Wikipedia challenge to NSA surveillance weighs privacy violation and proper targeting

What are the basics of Wikipedia's lawsuit against the National Security Agency? In a nutshell, the popular free-knowledge product believes the NSA surveillance of its foreign-based users is discouraging free speech for all people who use Wikipedia.

On March 10, 2015, the Wikimedia Foundation (the operator of Wikipedia), along with several human rights and media organizations, filed suit called Wikimedia Foundation, et al. v. National Security Agency in the District Court of Maryland.

This lawsuit followed in the wake of the Edward Snowden leaks, and it alleges unconstitutional NSA surveillance practices. Specifically, Wikimedia and the plaintiffs say that known NSA surveillance of website users in other countries is discouraging online participation, and “undermines their ability to carry out activities crucial to their missions.”

Wikimedia and the remaining plaintiffs, represented by the American Civil Liberties Union, claim that the NSA’s “upstream” surveillance practices violate free speech and privacy rights and exceed the agency’s authority under the Foreign Intelligence Surveillance Act (or FISA).

Under Section 702 of the FISA Amendments Act of 2008 (FAA), “the Attorney General and the Director of National Intelligence may authorize…the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.”

Allegedly under the authority of the FAA, the NSA has been using “upstream” surveillance of communications of foreign and domestic persons. This type of surveillance involves seizing and searching internet communications (including emails, webpages, and instant messages) as they travel across the internet “backbone” of cables, switches, and routers. These text-based communications are then reviewed for any references to NSA search terms relating to a foreign NSA target.

The communications seized under this practice are those of foreign and U.S. persons. The NSA does not need individualized suspicion, but rather it can seize any communication to then determine if it references a specific target.

Wikipedia depends on U.S. and international readers and contributors to keep its website going, and believes that the anonymity of users allows people to freely express their ideas on controversial topics. In an op-ed published in the New York Times on March 10, Jimmy Wales, Founder of Wikipedia, and Lila Tretikov, Executive Director of the Wikimedia Foundation, stated that, “[t]hese activities [viewing and editing Wikipedia articles] are sensitive and private: They can reveal everything from a person’s political and religious beliefs to sexual orientation and medical conditions.”

Wikimedia claims that the NSA’s unconstitutional surveillance practices chill free speech by discouraging users in countries with repressive governments to contribute for fear of identification and retribution. According to Wales and Tretikov, “[privacy] empowers us to read, write and communicate in confidence, without fear of persecution. Knowledge flourishes where privacy is protected.”

The ACLU, Wikimedia, and the remaining plaintiffs are a few amongst several organizations that have challenged the constitutionality of NSA surveillance programs exposed in the aftermath of the Snowden leaks.

Juliana Stiles is a pro bono intern at the National Constitution Center. She is also a second-year student at the University of Pennsylvania Law School.