The Wikimedia Foundation announced Tuesday it is filing a lawsuit against the Department of Justice and the National Security Agency over the government’s mass surveillance of Internet traffic.
“We’re filing suit today on behalf of our readers and editors everywhere,” Wikipedia founder Jimmy Wales said in a statement published on Wikimedia’s website Tuesday. “Surveillance erodes the original promise of the Internet: an open space for collaboration and experimentation, and a place free from fear.”
The nonprofit organization behind Wikipedia is joined by eight other organizations, including Human Rights Watch and Amnesty International, in the lawsuit. The American Civil Liberties Union will represent the case before the government.
“If people look over their shoulders before searching, pause before contributing to controversial articles, or refrain from sharing verifiable but unpopular information, Wikimedia and the world are poorer for it,” the statement reads.
The lawsuit appears to focus on “upstream” surveillance, as opposed to telephone records and mobile metadata collection and interception — the focus of previous lawsuits. Upstream surveillance — which occurs when the NSA directly wiretaps Internet infrastructure such as undersea cables — was officially authorized in amendments to the Foreign Intelligence Surveillance Act in 2008, but has occurred since the years immediately after Sept. 11, 2001 under an NSA program called STELLARWIND. The ACLU previously challenged the constitutionality of the law in 2012 when the amendments were up for renewal.
Such surveillance is only authorized for “non-US persons” only, however the ACLU and others have long argued that loopholes in the law allow the NSA to ignore that stipulation. In 2013, ex-NSA contractor Edward Snowden’s leak of bulk surveillance programs PRISM, MUSCULAR and others — designed to tap Internet infrastructure, websites and phone companies — proved more Americans were under more bulk, often warrantless surveillance than ever before.
“By tapping the backbone of the Internet, the NSA is straining the backbone of democracy,” Lila Tretikov, executive director of the Wikimedia Foundation, was quoted saying in the statement. “Wikipedia is founded on the freedoms of expression, inquiry, and information. By violating our users’ privacy, the NSA is threatening the intellectual freedom that is central to people’s ability to create and understand knowledge.”
According to Wikimedia and the ACLU, the government’s surveillance practices violate the First and Fourth Amendments of free speech and protection against unreasonable search and seizure. The two also stated they believe the role of the Foreign Intelligence Surveillance Court — which authorizes such surveillance and approves secret government warrants — is in violation of Article III of the U.S. Constitution, as the role of the courts is to resolve “cases” or “controversies,” “not to issue advisory opinions or interpret theoretical situations,” according to Wikimedia.
“In 2013, the U.S. Supreme Court dismissed a previous challenge to the FAA, Amnesty v. Clapper, because the parties in that case were found to lack ‘standing,’” the statement reads. “Standing is an important legal concept that requires a party to show that they’ve suffered some kind of harm in order to file a lawsuit.”
Citing a slide from the Snowden leaks in 2013 that revealed the NSA targeted Wikipedia and its users, which included Wikipedia’s trademark, the organization said it has “more than sufficient evidence to establish standing.”
The case is likely to face the same hurdles others against the NSA and DOJ have in the past. Chiefly, the plaintiffs must prove the government actively targeted individuals, and that such targeting violated their rights (in the case of non-U.S. persons, that would be none). Additionally, the government will likely argue, as it has in the past, that Wikimedia can’t prove any individuals were expressly targeted by the government’s surveillance programs.
“Over the past fourteen years, Wikimedians have written more than 34 million articles in 288 different languages. Every month, this knowledge is accessed by nearly half a billion people from almost every country on Earth,” the statement reads. “We file today on their behalf.”