Wikimedia lawsuit against NSA dismissed; Affiliates mailing list launched: District court judge decrees that the WMF lacks standing.
As reported on October 23 by Ars Technica, The Guardian, TechDirt, The Baltimore Sun, Gizmodo and others, the case brought by the Wikimedia Foundation and others against the National Security Agency (see previous Signpost coverage) has been dismissed on standing grounds.
Judge T. S. Ellis III (misidentified in Wikipedia and by Ars Technica as Richard D. Bennett), who had also presided over the lawsuit's first hearing last month, said in his memorandum opinion (available here) that the suit relied on "the subjective fear of surveillance". He also critiqued various aspects of the plaintiffs' statistical analysis, which sought to demonstrate that Wikipedia traffic must have been caught up in NSA data collection. Ellis characterized said analysis as "mathematical gymnastics", "incomplete and riddled with assumptions":
| “ | In short, plaintiffs' assumption appears to be the product of reverse engineering; plaintiffs first defined the conclusion they sought – virtual certainty – and then worked backwards to find a figure that would lead to that conclusion. Mathematical gymnastics of this sort do not constitute "sufficient factual matter" to support a "plausible allegation". | ” |
Ellis' dismissal of the case was in large part based on the United States Supreme Court's 5–4 majority decision in Clapper v. Amnesty International USA:
| “ | As already discussed, although plaintiffs have alleged facts that plausibly establish that the NSA uses Upstream surveillance at some number of chokepoints, they have not alleged facts that plausibly establish that the NSA is using Upstream surveillance to copy all or substantially all communications passing through those chokepoints. In this regard, plaintiffs can only speculate, which Clapper forecloses as a basis for standing. | ” |
In conclusion, Ellis asserted that any concern that the principles established in Clapper would immunize surveillance from scrutiny was misplaced: "no government surveillance program is immunized from judicial scrutiny", Ellis said, enumerating several ways in which such scrutiny can take place, for example through the non-public reviews performed by the United States Foreign Intelligence Surveillance Court, or when surveillance results are used in a criminal prosecution.
Ellis concluded by saying that
| “ | establishing standing to challenge section 702 in a civil case is plainly difficult. But such difficulty comes with the territory. It is not a flaw of a classified program that standing to challenge that program is not easily established; it is a constitutional requirement essential to separation of powers. | ” |
Commenting on Ellis' argument that government surveillance programs were subject to judicial scrutiny whenever the intelligence gleaned was used in criminal proceedings, Techdirt's Mike Masnick pointed out that the U.S. government has in the past failed to make the appropriate disclosures in such cases:
| “ | The court also rejects the idea that this kind of ruling means that the Upstream program can never face judicial review, pretending that the fact that the FISA court reviewed it (without any adversarial party) is enough ... and (again, incorrectly) that criminal defendants prosecuted with information collected under the program can challenge said collection. And, yes, it's true that the DOJ has now said that it will start informing defendants, but it didn't for years.
The ACLU is, not surprisingly, upset by the ruling, and I imagine it will be appealed soon. |
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ACLU National Security Project staff attorney Patrick Toomey, who argued the case pro bono on behalf of the plaintiffs, said,
| “ | The court has wrongly insulated the NSA's spying from meaningful judicial scrutiny. | ” |
On its website, the ACLU said, in part,
| “ | Today’s ruling cites the Supreme Court’s decision in a previous ACLU lawsuit challenging the NSA’s warrantless wiretapping program, Clapper v. Amnesty. The Supreme Court dismissed that case in February 2013 in a 5–4 vote on the grounds that the plaintiffs could not prove that they had been spied on.
Following Clapper, documents released by Edward Snowden and official government disclosures revealed the breadth of upstream surveillance. Unlike the surveillance considered by the Supreme Court in Clapper, upstream surveillance is not limited to the communications of NSA targets. Instead, the NSA is searching the content of nearly all text-based Internet traffic entering or leaving the country – as well as many domestic communications – looking for thousands of key terms such as email addresses or phone numbers. |
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The Wikimedia Foundation released a statement on its blog, saying in part:
| “ | Judge T.S. Ellis III, the presiding judge, dismissed the case on standing grounds. The court held that our complaint did not plausibly allege that the NSA was monitoring our or other plaintiffs’ communications. Additionally, the court referenced the U.S. Supreme Court decision in Clapper v. Amnesty International, although, in our opinion, the facts before the court were dramatically different from the ones that were before the Supreme Court in Amnesty.
We respectfully disagree with the Court's decision to dismiss. There is no question that Upstream surveillance captures the communications of both the user community and the Wikimedia Foundation itself. We believe that our claims have merit. In consultation with our lawyers at the ACLU, we will review the decision and expect to appeal to the Fourth Circuit Court of Appeals. |
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An October 15 post on the Wikimedia-l mailing list announced the launch of the
| “ | Wikimedia Affiliates mailing list, which is basically a place for all the affiliates (chapters, thematic organizations, user groups) to discuss issues related to affiliates, make announcements to other affiliates, and collaborate on activities and community-wide events. The idea is to help facilitate the dialogue affiliates across our movement, plus collaborative discussions like community-wide activities, joint edit-a-thons, regional conferences, blog/report posts, or other communications from affiliates.
Each Wikimedia movement affiliate is allocated three spots on the mailing list. All affiliates may contact the Affiliations Committee to request additional spots if needed. |
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The announcement sparked a considerable amount of debate as to whether another mailing list was necessary or desirable.
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