Absence of Accountability: Wikimedia v. NSA and the Struggle Against Surveillance

The twenty-two years since the September 11th terrorist attacks have formed a period where the balance between state interests and individual privacy is constantly questioned in court. The case Wikimedia v. NSA, filed by the ACLU in 2015, was meant to address the constitutionality of the upstream surveillance program first revealed by Edward Snowden in 2013. Unfortunately, in February 2023, it was dismissed by the Supreme Court in its last possible avenue of appeal. Here I seek to situate Wikimedia in the wider state security versus privacy debate and critique the structural imbalance that favors the government in lawsuits meant to limit its power.

Upstream surveillance is a method of data collection used by the National Security Administration (NSA) on international communications, so named because it targets messages as they travel across the internet. The NSA can access people’s data through the main networks of internet communication, the infrastructure for which was set up in collaboration with technology companies Verizon and AT&T. The NSA can filter this vast amount of data as they wish. There is no oversight on how they can filter the data, they obtain it without a warrant, and anything filtered out is stored in a separate database for future reference (which one would require a warrant to access).

The practice of upstream surveillance was revealed by former NSA employee Edward Snowden in 2013. Part of his justification for the reveal was a 2008 Supreme Court case that ruled in favor of the federal government because the plaintiffs could not sufficiently prove that they had been spied on. Since his exposure, the government has confirmed and declassified evidence on the upstream surveillance practice, which provided the basis for Wikimedia v. NSA.

Wikimedia v. NSA is a suit filed by a collection of plaintiffs invested in protecting their international communications, including the Wikimedia Foundation, 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 The Washington Office on Latin America. They allege harms of having their information “copied, searched, and likely retained” by the NSA, which impedes the confidentiality of their communication and which they claim is a violation of their First and Fourth Amendment rights. The constitutional arguments are rather straightforward: the nature of NSA surveillance — particularly its breadth and invasiveness — impedes the rights to free expression, free association, and protection from unreasonable search and seizure.

The case gets more complicated regarding the nature of evidence and the desire to protect state secrets. The NSA’s core argument in the past eight years of litigation has been that upstream surveillance is allowed under section 702 of the FISA Amendments Act of 2008, which permits the NSA to search any foreigner likely to share intelligence information. This standard is vague at best and encompasses everything related to the United States’ foreign affairs. The NSA also argues that their current actions are compliant with the Fourth Amendment, which is an explicit requirement of the FISA Amendments Act along with an internal review process. There is, however, no solid evidence in their brief that this compliance and review actually occurs. All of these stipulations are characteristic of the free rein given to national security operations after the September 11th attacks.

Additionally, the government (and the district court) has contested the plaintiff’s claim that the NSA must be copying and retaining information; briefs by the respondent argue that this contestation interrupts Wikimedia et. al’s standing to sue in the first place, but the courts have also determined that standing to sue cannot be further litigated since it would reveal state secrets. Herein is the fundamental catch-22 of not only the Wikimedia case but the legal system’s treatment of all suits against the government: a plaintiff has the burden of proof yet is denied access to the evidence they need to make their case.

The rationale of state secrets has been used throughout the Wikimedia process to advance the government’s interests. The case was dismissed for the second time in district court in 2018, and the dismissal was upheld by the fourth circuit on the explicit grounds that while the ACLU’s existing evidence was public, further litigation could threaten the sanctity of state secrets. This begs the question of why the government would continue to use the state secrets protection if there’s publicly available information; in other words, what are they hiding? This was the basis of the ACLU’s writ of certiorari to the Supreme Court in 2022.

One amicus brief for the Supreme Court appeal filed by the Brennan Center outlines the wider concerns inherent in the state secrets defense. They argue that denying certiorari in both the Fourth Circuit and in the Supreme Court impedes judicial review and the viability of the civil litigation process, which are both essential to the rule of law. The Brennan Center adds to this argument by stating that the damage to rule of law caused by denying Wikimedia would compound on the harm caused by FBI v. Fagaza, which supported the state secrets defense the FBI used against a claim of discriminatory surveillance conducted on the basis of religious identity.

Since SCOTUS dismissed the Wikimedia appeal in February 2023, the Brennan Center could easily be proven right. While Wikimedia did not have the opportunity to set constitutional precedent in the surveillance versus privacy crisis, it clearly outlined the imbalanced power structure and catch-22 at play in this debate and confirmed the future viability of the state secrets defense.

Leo Worthington is a first-year staff writer concentrating in history and can be contacted at leo_worthington@brown.edu.