Wikipedia strikes a blow for privacy:
The Wikimedia Foundation, owner of Wikipedia, and eight other groups filed a lawsuit in federal court Tuesday against the National Security Agency and the Department of Justice, challenging the NSA's mass-surveillance program.
"Our aim in filing this suit is to end this mass surveillance program in order to protect the rights of our users around the world," the non-profit Wikimedia Foundation wrote in a blog post about the suit filed in Maryland. The American Civil Liberties Union is representing the groups and posted the full complaint online. Other plaintiffs include Human Rights Watch and Amnesty International.
The lawsuit
specifically targets the NSA's mass surveillance of international internet traffic that passes through the Internet "backbone" on American soil, sometimes referred to as "upstream" surveillance, and alleges that the Agency's practices violate the First (specifically, by inhibiting the free exchange of ideas and freedom of expression due to pervasive, unwanted and unchecked surveillance) and Fourth Amendment, which (the parties contend) protects the right to privacy. The Parties also allege that the Agency's actions exceed those permissible under the Foreign Intelligence Surveillance Act (FISA).
In their statement, linked above, tited "Stop Spying on Wikipedia Users," Wikimedia points out that while most users of Wikipedia do so anonymously (as no account is required) many of the service's editors also prefer anonymity in many cases because they live and work in countries with repressive governments, where disclosure of their identities could result in persecution or death. They contend that both users and editors of Wikipedia should be able to use their service without having to contend with the U.S. government snooping into what they choose to read and write. The practice of "upstream" surveillance, as revealed to the world through the disclosures of Edward Snowden, essentially searches virtually all international text-based traffic that flows through the United States.
As a result, 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.
One of the documents revealed by Mr. Snowden lists
Wikipedia as an explicit target of U.S. spying, along with Gmail and Facebook. The Plaintiffs contend this explicit targeting by the NSA gives them the requisite standing to sue, i.e, proof of actual individualized harm to the plaintiff. This is a critical point to establish as the Supreme Court and lower courts have dismissed or stalled
prior lawsuits on the issue based on lack of standing. Of course, this is a constant source of frustration as the government
reflexively invokes the "states secrets" privilege" in order to deny both plaintiffs and the Courts access to information which could, in fact, establish standing and direct harm. This tactic, wholly deliberate on the part of the U.S. government, has thus far led to a
perpetual Catch-22 situation for those attempting to sue the DOJ or NSA to stop their surveillance practices.
The cooperation of certain unsavory regimes with U.S. intelligence services, the sharing of information, and the access to the surveillance that this cooperation implicates, is one of the key concerns raised in the lawsuit:
So imagine, now, a Wikipedia user in Egypt who wants to edit a page about government opposition or discuss it with fellow editors. If that user knows the N.S.A. is routinely combing through her contributions to Wikipedia, and possibly sharing information with her government, she will surely be less likely to add her knowledge or have that conversation, for fear of reprisal.
And then imagine this decision playing out in the minds of thousands of would-be contributors in other countries. That represents a loss for everyone who uses Wikipedia and the Internet — not just fellow editors, but hundreds of millions of readers in the United States and around the world.
From the
Complaint, filed today and posted online by the ACLU:
One aspect of the processes outlined above bears emphasis: 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. The NSA’s practice of reviewing the content of communications for selectors is sometimes called “about” surveillance. This is because its purpose is to identify not just communications that are to or from the NSA’s targets but also those that are merely “about” its targets. Although it could do so, the government makes no meaningful effort to avoid the interception of communications that are merely “about” its targets; nor does it later purge those communications.
One of the hallmarks of President Obama's term in office has been the much vaunted "remaking" of the Federal Judiciary, particularly the lower District Courts and Courts of Appeals, where these cases are decided. Whether Wikimedia succeeds where others have failed--in convincing a Court that assertions of "state secrets" are more typically concerned with covering up governmental malfeasance rather than protecting actual "secrets"--will likely depend on the courage and intelligence of a few of those newly-appointed Judges.
From Wikipedia's Op-Ed in today's New York Times:
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.