Wikimedia Foundation & rights groups sue NSA over mass surveillance

This post was originally published on March 16, 2015.

Jimmy Wales’ Wikimedia Foundation, the non-profit organization behind Wikipedia, has announced its intention to file a lawsuit against the National Security Agency (NSA) and the Department of Justice (DOJ).

The suit is set to challenge programs of mass surveillance such as PRISM.

In a recent blog post the foundation said:

“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 is joined by eight other organizations “from across the ideological spectrum,” including:

• Amnesty International USA
• Global Fund for Women
• Human Rights Watch
• Pen American Center
• The Nation Magazine
• The National Association of Criminal Defense Lawyers
• The Rutherford Institute
• The Washington Office on Latin America

The full complaint explains how Wikimedia will focus on so-called “upstream” surveillance – the collection of vast amounts of data through tapping internet structure.

The lawsuit claims that such widespread surveillance impinges both the First Amendment and the Fourth by eroding the freedoms of expression and association and the right to privacy respectively.

The suit also says the NSA’s practices, first brought to the public’s attention by whistleblower Edward Snowden, violate Article III of the Constitution, which establishes the authority of US courts.

In addition, it says that the spy agency exceeded its remit, as defined by the Foreign Intelligence Surveillance Act (FAA) and amended by Congress in 2008.

The FAA gives the security services the authority to monitor only non-US citizens but the methods employed actually hoovered up huge amounts of data from US residents and entirely innocent non-residents alike.

Unfortunately, the problem for Wikimedia is the difficulty in proving that superfluous data has been collected. Such a stumbling block may actually make it impossible for the foundation to win its case.

Wikimedia has pointed toward a classified NSA PowerPoint presentation that was released in 2013 that included one particular slide that explained how its monitoring systems could allow its analysts to learn “nearly everything a typical user does on the internet”.

The foundation also presented a second slide in its suit that includes an explicit reference to Wikipedia and even uses its trademark, as well as others from organizations including Google, Facebook, Twitter and Yahoo. This, it says, provides the grounds for its suit.

The actual legal situation isn’t so clear cut though – to prove its case, Wikimedia will need to conclusively prove that it was itself affected by the actions of the NSA. The agency will likely, as it has in the past, argue that the foundation cannot know whether or not its communications were ever intercepted in the first place. While such an argument may sound a bit wishy washy, it has proven to be quite effective in the past due to the fact that secret surveillance programs are, of course, secretive in their scope and execution.

Wales and Wikimedia Foundation executive director Lila Tretikov say the case is essential as the current standing could leave contributors unwilling to create new articles or edit existing ones for fear of reprisals should the NSA read their input.

The pair said suit had been filed to protect Wikipedia’s 500 million monthly visitors and their democratic right to freely exchange ideas and knowledge, adding that:

“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”.

According to Reuters the Obama administration is dismissive of the case, saying:

“We’ve been very clear about what constitutes a valid target of electronic surveillance. The act of innocuously updating or reading an online article does not fall into that category”.

We’ll be following the case, which Wikimedia filed with the help of the American Civil Liberties Union, with great interest.