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Wikimedia v. NSA (Amicus Brief)

The Brennan Center filed an amicus brief urging the Fourth Circuit to preserve judicial review in civil cases challenging the National Security Agency’s “upstream” surveillance program.

Last Updated: October 6, 2021
Published: October 6, 2021

Oper­at­ing under Section 702 of the Foreign Intel­li­gence Surveil­lance Act of 1978, the “upstream” surveil­lance program, revealed by Edward Snowden, taps into the cables that trans­mit digital data inter­na­tion­ally. After copy­ing all commu­nic­a­tions than run through this “back­bone,” the NSA searches for content asso­ci­ated with Section 702 “targets.” These may include any foreigner over­seas — as long as a signi­fic­ant purpose of the collec­tion is to obtain “foreign intel­li­gence inform­a­tion,” broadly defined in the stat­ute to encom­pass any inform­a­tion relev­ant to the foreign affairs of the United States. The filtered data is then retained for future searches, provid­ing a gaping back­door for the surveil­lance of Amer­ic­ans who may be in contact with foreign­ers over­seas.

The Wiki­me­dia Found­a­tion and similar nonprofit entit­ies, repres­en­ted by the ACLU, filed a lawsuit against the NSA in the United States District Court for the District of Mary­land in March 2015, alleging that the upstream program viol­ated Inter­net users’ First and Fourth Amend­ment rights. The district court dismissed the case, hold­ing that Wiki­me­dia had not demon­strated that its data had been seized by the NSA. On appeal, the Fourth Circuit vacated the district court’s judg­ment and held that Wiki­me­dia had alleged more than spec­u­lat­ive injury.

On remand, the govern­ment pulled the state secrets priv­ilege out of its toolkit. The NSA claimed that allow­ing depos­itions and discov­ery to continue would damage national secur­ity, and the district court respon­ded in 2018 by once again dismiss­ing the suit. Wiki­me­dia appealed to the Fourth Circuit, and the Bren­nan Center, joined by the Amer­ic­ans for Prosper­ity Found­a­tion, the Elec­tronic Fron­tier Found­a­tion, the Elec­tronic Privacy Inform­a­tion Center, Freedom­Works, and Tech­Free­dom, filed an amicus brief in support of the plaintiff-appel­lant.

Our brief explains the harm that would flow from allow­ing the state secrets priv­ilege to effect­ively fore­close civil litig­a­tion chal­len­ging FISA abuses. In partic­u­lar, it demon­strates that the remain­ing ways of obtain­ing judi­cial review of FISA surveil­lance—­through review by the Foreign Intel­li­gence Surveil­lance Court, and by chal­lenges to evid­ence intro­duced in crim­inal proceed­ing­s—have proven inad­equate to protect civil liber­ties against govern­mental abuses of FISA. It concludes that the ongo­ing viab­il­ity of the civil litig­a­tion option — and, thus, a rejec­tion of the govern­ment’s efforts to shut down civil litig­a­tion using the state secrets priv­ilege — is crit­ical to ensure account­ab­il­ity and the rule of law.

On Septem­ber 16, 2021, the Fourth Circuit upheld the district court’s dismissal on state-secrets grounds.

Read the Bren­nan Center’s brief below.

Wiki­me­dia v. NSA (Amicus Brief) by The Bren­nan Center for Justice on Scribd