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Newly revived Wikipedia suit could reveal secrets of NSA surveillance program

Watch out, National Security Agency: Wikipedia’s coming after you.

On Tuesday, the 4th U.S. Circuit Court of Appeals ruled 3-0 to revive a lawsuit brought by the Wikimedia Foundation — the nonprofit that operates Wikipedia — claiming that the NSA’s massive surveillance program is unconstitutional and invades people’s privacy. The case will now head back to Maryland court, and its impact could be enormous.


Not only will it likely reveal more about the secret NSA surveillance program, but it could also potentially end such surveillance, explained Jennifer Granick, director of civil liberties at Stanford Law School’s Center for Internet and Society. “This is a chance for a real challenge to the programmatic nature of the surveillance.”

“The NSA has secretly spied on Americans’ internet communications for years, but now this surveillance will finally face badly needed scrutiny in our public courts,” American Civil Liberties Union attorney Patrick Toomey said in a statement. The ACLU is representing Wikimedia and the case’s eight other plaintiffs, which include Human Rights Watch and Amnesty International USA.

“Our government shouldn’t be searching the private communications of innocent people in bulk, examining the contents of Americans’ emails and chats day in and day out,” Toomey said.

In October 2015, a federal District of Maryland judge dismissed the case after ruling that Wikimedia and its fellow plaintiffs couldn’t prove that their communications had been captured by the NSA’s warrantless “Upstream” collection program, which involves vacuuming up people’s communications as they fly through internet cables, switches, and routers.

But the judges of the 4th Circuit found that the NSA has probably seized at least some of Wikimedia’s communications without a warrant, due to both the sheer volume of its communications and the fact that its users span the globe — meaning Wikimedia can continue to sue the NSA for violating the 4th Amendment.


And that’s not all. “Because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the 1st Amendment,” the judges found.

“The idea that when people know that they’re being spied on, that they don’t say what they really think and they don’t read what they’re really curious about,” explained Granick, who filed an amicus brief on behalf of Wikimedia and the other plaintiffs. “They act differently, and the exercise of the freedom of speech and the freedom to read are curtailed or chilled as a result of this feeling that you’re being spied on.”

This is not the only pending legal challenge to the NSA’s warrantless surveillance programs. But in the past, Granick added, groups have struggled to prove that they were spied on under specific NSA programs and statutes because there’s so little information publicly available about them. The reach of NSA’s Upstream collection program on ordinary civilians was revealed thanks to documents leaked by whistleblower Edward Snowden.

The Justice Department didn’t immediately respond to VICE News’ request for comment, but the government has claimed in past court documents that Upstream’s warrantless surveillance is authorized under Section 702 of the Foreign Intelligence Surveillance Act, which the ACLU contends is unconstitutional anyway.

However, the news isn’t all good for all the parties involved. Two of the members of the three-judge panel ruled that the case’s other plaintiffs, which include Amnesty International USA and Human Rights Watch, couldn’t prove that the NSA had also intercepted their communications. In a statement, the Wikimedia Foundation said it would work with its co-plaintiffs and the ACLU to “review the opinion and determine the next steps for our case.