Wikimedia Sues NSA Over Its Mass Surveillance Program

from the boom dept

Tue, Mar 10th 2015 6:12am — Mike Masnick

This is big news. Wikimedia Foundation, the organization behind Wikipedia, has announced that it is suing the NSA (with help from the ACLU) over its mass surveillance program. While the full lawsuit hasn't yet been posted, the lawsuit targets the "upstream" collection under Section 702 of the FISA Amendments Act. Because this gets confusing if you're not spending a lot of time with this, let's break out some of the different surveillance programs:

Section 215 of the PATRIOT Act: Under this program the NSA is collecting all the phone metadata on calls in the US.
Executive Order 12333: This is what enables the NSA to hack into pretty much anything overseas -- including things like Google, Yahoo and Microsoft's data centers.
PRISM: Actually part of Section 702 of the FISA Amendments Act. Allows for (slightly) targeted collections of information via a court order from the FISA Court, demanding specific types of information (rather than "all" information).
Upstream collection: Also under Section 702, but this is the program that lets the NSA tap into backbone fiber optic cables, such as from AT&T and others, and slurp up all traffic in case there's anything "interesting" happening that it can classify as "foreign intelligence information."

It's the upstream collection that Wikimedia is challenging in this lawsuit, arguing (among other things) that it violates both the First and Fourth Amendments.

That upstream program is the one that was first disclosed by Mark Klein, a former AT&T technician who wandered into the EFF's offices a decade ago with the evidence. This resulted in a lawsuit -- Hepting v. AT&T -- that AT&T was able to get out of thanks to Congress passing a law granting the telcos retroactive immunity for helping the NSA. The EFF has a long-running similar case against the NSA over the upstream collection -- Jewel v. NSA -- which recently suffered a setback, in that the judges claimed there wasn't evidence for "standing." That is, the plaintiffs need to be able to prove that they were spied on -- which is a fairly tough barrier.

Another case that was filed on similar grounds, by Amnesty International (also with the ACLU), also lost at the Supreme Court on the question of "standing." However, as it later came out, that victory was based mostly on a false statement from Solicitor General Donald Verrilli, who had argued that if the US government made use of any of the upstream collection data in a lawsuit against someone, the government would need to reveal it to the defendants, who would then have standing to challenge it. Only later -- thanks to a Senate speech from Senator Dianne Feinstein -- did it come out that the DOJ regularly made use of information collected this way without ever alerting the defendants about how the information was collected.

Wikimedia thinks that it has a chance to get past this "standing" hurdle, thanks to the following NSA slide that was leaked in the Ed Snowden revelations:

See that big Wikipedia logo? That seems to be the NSA admitting that it's spying on Wikipedia users.

The 2013 mass surveillance disclosures included a slide from a classified NSA presentation that made explicit reference to Wikipedia, using our global trademark. Because these disclosures revealed that the government specifically targeted Wikipedia and its users, we believe we have more than sufficient evidence to establish standing.

In an op-ed for the NY Times, Wikipedia's Jimmy Wales explains why the organization is doing this:

The harm to Wikimedia and the hundreds of millions of people who visit our websites is clear: Pervasive surveillance has a chilling effect. It stifles freedom of expression and the free exchange of knowledge that Wikimedia was designed to enable.

During the 2011 Arab uprisings, Wikipedia users collaborated to create articles that helped educate the world about what was happening. Continuing cooperation between American and Egyptian intelligence services is well established; the director of Egypt’s main spy agency under President Abdel Fattah el-Sisi boasted in 2013 that he was “in constant contact” with the Central Intelligence Agency.

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.

Given how much difficulty other cases have had in establishing standing, it appears that this may still be a challenge here. However, the fact that the US government effectively misled the Supreme Court last time around at least suggests that maybe it will be open to revisiting the issue this time around.

Kudos to Wikimedia for stepping up to the challenge, and to the ACLU for not giving up on this issue.

