"This dedicated global community of users is united by their passion for knowledge, their commitment to inquiry, and their dedication to the privacy and expression that makes Wikipedia possible. We file today on their behalf."
The lawsuit states that "seizing and searching Wikimedia's communications is akin to seizing and searching the patron records of the largest library in the world—except that Wikimedia's communications provide a more comprehensive and detailed picture of its users' interests than any previous set of library records ever could have offered" (clause 67). It asserts that confidential communications among Wikipedia volunteers and staffers are being intercepted, and that "there is a substantial likelihood that the NSA retains, reads, and disseminates Wikimedia's international communications because Wikimedia is communicating with or about persons the government has targeted" (clause 71).
The upstream surveillance targeted by the WMF includes four different processes, laid out in clause 43 of the lawsuit: copying, filtering, content review, and retention and use. As alleged by the WMF, this means, respectively, that
The NSA is copying nearly all Internet traffic between the US and foreign countries, in addition to its substantial intra-US monitoring;
Automatic filtering and discarding of purely domestic US communication, although much of it is actually kept for various reasons;
A content review program detects instances of an unknown number of key words ("selectors") related to NSA foreign intelligence targets, a broad category that includes far beyond suspected agents or terrorists;
The remaining information is retained and used; the NSA saves any communications it believes are relevant to its mission, as well as any information that was bundled with it.
Moreover, the lawsuit states that there are few restrictions on the use of the information from (4):
Upstream surveillance is not limited to communications sent or received by the NSA's targets. Rather, it involves the surveillance of essentially everyone's communications. The NSA systematically examines the full content of substantially all international text-based communications (and many domestic ones) for references to its search terms. In other words, the NSA copies and reviews the communications of millions of innocent people to determine whether they are discussing or reading anything containing the NSA's search terms. [clause 44; emphasis in source]
The WMF's standing rests in the Edward Snowden leaks. On a PowerPoint slide detailing the NSA's interest in HTTP, Wikipedia is listed; it also remarks that "nearly everything a typical user does on the Internet uses HTTP." This was a major factor in hurrying the deployment of HTTP Secure (https) by default to all Wikimedia projects. Beyond this solitary slide, the lawsuit declares that Wikimedia communications "are intercepted, copied, and reviewed" by the NSA. Katherine Maher, the WMF's chief communications officer, wrote in an email to the Signpost that this line was "based on what we know about how the NSA has interpreted FAA and the breadth of the surveillance practices the NSA implemented under the authority of the FAA. The slide helped confirm that conclusion. We will present further information as the case moves forward."
The WMF claims that such intelligence gathering is harmful to their mission, such as in countering systemic bias—the tilt of focus when, for instance, a broadly white, educated, middle-to-upper class male group writes an encyclopedia. In the Foundation's view, non-US editors could justifiably fear that their Wikimedia-related contributions, emails, and even page views will be intercepted by the NSA and shared with their own governments. In a related New York Times op-ed, Wikipedia co-founder Jimmy Wales and WMF executive director Lila Tretikov contend that given the long-standing links between American and Egyptian intelligence, a hypothetical Egyptian editor would "surely be less likely to add her knowledge or have that conversation, for fear of reprisal." Maher echoed these points, writing that these "dragnet mass surveillance practices create a chilling effect on free expression and association."
The lawsuit rhetorically echoes the idea that the NSA "undermines" the plaintiffs:
Upstream surveillance undermines Wikimedia's ability to conduct its work. Wikimedia depends on its ability to ensure anonymity for individuals abroad who view, edit, or otherwise use Wikimedia projects and related web pages. The ability to read, research, and write anonymously is essential to the freedoms of expression and inquiry. Upstream surveillance harms the ability of Wikimedia's staff to engage in communications essential to their work and compromises Wikimedia's organizational mission by making online access to knowledge a vehicle for U.S. government monitoring. [clause 74; related clauses include 2, 83, 88, 93, 98, 103, 108, 113, and 118]
In the New York Times op-ed, titled "Stop Spying on Wikipedia Users," Wales and Tretikov assert that Wikimedia editors should be free to edit and email without fear of government oversight: "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."
In a similar vein, the WMF published a blog post emphasizing privacy as "the bedrock of individual freedom" and "a universal right that sustains the freedoms of expression and association." The post decried the NSA's activities, which they said "rightfully alarmed" the Wikipedia community when disclosed (see previous Signpostcoverage). At the conclusion of the post, the WMF legal team answered many frequently asked questions, which were reproduced on Meta for convenience. Of note, however, is that while the WMF correctly identifies that individuals can register anonymous accounts—"we don't require real names, email addresses, or any other personally identifying information, and we never sell your data"—they do not mention that those who edit without one are publicly identified, in on-wiki records, with their individual IP address.
The ACLU is representing the plaintiffs pro bono, so no Wikimedia donor funds will be devoted to the lawsuit beyond those already budgeted for the legal team and regular staff time. This is significant, given that a similarly scoped case, Clapper v. Amnesty, took years to wind its way through the US legal system before it was dismissed by the Supreme Court in 2013. We asked Maher if the WMF was prepared to fight a case that could last just as long:
"The Foundation is prepared and committed for the duration."