Wikimedia, Amnesty International, Others Sue NSA Over Mass Surveillance

The foundation behind Wikipedia, along with several other high-profile non-profit organizations, has sued the National Security Agency challenging its “suspicionless seizure and searching of internet traffic” in the U.S., claiming that this mass data collection goes beyond what the law allows the NSA to collect and that it violates protections afforded by the Constitution and the Bill of Rights.

The complaint [PDF] was filed today in a federal court in Maryland, the Wikimedia Foundation and the other plaintiffs — Amnesty International, Human Rights Watch, PEN American Center, Global Fund for Women, the National Association of Criminal Defense Lawyers, the Rutherford Institute, the Washington Office on Latin America, and The Nation magazine — and names as defendants the NSA, its Director Admiral Michael Rodgers, the Office of the Director of National Intelligence and said Director James Clapper, the Dept. of Justice, and U.S. Attorney General Eric Holder.

The particular form of mass data collection being targeted by the suit is so-called “upstream” surveillance, which involves the NSA accessing the “backbone” of the Internet in the U.S., intercepting data as it travels between destinations online.

“In the course of this surveillance, the NSA is seizing Americans’ communications en masse while they are in transit, and it is searching the contents of substantially all international text-based communications — and many domestic communications as well — for tens of thousands of search terms,” contends the complaint.

In 1978, Congress enacted the Foreign Intelligence Surveillance Act, intended to provide a system for authorizing legal government surveillance to counter the decades of unchecked, unwarranted information-gathering by federal agencies on private citizens who were never accused or suspected of any particular crimes.

And for more than two decades, the FISA generally required the government to seek individualized orders from the Foreign Intelligence Surveillance Court, showing that a “significant purpose” of the surveillance was the gathering of foreign intelligence.

Then in 2001, President Bush created (and subsequently reauthorized) the President’s Surveillance Program for warrantless wiretapping when the government had a reasonable basis to believe that at least one party on a phone call was in some way connected to Al Qaeda.

In July 2008, the FISA Amendments Act (“FAA”) was enacted, expanding the scope of FISA, by authorizing the government to gather information on international communications without demonstrating any individualized suspicion, and on a wider variety of communications platforms.

At this point, contend the plaintiffs, the FISC stopped being used to review individual surveillance applications, just the processes of surveillance.

“The FISC’s role in overseeing the government’s surveillance under the statute consists principally of reviewing these general procedures,” reads the complaint. “The FISC never reviews or approves the government’s individual surveillance targets or the facilities it intends to monitor. Rather, when the government wishes to conduct surveillance under the statute, it must certify to the FISC that the court has approved its targeting and minimization procedures or that it will shortly submit such procedures for the FISC’s approval.”

The plaintiffs allege that this lack of direct oversight gives the government “sweeping authority to conduct warrantless surveillance of U.S. persons’ international communications.”

Even though the law prohibits the government from intentionally targeting people in the U.S., the NSA may still gather data regarding our communications with people outside our borders; and those people don’t have to be terror suspects or international fugitives.

“The statute does not require the government to make any finding — let alone demonstrate probable cause to the FISC — that its surveillance targets are foreign agents, engaged in criminal activity, or connected even remotely with terrorism,” reads the complaint. “The government may target any person for surveillance if it has a reasonable belief that she is a foreigner outside the United States who is likely to communicate ‘foreign intelligence information’ — a term that is defined so broadly as to encompass virtually any information relating to the foreign affairs of the United States.”

And even though the ostensible targets of this surveillance are foreign persons, there are nonetheless implications for Americans.

“The targets of FAA surveillance may include journalists, academic researchers, human rights defenders, aid workers, business persons, and others who are not suspected of any wrongdoing,” argue the plaintiffs. “In the course of FAA surveillance, the government may acquire the communications of U.S. citizens and residents with all these persons.”

And the government has used this mass surveillance to gather an awful lot of data about a large number of people. The complaint cites the government’s own report showing that it used the amended FISA to target 89,138 individuals, groups, or organizations for surveillance under a single court order in 2013. In 2011 alone, the government gathered 250 million online communications, without providing any info on how many of these involved U.S. citizens or residents.

The plaintiffs contend that NSA has even gone further than the already lenient law allows, claiming that the 2008 statute only specifically allows for surveillance of a target’s communication, not the reviewing or “essentially everyone’s internet communications in order to search for identifiers associated with its targets.”

“By tapping the backbone of the internet, the NSA is straining the backbone of democracy,” said 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.”

The government’s actions, argue the plaintiffs, violate their First Amendment rights to free expression, their Fourth Amendment protection against unreasonable search and seizure. Furthermore, the FISC’s lack of oversight over this surveillance allegedly runs afoul of Article III of the Constitution, which established the judicial branch of the federal government.

“Under U.S. law, the role of the courts is to resolve ‘cases” or “controversies’ — not to issue advisory opinions or interpret theoretical situations,” reads a statement from the Wikimedia Foundation. “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.”

The plaintiffs are asking the court to declare the government’s upstream data collection unlawful and to issue an injunction preventing the NSA and other agencies from continuing to surveil the plaintiffs in this manner. Finally, they seek to compel the government to purge all data already collected.