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Filed Under: 1st amendment, 4th amendment, faa, fisa amendments act, nsa, section 702, standing, surveillance, upstream
Companies: aclu, wikimedia, wikimedia foundation, wikipedia

22 Comments

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Anonymous Coward, 10 Mar 2015 @ 6:59am

The difficulty in these cases is proving the client's harm, which by the government's standards is nearly impossible. Good luck to them, though.
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- Richard (profile), 10 Mar 2015 @ 7:42am
  
  Re:
  Of course many fraudsters try to get off the same way. They claim that stealing a tiny sum of a large number of people doesn't result in any real victims.
  
  Of course we all know this is wrong so maybe there is a chance.
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  - Not an Electronic Rodent (profile), 10 Mar 2015 @ 9:03am
    
    Re: Re:
    They claim that stealing a tiny sum of a large number of people doesn't result in any real victims.
    
    Of course we all know this is wrong so maybe there is a chance
    One can hope you're right, but the cynic says no.
    
    It's easier to prove fraud when you can count the money, however small... it's harder to count "quantity" of freedom, especially when the people you need to prove the "count" to seem to have an almost pathological blindness to its loss.
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    - Anonymous Coward, 10 Mar 2015 @ 9:34am
      
      Re: Re: Re:
      One can hope you're right, but the REALIST AND HISTORIAN says no.
      
      Fixed that one for you.
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      - Not an Electronic Rodent (profile), 10 Mar 2015 @ 1:25pm
        
        Re: Re: Re: Re:
        REALIST AND HISTORIAN says no.
        Yeah... them too. To be fair, probably also Captain Obvious.
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- Murdoch, 10 Mar 2015 @ 8:40am
  
  Re:
  ...the core 'difficulty' is that they are suing the government in the government's own courts -- those courts are thoroughly controlled by the government and heavily biased toward the government establishment. Good Luck.
  
  The U.S. Supreme Court itself established and controls the outrageously non-Constitutional FISA Court, and sees no problem with it. The NSA itself is also blatantly non-Constitutional, established by a mere presidential executive order.
  
  With this foundation, it's foolish to expect the courts to oppose the details of NSA operations or rigorously defend the Constitution.
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  - Not an Electronic Rodent (profile), 10 Mar 2015 @ 9:06am
    
    Re: Re:
    those courts are thoroughly controlled by the government and heavily biased toward the government establishment
    But surely that's what "checks-and-balances" is supposed to address? (Boy! Was that hard to type for laughing...)
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Ninja (profile), 10 Mar 2015 @ 7:38am

Question is, will this be considered enough evidence that the NSA is meddling with Wikipedia users/moderators/contributors?

The requirement of having evidence that you are being spied makes sense depending on the point of view: there are plenty of paranoid wackos out there that would sue possibly clogging the judicial system. However given the importance and the evidence already disclosed this should not be a requirement anymore.
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Anonymous Coward, 10 Mar 2015 @ 8:04am

I expect a barrage of "It's all legal"s and "stopped 52 terrorist plots"s and "We're the government so fuck off"s.
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Anonymous Coward, 10 Mar 2015 @ 8:22am

if the EFF needs help, I know the lawyer at NewEgg has a record for knocking down trolls.

granted...the government isn't looking for money...but they are a bully....
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sorrykb (profile), 10 Mar 2015 @ 8:22am

Not just Wikimedia
Wikimedia's co-plaintiffs are The National Association of Criminal Defense Lawyers, Human Rights Watch, Amnesty International USA, PEN American Center, Global Fund for Women, The Nation Magazine, The Rutherford Institute, and Washington Office on Latin America.

And all represented by the ACLU.

