This case raises an important question: Whether the U.S. government’s Upstream surveillance under Section 702 of the Foreign Intelligence Surveillance Act (“FISA”), involving the bulk interception of Internet communications, is lawful and constitutional. After several years of litigation before both this Court and the district court, that question has yet to be answered. Instead, the district court’s application of the common-law state secrets privilege precluded it from fairly deciding the threshold issue of whether Wikimedia even has Article III standing. Relevant here, the district court entered summary judgment against Wikimedia on the mistaken understanding that the government could not litigate its case without revealing privileged information in its defense. Wikimedia Found. v. Nat’l Sec. Agency/Cent. Sec. Serv., 427 F. Supp. 3d 582, 613 (D. Md. 2019) (JA.7: 4110–11). This is simply not the case. FISA provides specific procedures for judicial review of sensitive information related to electronic surveillance for intelligence purposes, yet the district court deferred wholesale to the government’s invocation of the state secrets doctrine. Such unwarranted deference shields the government’s surveillance activities—even those that are publicly known—from judicial scrutiny. This is wrong and deprives plaintiffs of their constitutionally mandated day in court.
The government claimed below that a judicial determination regarding Wikimedia’s Article III standing would necessarily disclose information about the United States’ collection practices that would pose a grave risk to national security. But that argument does not square with reality. As the district court determined, when the government conducts Upstream surveillance, before it ingests any communications into its databases, it first intercepts and scans through communications that transit the Internet backbone. Although the government asserts that Upstream is a targeted surveillance program that ingests only communications to or from specified selectors, it is the government’s interception of massive amounts of communications before specific communications are ingested that amounts to bulk surveillance. This broad-scale interception and scanning are the focus of Wikimedia’s Fourth Amendment claims in this case.
Moreover, this bulk interception as part of the U.S. government’s Upstream surveillance program is similar to the bulk surveillance operations of key U.S. allies and intelligence partners, particularly in Europe. The experiences of these allies demonstrate that it is possible to litigate the legality of bulk interception without compromising national security. Indeed, these governments have made significant disclosures revealing the process and technology employed in bulk cable collection. The capabilities, consequences, and propriety of bulk collection surveillance are disclosed, debated, and litigated openly in other countries. It is therefore difficult to see why bulk interception should be treated so secretly in the United States such that it cannot be challenged in court. Any information revealed by a ruling on Wikimedia’s Article III standing pales in comparison to more detailed public disclosures by foreign governments regarding their bulk surveillance programs.
Read more from this brief here.
Read more from the report this brief refers to, Not A Secret: Bulk Interception Practices of Intelligence Agencies, here.