Appeals court gives Wikimedia thumbs up to sue NSA for ‘Upstream’ surveillance

Well, well, well, the NSA may not waltz away legally unscathed after spying on Americans’ private communications due to the dogged determination of the Wikimedia Foundation, the ACLU, the Knight First Amendment Institute at Columbia University and eight other co-plaintiffs.

The 4th US Circuit Court of Appeals ruled to give Wikimedia a chance to legally challenge the NSA’s mass surveillance as being unconstitutional. The government has previously argued that the NSA’s Upstream warrantless spying is authorized under Section 702 of the Foreign Intelligence Surveillance Act. Thanks to Upstream surveillance, the NSA sucks up and searches through American’s international internet communications.

The ruling yesterday reversed a lower court’s ruling which found Wikimedia, which publishes the internet behemoth Wikipedia, couldn’t prove the NSA’s “Upstream” surveillance program was secretly monitoring its communications, vacuuming the communications right off the internet backbones – even with leaked Snowden documents showing Wikipedia as an NSA target.

Despite Wikimedia’s “99.9999999999%” assertion that at least one of its more than one trillion international text-based internet communications each year had been copied and reviewed by the NSA, the lower court ruled that Wikimedia couldn’t prove it was being surveilled.

Thankfully the 4th US Circuit Court of Appeals did not agree. In fact, due to the sheer size of Wikimedia, the judges found that the NSA probably had seized at least some of their communications.

Watch out, NSA, as you are about to be sued for violating the Fourth and First Amendment. It’s about flipping time a lawsuit about such unconstitutional surveillance moved forward, instead of being killed off because the groups can’t prove the NSA was spying on them.

The 4th US Circuit Court of Appeals ruled:

Wikimedia has plausibly alleged that its communications travel all of the roads that a communication can take, and that the NSA seizes all of the communications along at least one of those roads. Thus, at least at this stage of the litigation, Wikimedia has standing to sue for a violation of the Fourth Amendment.

And, because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the First Amendment.

“This is an important victory for the rule of law. The NSA has secretly spied on Americans’ internet communications for years, but now this surveillance will finally face badly needed scrutiny in our public courts. We look forward to arguing this case on the merits,” said ACLU attorney Patrick Toomey.

“Our government shouldn’t be searching the private communications of innocent people in bulk, examining the contents of Americans’ emails and chats day in and day out,” Toomey added. “This mass surveillance threatens the foundations of a free internet.”

The ruling was not all good news as the court determined that the other eight co-plaintiffs did not have standing in the case. The dissenting judge found that all nine plaintiffs had standing: Wikimedia Foundation, The Nation Magazine, Amnesty International USA, PEN America, Human Rights Watch, the Rutherford Institute, the National Association of Criminal Defense Lawyers, Global Fund for Women and the Washington Office on Latin America.

Wikimedia said, “We, our co-plaintiffs, and our counsel at the American Civil Liberties Union (ACLU), will carefully review the opinion and determine the next steps for our case.”

No trial date has been set and Wikimedia still has to prove the NSA’s surveillance is unconstitutional. Nevertheless, the Wikimedia Foundation added:

This marks an important step forward in Wikimedia Foundation v. NSA, and a victory for upholding the rights of privacy and free expression for Wikimedia users. We stand ready to continue this fight.