Wikimedia Sues NSA for Upstream Surveillance

Privacy Internet First Amendment

On March 10, 2015, Wikimedia Foundation filed a lawsuit against the National Security Agency (NSA) and Department of Justice (DOJ) for its upstream surveillance program, which is said to violate constitutional freedoms of speech and protections against unreasonable search and seizure.

The existence of upstream surveillance programs first came to light in June 2013 via whistleblowing information disclosed by Snowden. This leak alarmed the Wikimedia community and startled the debates about the possibility to take legal action.

Wikipedia’s founder Jimmy Wales in his public statement emphasised that “surveillance erodes the original promise of the internet: an open space for collaboration and experimentation, and a place free from fear.”

Wikimedia foundation challenges NSA’s upstream surveillance practice. Pursuant to Section 702(a) of the Foreign Intelligence Surveillance Act Amendments Act (FAA), NSA taps into the internet’s backbone, consisting of high speed cables, switches and routers linking ISPs and key transit points on the net. This backbone is used for virtually all communication with any person reasonably believed to be located outside the US. The practice arguably exceeds the authority of the NSA granted by the US Congress as well as violates the U.S. Constitution’s First and Fourth Amendments, which protect freedom of speech and establish safeguards against unreasonable search and seizure.

Eight other human rights organizations whose work relates to privacy of communications joined the action, including Human Rights Watch, Amnesty International USA, American Civil Liberties Union, and the National Association of Criminal Defense Lawyers. All plaintiffs are concerned that the activities of the NSA intercept into the communication of every American citizen, not only persons abroad who could be targeted under the FAA.

“By tapping the backbone of the internet, the NSA is straining the backbone of democracy,” said Lila Tretikov, executive director of the Wikimedia Foundation. “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 defendant NSA has not yet issued any public statement on this matter. Yet, the plaintiffs will have to carry a hefty burden in the trial because they will have to prove that they were affected by the NSA’s action.

As Lila Tretikov and Jimmy Wales described in a New York Times op-ed, “Privacy is an essential right. It makes freedom of expression possible, and sustains freedom of inquiry and association. It empowers us to read, write and communicate in confidence, without fear of persecution. Knowledge flourishes where privacy is protected.”

BBC, NPR, the Verge, and Just Security describe more about the controversy.