Not a bad group.
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Anonymous Anonymous Coward, 10 Mar 2015 @ 8:28am

Who will take this bet?
I bet that the government argues that they are not spying on Wikipedia, but their users, and therefore no standing.
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Anonymous Coward, 10 Mar 2015 @ 9:35am

Fake document
Future quote from the proceedings:

"Your Honour, the document supposedly 'leaked' by the Russian spy Ed Snowden is a made up fantasy. This group cannot prove otherwise therefore they have no standing."
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- That One Guy (profile), 10 Mar 2015 @ 2:47pm
  
  Re: Fake document
  You laugh, but I have little doubt the government will try and squash the evidence being presented, by claiming that it's classified and/or vital to National Security: Because Terrorists!(tm).
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Anonymous Coward, 10 Mar 2015 @ 9:39am

Big Brother
Any lawyer prosecuting will surely be subject to the full weight of several out-of-control security services.
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Anonymous Coward, 10 Mar 2015 @ 10:12am

Checks and Balances
What was originally setup to constrain the government is now being used to restrict the people. All of the laws and rules that were setup to benefit us have been twisted to be used against us. Somehow we are innocent until proven guilty in a court of law, yet all of this government backed surveillance is ongoing... So if legally we were innocent when this happened and no court issues a legal warrants have been issued prior to all of it being fruit of the poison tree.... You get the idea.
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Anonymous Coward, 10 Mar 2015 @ 1:14pm

Future quote from ruling
"All the Wikimedia Foundation managed to do was prove that people claim that spying occurs on them. However, no harm occurred, nor can it even be proven such spying occurs. Therefore, the court dismiss the case as the Wikimedia Foundation has no standing to sue the government... but [it] does have standing to sue either the Russian Federation or Edward Snowden."
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Rekrul, 10 Mar 2015 @ 3:45pm

However, the fact that the US government effectively misled the Supreme Court last time around at least suggests that maybe it will be open to revisiting the issue this time around.

Yeah, and maybe the city will let me stop paying taxes...

More than likely they will argue that the leaked documents are still classified and therefore can't be used in court.
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wavettore, 11 Mar 2015 @ 12:26am

The Two Hands
The Two Hands

Also visible in the Animal kingdom, the brutal Strength is no better or worse than the deadly Deception.

Two are the Hands to cross and shape our World
to mold It like a vase of clay and put their own seal
the scepter of command, illusion of reward
to drive at will one Destiny with no steering wheel.

In the last World war, the Hand of Strength and Hand of Deception have crossed once again.
Strength personified by the Axis and Deception by the Allies.
Gestapo versus CIA.
One long scar still bleeds over this Planet.
With Strength defeated, the winners of the War have extended their cunning Hand, robbed the whole World and transformed each town in a place where Deception is the only reality.
Two new blocks were soon formed right after the War.
UK and USA celebrated Capitalism while Russia instead was infatuated with Communism.
The Two Hands had only changed gloves.

In the Animal World in which we live, those Two Hands belong today to the CIA which is a virtual State independent from any government and precursor of a New World Order.
There should be no doubt in regard to whom are masters of Strength and Deception and who is the Beast at the top of this Animal kingdom.
Although a New World Order will also be the natural end game only for a Humankind that will continue on the same footsteps and go on to believe at the same values.
The alternative is a drastic change and repudiation of the single Animal Law to turn the page in the book of Destiny.

http://www.wavevolution.org/en/humanwaves.html
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Uriel-238 (profile), 11 Mar 2015 @ 2:36pm

The DoJ is a direct recipient of the benefits of NSA surveillance.
Given that, how can any court within the DoJ be impartial?

I'm expecting a sure, whatever, court rules in favor of the defense because reasons verdict.
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- GEMont (profile), 14 Mar 2015 @ 2:30am
  
  Re: The DoJ is a direct recipient of the benefits of NSA surveillance.
  Or, to put the chances of Wikimedia successfully suing the NSA, another way:
  
  Snowflake.
  Meet Hell.
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Anonymous Coward, 25 Apr 2015 @ 6:22pm

Bigger donation than usual from me this year to Wikimedia Foundation.
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