This is big news. Wikimedia Foundation, the organization behind Wikipedia, has announced that it is suing the NSA (with help from the ACLU) over its mass surveillance program. While the full lawsuit hasn’t yet been posted, the lawsuit targets the “upstream” collection under Section 702 of the FISA Amendments Act. Because this gets confusing if you’re not spending a lot of time with this, let’s break out some of the different surveillance programs:
- Section 215 of the PATRIOT Act: under this program the NSA is collecting all the phone metadata on calls in the US.
- Executive Order 12333: this is what enables the NSA to hack into pretty much anything overseas — including things like Google, Yahoo and Microsoft’s data centers.
- PRISM: Actually part of Section 702 of the FISA Amendments Act. Allows for (slightly) targeted collections of information via a court order from the FISA Court, demanding specific types of information (rather than “all” information).
- Upstream collection: Also under Section 702, but this is the program that lets the NSA tap into backbone fiber optic cables, such as from AT&T and others, and slurp up all traffic in case there’s anything “interesting” happening that it can classify as “foreign intelligence information.”
It’s the upstream collection that Wikimedia is challenging in this lawsuit, arguing (among other things) that it violates both the First and Fourth Amendments.
That upstream program is the one that was first disclosed by Mark Klein, a former AT&T technician who wandered into the EFF’s offices a decade ago with the evidence. This resulted in a lawsuit — Hepting v. AT&T — that AT&T was able to get out of thanks to Congress passing a law granting the telcos retroactive immunity for helping the NSA. The EFF has a long-running similar case against the NSA over the upstream collection — Jewel v. NSA — which recently suffered a setback, in that the judges claimed there wasn’t evidence for “standing.” That is, the plaintiffs need to be able to prove that they were spied on — which is a fairly tough barrier.
Another case that was filed on similar grounds, by Amnesty International (also with the ACLU), also lost at the Supreme Court on the question of “standing.” However, as later came out, that victory was based mostly on a false statement from Solicitor General Donald Verrilli, who had argued that if the US government made use of any of the upstream collection data in a lawsuit against someone, the government would need to reveal it to the defendants, who would then have standing to challenge it. Only later — thanks to a Senate speech from Senator Dianne Feinstein — did it come out that the DOJ regularly made use of information collected this way without ever alerting the defendants about how the information was collected.
Wikimedia thinks that it has a chance to get past this “standing” hurdle, thanks to the following NSA slide that was leaked in the Ed Snowden revelations:
The 2013 mass surveillance disclosures included a slide from a classified NSA presentation that made explicit reference to Wikipedia, using our global trademark. Because these disclosures revealed that the government specifically targeted Wikipedia and its users, we believe we have more than sufficient evidence to establish standing.
In an oped for the NY Times, Wikipedia’s Jimmy Wales explains why the organization is doing this:
The harm to Wikimedia and the hundreds of millions of people who visit our websites is clear: Pervasive surveillance has a chilling effect. It stifles freedom of expression and the free exchange of knowledge that Wikimedia was designed to enable.
During the 2011 Arab uprisings, Wikipedia users collaborated to create articles that helped educate the world about what was happening. Continuing cooperation between American and Egyptian intelligence services is well established; the director of Egypt’s main spy agency under President Abdel Fattah el-Sisi boasted in 2013 that he was “in constant contact” with the Central Intelligence Agency.
So imagine, now, a Wikipedia user in Egypt who wants to edit a page about government opposition or discuss it with fellow editors. If that user knows the N.S.A. is routinely combing through her contributions to Wikipedia, and possibly sharing information with her government, she will surely be less likely to add her knowledge or have that conversation, for fear of reprisal.
And then imagine this decision playing out in the minds of thousands of would-be contributors in other countries. That represents a loss for everyone who uses Wikipedia and the Internet — not just fellow editors, but hundreds of millions of readers in the United States and around the world.
Given how much difficulty other cases have had in establishing standing, it appears that this may still be a challenge here. However, the fact that the US government effectively misled the Supreme Court last time around, at least suggests that maybe it will be open to revisiting the issue this time around.
Kudos to Wikimedia for stepping up to the challenge, and to the ACLU for not giving up on this issue.
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