National security agency website

Court rules Wikipedia can challenge NSA on mass online surveillance

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Having previously been dismissed by a District Judge, a US federal appeals court has ruled that the Wikimedia Foundation – which owns Wikipedia – and other plaintiffs may continue to challenge the National Security Agency (NSA) over their upstream collection of domestic communications.

The foundation claims that the government agency is invading the constitutional right to privacy through its “Upstream” mass online surveillance programme.

A 2011 Foreign Intelligence Surveillance Act (Fisa) court ruling revealed in 2013 that the NSA had collected tens of thousands of domestic US emails. This violates the law, which only permits interception of US citizens’ communication if one party involved in the communication is based abroad.

The programme’s existence was among the secrets leaked in 2013 by Edward Snowden, a former NSA contractor.

“Upstream” collection refers to the interception of communications from the “backbone” of the internet: the major internet cables and switches which form data routes. The Upstream programme allows for enormous amounts of data to be collected, with special attention given to foreign communications and people and organisations earmarked by the NSA.

Lawyers representing the Wikimedia Foundation and other organisations, including Human Rights Watch, argued that the surveillance programme violates their rights to privacy, freedom of expression and association.

Their case was dismissed in October 2015, when a US District Judge said that there was a lack of evidence that the NSA was carrying out the surveillance programme “at full throttle”.

Now, the 4th US Circuit Court of Appeals in Richmond, Virginia, has ruled 3-0 in favour of the Wikimedia Foundation. Circuit Judge Albert Diaz said that there was “nothing speculative” about the claims of the Wikimedia Foundation, and that Upstream demonstrated an “invasion of legally protected interest – the Fourth Amendment right to be free from unreasonable searches and seizures”.

The plaintiffs could also pursue their First Amendment right to freedom of expression, as it had “self-censored its communications in response to the surveillance program, Diaz said. The US Department of Justice countered that the Upstream programme had been authorised by Fisa. The section of Fisa authorising the programme will expire at the end of the year.

Patrick Toomey, an American Civil Liberties Union lawyer representing Wikimedia and the other plaintiffs, said that the ruling meant the programme would “finally face badly needed scrutiny” in court.

“This is an important victory for the rule of law,” he said. “Our government shouldn’t be searching the private communications of innocent people in bulk.”

The case will return to court in Maryland, where the NSA is based.

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