On March 10, 2015, Wikimedia Foundation led other privacy advocates in suing the National Security Agency (NSA) and others to stop “upstream surveillance.”
In this context, “upstream surveillance” is investigation by connecting surveillance devices to internet cables, switches, and routers, tapping into the internet’s “backbone” to capture communications with “non-U.S. persons.” The access points are controlled by America’s largest telecommunications companies, such as Verizon and AT&T and in at least some instances, the surveillance is conducted by those providers for the government.
The NSA conducts upstream surveillance by virtue of the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (FAA), which authorizes the collection of communications if they are “foreign intelligence information,” including almost any information that could be interpreted as relating to national security or foreign affairs. With such a broad authority, the NSA is empowered to capture communications unconnected to a specific target and possibly entirely domestic.
Issues involving upstream surveillance are handled by a special court called the Foreign Intelligence Surveillance Court (FISC), in proceedings that are not cases with opposing parties or controversies. Here, the FISC reviews the legality of the NSA’s proposed procedures.
The suit alleges that the NSA’s surveillance far exceeds the broad authority already granted by the FAA, in violation of the 1st Amendment protection of freedom of speech and association, the 4th Amendment’s protection against unreasonable search and seizure and Article III of the Constitution by both NSA’s practice and by FISC’s limited judicial review of those practices.
Plaintiffs in the federal suit are Wikimedia, 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 Washington Office on Latin America. Defendants include the NSA, Michael Rogers, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service; Office of the Director of National Intelligence; James Clapper, in his official capacity as Director of National Intelligence; and Eric Holder, in his official capacity as Attorney General of the United States.
Plaintiff Wikimedia issued an announcement regarding the suit, stating in part: Surveillance erodes the original promise of the internet: an open space for collaboration and experimentation, and a place free from fear. Privacy is the bedrock of individual freedom. It is a universal right that sustains the freedoms of expression and association. These principles enable inquiry, dialogue, and creation and are central to Wikimedia’s vision of empowering everyone to share in the sum of all human knowledge. When they are endangered, our mission is threatened. 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 complaint can be accessed here: Wikimedia Complaint
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