On The Front Lines

U.S. Supreme Court Refuses to Hear Wikimedia Lawsuit Challenging Mass Internet Surveillance of Americans by NSA

February 22, 2023

Documents

Cert petition to the U.S. Supreme Court in Wikimedia Foundation v. National Security Agency

Second opinion of the U.S. Court of Appeals for the Fourth Circuit in Wikimedia Foundation v. National Security Agency

Opinion of the U.S. Court of Appeals for the Fourth Circuit in Wikimedia Foundation et al. v. National Security Agency, et al.

Brief in Wikipedia et al. v. National Security Agency

Appeal brief in Wikipedia et al. v. National Security Agency

Amended complaint in Wikipedia et al. v. National Security Agency.

The court's memorandum opinion in Wikipedia et al. v. National Security Agency

The coalition's reply brief in Wikipedia et al. v. National Security Agency

The coalition's complaint in Wikimedia et al. v. National Security Agency.

WASHINGTON, DC —The U.S. Supreme Court has refused to hear a challenge to the federal government’s mass surveillance program. In affirming the dismissal of the Wikimedia v. NSA lawsuit, the Supreme Court has allowed the government to assert a state secrets privilege related to its domestic and international Upstream surveillance program, which gives the NSA access to massive amounts of communications data.

The lawsuit was originally filed on behalf of a coalition of educational, legal, human rights and media organizations, including The Rutherford Institute, the ACLU, the Wikimedia Foundation, Amnesty International USA, Human Rights Watch, and the National Association of Criminal Defense Lawyers.

“On any given day, the average American going about his daily business will be monitored, surveilled, spied on and tracked in more than 20 different ways, by both government and corporate eyes and ears,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Revelations about the NSA’s spying programs only scrape the surface in revealing the lengths to which government agencies and their corporate allies will go to conduct mass surveillance on Americans’ communications and transactions.”

The Wikimedia v. NSA lawsuit arose in response to efforts by the U.S. government to covertly carry out electronic surveillance and monitoring of U.S. citizens and foreign nationals in the wake of the 9/11 terrorist attacks. The lawsuit alleges that the NSA engaged in “Upstream surveillance,” which can ensnare Americans’ international communications—including emails, web-browsing content, and search engine queries—by intercepting and copying private communications in bulk while they are in transit, and then searching their contents using keywords associated with NSA targets. These targets, chosen by intelligence analysts, are never approved by any court, and the limitations that exist are weak and riddled with exceptions.

Although the suit was initially dismissed by a federal district court, which ruled that the groups did not have standing to sue the National Security Agency (NSA), the U.S. Department of Justice and their directors, on appeal, the Fourth Circuit Court of Appeals partly reversed the lower court, ruling that the existence of the government’s mass internet surveillance program would violate the First and Fourth Amendments but allowing only Wikimedia to proceed with the lawsuit. However, when Wikimedia sought discovery of evidence related to NSA’s Upstream surveillance, the district court again dismissed the lawsuit based upon the government’s assertion of the state secrets privilege, which allows the federal government to withhold information in a lawsuit if its disclosure would expose matters which should not be divulged in the interest of national security. While the NSA acknowledged that it “is monitoring . . . international Internet communications,” the NSA did not want to disclose “information concerning the scope and scale of Upstream surveillance.” The Fourth Circuit affirmed, but a dissenting opinion warned that courts should not relinquish control over a case to the caprice of the executive branch. On appeal, Wikimedia argued that the government’s increasingly broad use of the state secrets privilege without sufficient judicial oversight has prevented courts from reviewing the constitutionality of executive branch conduct.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.