I HONESTLY DIDN’T KNOW the A.C.L.U. was still among us, the living, but here they are, in the news, participating in a cause of action against the N.S.A. How wonderfully refreshing! It seems the Wikimedia Foundation, the nonprofit supporting Wikipedia, has petitioned the U.S. Supreme Court to hear a legal challenge against the N.S.A. mass surveillance apparatus that monitors the communications of Americans with persons abroad. The A.C.L.U., along with the Knight First Amendment Institute, and Cooley LLP, are representing the petitioner. Wikipedia, begun in 2001, is allegedly the 13th most popular website in the world.
This involves so-called “Upstream” surveillance, which enables the N.S.A. to intercept internet messages, private emails, and web communications without securing a warrant, pursuant to Sec. 702 of the Foreign Intelligence Surveillance Act. The only requirement is the target must be located outside the U.S.A. The power is broad, and allows the N.S.A. to observe what people everywhere read, or write, online, including, of course, what pages they access on Wikipedia. Wikimedia argues, convincingly, that the surveillance has had a chilling effect on users of the website. Among other things, data shows that traffic has decreased on Wikipedia about sensitive or controversial topics. (This may also have to do with Wikipedia’s bias, acknowledged even by co-founder Larry Sanger, but I digress…)
The Senior Legal Manager at the Wikimedia Foundation, James Buatti, stated the obvious: “The NSA’s mass surveillance is a threat to the fundamental rights to privacy and free expression for the hundreds of millions of people worldwide who rely on Wikipedia and other Wikimedia projects for reliable information.” Hopefully, the Supreme Court will agree, and review the case.
Almost a year ago, the U.S. Court of Appeals for the Fourth Circuit dismissed Wikimedia’s case, holding that the “state secrets privilege” was a sufficient claim to dismiss the case in favor of the N.S.A. By contrast, Wikimedia argues that the court should have simply excluded “secret” evidence while still allowing the case to proceed. That seems more than reasonable since the case wasn’t seeking to eliminate “state secret privilege;” it was, instead, seeking to abridge upstream surveillance under the First and Fourth Amendments. If the case is heard, and there may be an appetite for doing so among enough justices, it could be as early as October. The Petition for Writ of Certiorari is here.
sua sponte 