The ACLU and the Wikimedia Foundation can move forward with an internet surveillance lawsuit against the NSA and Department of Justice, an appeals court has ruled. The ruling, published today, reverses a decision made back in October 2015 by a lower court. That ruling declared that the Wikimedia Foundation, along with several other organizations named in the lawsuit, hadn’t reasonably established that the NSA was collecting their data. But appeals judges found that Wikimedia had made a strong logical case for its claim, reviving the complaint.
Wikimedia’s case concerns internet surveillance under Section 702 of the FISA Amendments Act, or more specifically, “upstream” interception of data from internet backbone cables. The ACLU argued that because Wikimedia’s internet footprint (including its site Wikipedia) was so large, tapping into even one backbone network would have almost certainly captured information from its sites, violating the foundation’s First and Fourth Amendment rights.
Wikipedia is really, really big
The lower court found this unpersuasive, calling the reasoning “incomplete and riddled with assumptions.” But the Fourth Circuit Appeals Court decided that it was a logical conclusion based on Wikipedia’s size and the upstream program’s basic premise. “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 road,” wrote Judge Albert Diaz.
This reasoning doesn’t apply to other plaintiffs in the lawsuit, including Human Rights Watch and Amnesty International. Diaz writes that these parties, with their much smaller online footprints, would need to “plausibly establish that the NSA is intercepting ‘substantially all’ text-based communications” to prove they’re being surveilled — something that’s impossible without more leaked details about the program’s scope. But Snowden’s existing leaks did provide enough information to help Wikimedia’s case avoid the fate of Clapper v. Amnesty, an earlier (failed) ACLU lawsuit challenging NSA surveillance.
The decision doesn’t guarantee that Wikimedia will prevail in the larger case, or that a legal victory will provide sweeping change. An earlier suit successfully attacked the NSA’s phone surveillance program, but only reached victory as it was already winding down. Regardless, it helps set a precedent for future lawsuits, and it renews opposition to Section 702’s broad surveillance capabilities, which are up for reapproval in Congress this year.