveillance technology, making the same showing that we had prevailed on in the Fourth Circuit. And the district court, again, disagreed with us, and again dismissed the case. 

We again appealed, and the Fourth Circuit again agreed with us on the question of standing. The court held that we had—this time with evidence and not just based on the allegations in our complaint—shown that Wikimedia’s communications were swept up in the course of Upstream surveillance. But it held that our challenge could not be litigated without the government’s inadvertent revelation of state secrets. And it said, as a result, the case cannot go forward, even though we believe that we can make our case entirely without reliance on any secret evidence from the government. We think that the public record is sufficient to demonstrate the surveillance of Wikimedia and to show why Upstream surveillance is unconstitutional. But the Fourth Circuit said the government wouldn’t be able to present any defense without revealing state secrets, and so it dismissed the case. 

We think that’s wrong for a variety of reasons, but one of the most important is that Congress in the Foreign Intelligence Surveillance Act, which is the statute the government relies on to conduct Upstream surveillance, included a very important provision that allows courts reviewing challenges to FISA surveillance to look at classified evidence behind closed doors, without revealing it to the public. Our argument was that this provision represented Congress’s balancing of the right of people to challenge NSA surveillance and the government’s obligation to keep classified information secret. And we said that the court should rely on that procedure to review any classified evidence behind closed doors without revealing it to the public, while still ruling on our constitutional challenge to Upstream surveillance.

The court disagreed with us. It said that that procedure was available essentially only to people who the government explicitly told had been subject to NSA surveillance. But we think the court was wrong there too. This provision makes sense only if you think of it as an independent check on NSA surveillance that can be invoked by people who have that evidence that they were monitored by the NSA, even if the government doesn’t want to confirm that fact. But the court disagreed and we’re now considering next steps.

What are the next steps following this dismissal? And also isn’t there a related state secrets case now before the Supreme Court that might have some bearing on this suit?

There is. There’s a case called Fazaga before the Supreme Court. One of the main issues in that case is related to the issue in the Wikimedia case, which is whether this procedure in FISA for the review of classified evidence behind closed doors supersedes or preempts the state secrets privilege, whether it essentially represents Congress’s determination that secrets in FISA challenges should be dealt with in a particular way, rather than having cases dismissed in their entirety. And we think the answer to that is yes. But that’s a question that the Supreme Court will consider in Fazaga. And if it rules in what we think of as the right way in that case, then presumably our challenge in Wikimedia’s case will then be allowed to go forward.  So that’s what we’re hoping for. 

It is extremely difficult right now, and the recent ruling makes it even harder, to file a legal challenge against NSA surveillance, even when ... there are reasons to be very concerned about the constitutionality of these programs.  

I think one of the most important things about the Wikimedia case is what it says about the ability of our courts to publicly consider the constitutionality of NSA surveillance. It is extremely difficult right now, and the recent ruling makes it even harder, to file a legal challenge against NSA surveillance, even when—based on the plain language of the authorities that the NSA has been given—there are reasons to be very concerned about the constitutionality of these programs. It’s so difficult because the courts have erected procedural barriers to suits going forward. 

For years, the problem was you couldn’t show that you were monitored so you couldn’t demonstrate legal standing. One of the very first surveillance cases that I was involved in with my colleague Jameel Jaffer was Clapper v. Amnesty International, which involved a challenge to NSA surveillance. We represented people whose communications we thought were very likely to be swept up in NSA surveillance, including, for example, the then-head lawyer for the lead defendant in the military commissions trial in Guantánamo, the individual accused of masterminding 9/11. 

We argued that if anybody is going to be swept up in these broad surveillance programs, it is people like these, so you should allow us to challenge the constitutionality of these programs. The Supreme Court said no in a 5-4 decision. It held that we had not sufficiently demonstrated that these people were actually surveilled. Now fast track nearly 10 years, and we have been able to make that showing. The Fourth Circuit now has twice ruled that we have made the showing required to allow us to challenge a program of NSA surveillance. But now another procedural barrier has been erected, the state secrets privilege. 

The result of all of this is that NSA surveillance will likely only ever be subject to real adversarial testing in U.S. courts if and when the government decides it wants to allow those challenges to go forward. I think that's a terrible state of affairs.

Now, the government would of course say there is a court that weighs in on the constitutionality of NSA surveillance, and it’s the Foreign Intelligence Surveillance Court. And the FISC, as it’s called, does have a role in overseeing this kind of surveillance. But its role is limited, and it is involved at a stage where the issues are extraordinarily abstract. The FISC is asked once a year to approve the broad procedures for Section 702 surveillance. It is not asked to review the targeting decisions made by the government, and it is not permitted to consider constitutional challenges raised by those who might be implicated by the surveillance. That’s just not a substitute for the kind of adversarial testing that our court system relies on to get the answers right.