Wikimedia vs NSA: ACLU Files Lawsuit to End Spy Agency's 'Upstream Surveillance'

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The National Security Agency headquarters in Fort Meade, Maryland.

The American Civil Liberties Union (ACLU) has filed a lawsuit on behalf of Wikimedia and other organizations, ranging from the liberal Human Rights Watch to the conservative Rutherford Institute, against the National Security Agency (NSA) challenging the government's mass surveillance program.

The lawsuit centers on the NSA's controversial practice of "upstream surveillance," which is the capturing of broadly interpreted "foreign intelligence information" from non-U.S. citizens, as authorized by the FISA Amendments Act of 2008 (FAA). According to a Wikimedia blog post, the program casts a wide net and "as a result, captures communications that are not connected to any 'target,' or may be entirely domestic. This includes communications by our users and staff."

"Upstream surveillance" was first revealed by Edward Snowden, a former NSA analyst. The ACLU's lawsuit accuses the NSA and other government organizations of violating the First Amendment, which protects speech, and the Fourth Amendment, which protects against unlawful search and seizure. Below is the ACLU's description of "upstream":

The NSA intercepts and copies private communications in bulk while they are in transit, and then searches their contents using tens of thousands of keywords associated with NSA targets. These targets, chosen by intelligence analysts, are never approved by any court, and the limitations that do exist are weak and riddled with exceptions. Under the FAA, the NSA may target any foreigner outside the United States believed likely to communicate "foreign intelligence information" -- a pool of potential targets so broad that it encompasses journalists, academic researchers, corporations, aid workers, business persons, and others who are not suspected of any wrongdoing.

Wikimedia founder Jimmy Wales and executive director Lila Tretikov wrote in a New York Times opinion piece that they are standing up for the privacy rights of Wikipedia's 75,000-plus contributors -- many of whom wish to remain anonymous as they edit or write about topics that may be controversial where they live.

"These volunteers should be able to do their work without having to worry that the United States government is monitoring what they read and write," they said, later adding that "as a result [of upstream surveillance], whenever someone overseas views or edits a Wikipedia page, it's likely that the N.S.A. is tracking that activity -- including the content of what was read or typed, as well as other information that can be linked to the person's physical location and possible identity. These activities are sensitive and private: They can reveal everything from a person's political and religious beliefs to sexual orientation and medical conditions."

Wales and Tretikov added, "We are asking the court to order an end to the NSA's dragnet surveillance of internet traffic."

The U.S. Supreme Court denied the ACLU's 2013 challenge to the FAA because it said the lawsuit's parties (namely Amnesty International) lacked proof they had been spied on. The ACLU and Wikimedia believe this new case against the government will succeed because one of Snowden's leaked disclosures included a classified NSA slide that specifically referred to Wikipedia.

ACLU attorney Patrick Toomey told Politico that it was also relevant that "the plaintiffs in this case engage in hundreds of billions of international communications each year," and that it's "inconceivable that the NSA isn't copying and searching through."

Other defendants include NSA director Michael Rogers, National Intelligence director James Clapper and Attorney General Eric Holder. Wikimedia's partners in the lawsuit include The National Association of Criminal Defense Lawyers, Human Rights Watch, Amnesty International USA, Pen American Center, Global Fund for Women, The Nation Magazine, The Rutherford Institute, and Washington Office on Latin America.

The case is Wikimedia v. NSA., U.S. District Court, District Of Maryland, No. 1:15-cv-00662 and can be found here.