On Thursday, 30 May, Wikimedia Foundation lawyers were in a courtroom in Alexandria, Virginia, to watch oral arguments in our ongoing case against the United States government’s mass surveillance practices. As our counsel from the American Civil Liberties Union (ACLU) rose to stand before the Judge, we rehearsed in our heads the arguments we knew our team had prepared, eager to hear them play out in real time.
Just over four years ago, Wikimedia joined eight co-plaintiffs in filing a lawsuit against the US National Security Agency. We detailed how the NSA’s Upstream mass surveillance practices violate both the U.S. Constitution and the federal law that supposedly authorizes the surveillance. The U.S. government sought to dismiss the case, arguing that none of the plaintiffs had standing—that is, the right to have their claims heard in court. In October of that year, District Court Judge T.S. Ellis, III granted the government’s motion. The Foundation and our co-plaintiffs appealed to the Court of Appeals for the Fourth Circuit, which overturned the lower court ruling in May 2017, but only as to the Foundation. The case would proceed, but Wikimedia would go it alone.
Two years later, following a long discovery process, Patrick Toomey—one of the ACLU lawyers—again stood before Judge Ellis. And again, the topic of the day was standing. Toomey was prepared to argue that Wikimedia could proceed as a plaintiff because we had presented extensive evidence that our communications are subject to Upstream surveillance. This evidence includes the government’s own official disclosures about the scope of this surveillance, as well as testimony from an internet networking expert.
As the movant, the U.S. government presented its case first. It argued that the Foundation had not provided sufficient evidence for the lawsuit to continue. It also claimed that the case could not proceed because doing so would require the court to consider information the government claims is protected by the state secrets privilege. In other words, the government alleged that disclosing certain information about Upstream surveillance would harm national security—and, since that information cannot be produced as evidence, the entire case must be dismissed.
Next, Toomey presented Wikimedia’s arguments, clearly and concisely laying out the case while fielding questions from the judge about topics such as our expert declaration and the legal criteria for establishing standing. Toomey also explained that the state secrets privilege does not apply, because the Foreign Intelligence Surveillance Act created a process by which courts must review review privileged information in electronic surveillance cases such as ours. If the government seeks to rely on privileged information for its defense, it cannot withhold that information from the court and argue for the dismissal of Wikimedia’s lawsuit on that basis. Instead, FISA’s procedures apply, and the court is required to examine the government’s sensitive evidence behind closed doors.
And now we wait. The court will likely issue a ruling soon as to whether or not the case can proceed to the merits. At the next stage of the case, the judge may review the government’s evidence about Wikimedia’s standing in camera, relying on FISA’s procedures. If the court concludes that the case can proceed, Wikimedia would at last be able to present our arguments about the NSA’s activities, and demonstrate why the interception of Wikimedia’s internet communications is a violation of the law. It has been a long road, and we are grateful for the hard work and wisdom of our pro bono counsel at the ACLU, the Knight First Amendment Institute, and Cooley, LLP. We continue to look forward to the opportunity to present the merits of our case in court.
When the court’s ruling is announced, we will update our communities on the outcome and next steps. For more information, you can always visit our landing page on the case or the ACLU’s website. As Toomey observed, reflecting on the hearing, “The government’s own public disclosures establish that Wikimedia is subject to Upstream surveillance and has standing to challenge it. Congress authorized the public courts to hear cases challenging unlawful surveillance, recognizing that judicial oversight is essential to accountability. The case should now go forward for the court to determine whether the NSA’s spying is lawful.”