This lawsuit challenges the suspicionless seizure and searching of internet traffic by the National Security Agency (“NSA”) on U.S. soil. The NSA conducts this surveillance, called “Upstream” surveillance, by tapping directly into the internet backbone inside the United States — the network of high-capacity cables, switches, and routers that today carry vast numbers of Americans’ communications with each other and with the rest of the world. In the course of this surveillance, the NSA is seizing Americans’ communications en masse while they are in transit , and it is searching the contents of substantially all international text-based communications — and many domestic communications as well — for tens of thousands of search terms.
“By tapping the backbone of the Internet, the NSA is straining the backbone of democracy,” said Lila Tretikov, executive director of the Wikimedia Foundation. “Wikipedia is founded on the freedoms of expression, inquiry, and information. By violating our users’ privacy, the NSA is threatening the intellectual freedom that is a central to people’s ability to create and understand knowledge.” Largely exposed to the general public through internal NSA documents leaked by whistleblower Edward Snowden and a steady stream of investigative reporting based on his disclosures, the groups object to how the NSA copies and combs through vast amounts of Internet traffic, which it intercepts inside the United States with the help of major telecommunications companies. According to the ACLU, the surveillance involves the NSA’s warrantless review of the emails and Internet activities of millions of ordinary Americans. “This kind of dragnet surveillance constitutes a massive invasion of privacy, and it undermines the freedoms of expression and inquiry as well,” said ACLU staff attorney Patrick Toomey. “Ordinary Americans shouldn’t have to worry that the government is looking over their shoulders when they use the Internet.” In an op-ed in the New York Times published Tuesday to coincide with the announcement of the lawsuit, Tretikov and Jimmy Wales, the founder of Wikipedia, explain the reasoning behind the legal challenge. “Our lawsuit,” they write, “says that the N.S.A.’s mass surveillance of Internet traffic on American soil—often called ‘upstream’ surveillance—violates the Fourth Amendment, which protects the right to privacy, as well as the First Amendment, which protects the freedoms of expression and association. We also argue that this agency activity exceeds the authority granted by the Foreign Intelligence Surveillance Act that Congress amended in 2008.” Because Wikipedia and other online services provided by the larger Foundation are viewable to the public “anonymously”—that is, without the need to create a user account or log in—and because many of the volunteers who maintain entries on the site do so with a distinct desire not to be monitored, Wales and Tretikov argue those people should “be able to do their work without having to worry that the United States government is monitoring” the content they’re accessing or their related online behavior. “Unfortunately,” write Wales and Tretikov, the anonymity of Wikipedia users “is far from certain because, using upstream surveillance, the N.S.A. intercepts and searches virtually all of the international text-based traffic that flows across the Internet ‘backbone’ inside the United States.” According to the ACLU:
The lawsuit is in some ways a successor to a previous ACLU lawsuit challenging the NSA’s warrantless wiretapping program, Clapper v. Amnesty. The Supreme Court dismissed that case in February 2013 in a 5-4 vote on the grounds that the plaintiffs could not prove that they had been spied on. Edward Snowden has said that the ruling contributed to his decision to expose certain aspects of the NSA’s surveillance activities a few months later. Among the Snowden disclosures were documents relating to upstream surveillance, which has since been confirmed by the government. Unlike the surveillance considered by the Supreme Court in Clapper, upstream surveillance is not limited to the communications of NSA targets. Instead, as we have since learned, the NSA is searching the content of nearly all text-based Internet traffic entering or leaving the country – as well as many domestic communications – looking for thousands of keywords such as email addresses or phone numbers. One of the NSA documents revealed by Snowden included a slide that named Wikipedia, among other major websites, as a good surveillance target for monitoring what people do on the Internet.
As Toomey wrote in a blog post about the lawsuit on Tuesday, “Upstream surveillance flips the Constitution on its head. It allows the government to search everything first and ask questions later, making us all less free in the process. Our suit aims to stop this kind of surveillance.”