NSA’s “state secrets” defense kills lawsuit challenging Internet surveillance

SCOTUS won't review Wikimedia's loss in case over NSA's Upstream surveillance.

The US Supreme Court yesterday denied a petition to review a case involving the National Security Agency's surveillance of Internet traffic, leaving in place a lower-court ruling that invoked "state secrets privilege" to dismiss the lawsuit.

The NSA surveillance was challenged by the Wikimedia Foundation, the American Civil Liberties Union, and the Knight First Amendment Institute at Columbia University. The Supreme Court's denial of Wikimedia's petition for review (formally known as "certoriari") was confirmed in a long list of decisions released yesterday.

"As a final development in our case, Wikimedia Foundation v. NSA, the United States Supreme Court denied our petition asking for a review of the National Security Agency's (NSA) mass surveillance of Internet communications and activities. This denial represents a big hit to both privacy and freedom of expression," the Wikimedia Foundation said yesterday.

The lawsuit challenged the NSA's "Upstream" surveillance program in which "the NSA systematically searches the contents of Internet traffic entering and leaving the United States, including Americans' private emails, messages, and web communications," the Wikimedia Foundation said. "The Supreme Court's refusal to grant our petition strikes a blow against an individual's right to privacy and freedom of expression—two cornerstones of our society and the building blocks of Wikipedia," Wikimedia Foundation Legal Director James Buatti said.

Litigation would “risk disclosure of state secrets”

A September 2021 ruling by the US Court of Appeals for the 4th Circuit affirmed a US district court's decision to throw out the lawsuit. As the appeals court ruling noted, the district court found that Wikimedia didn't have standing to pursue the case "and that further litigation would unjustifiably risk the disclosure of state secrets."

"Although the district court erred in granting summary judgment to the government as to Wikimedia's standing, we agree that the state secrets privilege requires the termination of this suit," the 4th Circuit panel of appeals court judges said in a 2-1 ruling. The 4th Circuit subsequently denied Wikimedia's motion for an en banc rehearing in front of all the court's judges, and Wikimedia sought Supreme Court review in August 2022.

The Wikimedia petition for Supreme Court review argued that the appeals court "was wrong to dismiss the lawsuit on the basis of the state secrets privilege and that the court should have, instead, excluded any secret evidence, but allowed the case to proceed," the groups challenging NSA surveillance said at the time.

Wikimedia and fellow plaintiffs argued they could prove their case based on the government's public disclosures about the surveillance program.

"It is past time for the Supreme Court to rein in the government's sweeping use of secrecy to evade accountability in the courts. Upstream surveillance is no secret, and the government's own public disclosures are the proof," Patrick Toomey, deputy director of the ACLU's National Security Project, said when the petition for Supreme Court review was filed. "Every day, the NSA is siphoning Americans' communications off the Internet backbone and into its surveillance systems, violating privacy and chilling free expression. The courts can and should decide whether this warrantless digital dragnet complies with the Constitution."

DOJ: No proof that NSA monitors everything

The Wikimedia petition said the Supreme Court should determine whether state secrets privilege allows courts "to dismiss actions in their entirety where plaintiffs can prove their case without reliance on privileged evidence" and whether a court may dismiss such a lawsuit "without first determining ex parte and in camera whether the privileged evidence establishes a valid defense."

The Department of Justice, urging the Supreme Court to reject the petition for review, said the publicly available evidence doesn't support Wikimedia's claim that the agency copies and reviews all Internet communications:

"Every trial and appellate judge who has reviewed the voluminous summary-judgment record in this case has concluded that petitioner failed to show that the NSA must necessarily copy and review all Internet communications at an Upstream surveillance location. And because petitioner ultimately acknowledged that it is "technically feasible to conduct Upstream surveillance without copying all communications on a monitored link," petitioner needed to establish instead that the NSA "by choice" has been "copying all transactions on a monitored link." But petitioner submitted no evidence documenting the actual operational details of the NSA's Upstream surveillance activities, and the 2011 FISC [Foreign Intelligence Surveillance Court] opinion on which petitioner relied does not reflect that the NSA was copying "all" such transactions."

 

Wikimedia's "standing theory depends on its view that the NSA is 'copying all [Internet] transactions on a monitored [international Internet] link,'" the DOJ response also said. Litigating whether that assertion is correct would require establishing how the Upstream surveillance works, the DOJ said.

"If a court were either to dismiss or decline to dismiss based on its resolution of petitioner's factual assertion after reviewing the government's privileged (and highly classified) evidence on the matter, the dismissal would effectively reveal sensitive intelligence matters—state secrets—that cannot be publicly confirmed or denied without significant harm to the national security," the DOJ argued.

Wikimedia turns attention to Congress

Wikimedia's reply brief said the 2011 FISC opinion "explained that the government 'readily concedes' it 'will acquire' communications transiting international Internet links being monitored by the NSA if those communications contain a targeted selector... as the panel majority acknowledged, the NSA's concession to the FISC would only be true if the NSA were copying and reviewing all communications on international Internet links, including Wikimedia's communications."

"The government contends that the FISC opinion did not state that the NSA 'acquires' all communications transiting international Internet links. But this is beside the point," Wikimedia told the Supreme Court. "As the panel majority recognized, Petitioner's standing does not require a showing that the NSA 'acquires' (i.e., retains) Wikimedia's communications; it is sufficient that the NSA temporarily copies and searches them, in order to identify the subset associated with its thousands of targets."

Though the case is over, Wikimedia said it plans to lobby Congress for changes to the surveillance program. "We plan to direct our efforts toward urging the United States Congress to make changes to Section 702 of the Foreign Intelligence Surveillance Act in order to protect individual privacy," the group said. "Section 702 is the legislation that the NSA relies on to conduct Upstream surveillance, the very subject of our lawsuit. We hope to work together with Wikimedia communities to encourage Congress to take privacy into account when looking at reauthorization later this year."

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