United States District Court, D. Maryland
Wikimedia Foundation, National Association of Criminal
Defense Attorneys, Human Rights Watch, Pen American Center,
Global Fund for Women, The Nation Magazine, The Rutherford
Institute, Washington Office on Latin America, Amnesty
International USA, Plaintiffs: Alex Abdo, Ashley Marie
Gorski, Jameel Jaffer, Patrick Toomey, PRO HAC VICE, American
Civil Liberties Union Foundation, New York, NY; Charles Sims,
David Alexander Munkittrick, John Browning, PRO HAC VICE,
Proskauer Rose LLP, New York, NY; David Robert Rocah, ACLU of
Maryland, Baltimore, MD; Deborah A Jeon, American Civil
Liberties Union of Maryland Foundation, Baltimore, MD.
National Security Agency/Central Security Service, Adm.
Michael S. 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 R. Clapper, in his official capacity as
Director of National Intelligence, Department of Justice,
Loretta E. Lynch, in her official capacity as Attorney
General of the United States, Defendants: James Jordan
Gilligan, LEAD ATTORNEY, Rodney Patton, United States
Department of Justice, Washington, DC; Julia Alexandra
Berman, LEAD ATTORNEY, United States Department of Justice,
Civil Division Federal Programs Branch, Washington, DC.
CloudFlare, CloudFlare, The Tor Project, Inc., The Tor
Project, Inc., RiseUp, RiseUp, Amici: Jeffrey Landis,
ZwillGen PLLC, Washington, DC; Jennifer Stisa Granick, PRO
HAC VICE, Stanford Center for Internet and Society, Stanford,
First Amendment Legal Scholars, Amici: Emily Lange Levenson,
LEAD ATTORNEY, Brown, Goldstein & Levy LLP, Baltimore, MD;
Joshua R Treem, LEAD ATTORNEY, Brown Goldstein Levy LLP,
Baltimore, MD; Margot E Kaminski, PRO HAC VICE, Moritz
College of Law, The Ohio State University, Columbus, OH.
American Booksellers Association, American Library
Association, Association of Research Libraries, Freedom to
Read Foundation, International Federation of Library
Associations and Institutions, Amici: Andrew Gellis Crocker,
PRO HAC VICE, Electronic Frontier Foundation, San Franscisco,
CA; Jan Ingham Berlage, Gohn Hankey Stichel & Berlage, LLP,
Ellis, III, United States District Judge.
the latest in the recent series of constitutional challenges
to the National Security Agency's (" NSA" )
data gathering efforts. In this case, plaintiffs, nine
organizations that communicate over the Internet, allege that
the NSA's interception, collection, review, and storing
of plaintiffs' Internet communications violates
plaintiffs' rights under the First and Fourth Amendments
and exceeds the NSA's authority under the Foreign
Intelligence Surveillance Act (" FISA" ). Typical
of these challenges to the NSA's surveillance programs is
defendants' threshold jurisdictional contention that
plaintiffs lack Article III standing to assert their claims.
This memorandum opinion addresses the standing issue.
nine plaintiff organizations are as follows:
o Wikimedia Foundation (" Wikimedia" ) is a
non-profit organization based in
San Francisco, California, that maintains twelve Internet
projects--including Wikipedia--that provide free content to
users around the world.
o The National Association of Criminal Defense Lawyers
(" NACDL" ) is a membership organization based in
Washington, D.C., that focuses on criminal defense matters.
o Amnesty International USA, headquartered in New York City,
is the largest division of Amnesty International, which
focuses on human rights around the world.
o Human Rights Watch is a non-profit human rights
organization based in New York City.
o PEN American Center is an association based in New York
City that advocates on behalf of writers.
o Global Fund for Women is a non-profit grant-making
foundation based in San Francisco, California, and New York
City, that focuses on women's rights around the world.
o The Nation Magazine, published by The Nation Company, LLC,
is based in New York City and reports on issues related to
o The Rutherford Institute is a civil liberties organization
based in Charlottesville, Virginia.
o The Washington Office on Latin America is a non-profit
organization based in Washington, D.C., that focuses on
social justice in the Americas.
defendants are the following government agencies and
o The NSA is headquartered in Fort Mead, Maryland, and is the
federal agency responsible for conducting the surveillance
alleged in this case.
o The Department of Justice is a federal agency partly
responsible for directing and coordinating the activities of
the intelligence community, including the NSA.
o The Office of the Director of National Intelligence is a
federal agency partly responsible for directing and
coordinating the activities of the intelligence community,
including the NSA.
o Adm. Michael S. Rogers is the Director of the NSA and the
Chief of the Central Security Service.
o James R. Clapper is the Director of National Intelligence
(" DNI" ).
o Loretta E. Lynch is the Attorney General of the United
setting forth the facts alleged in the amended complaint
(" AC" ), it is useful to describe briefly the
statutory context pertinent to the NSA's data gathering
efforts. In 1978, in response to revelations of unlawful
government surveillance directed at specific United States
citizens and political organizations, Congress enacted FISA
to regulate government electronic surveillance within the
United States for foreign intelligence purposes. FISA
provides a check against abuses by placing certain types of
foreign-intelligence surveillance under the supervision of
the Foreign Intelligence Surveillance Court ("
FISC" ), which reviews government applications for
surveillance in certain foreign intelligence investigations.
See 50 U.S.C. § 1803(a). As originally enacted,
FISA required the government to obtain an individualized
order from the FISC before conducting electronic surveillance
in the United States. See id. § 1804(a). In
this respect, the FISC could issue an order authorizing
surveillance only if it found that there was " probable
cause to believe that the target of the electronic
surveillance [was] a foreign power or an agent of a foreign
power" and that " each of the facilities or places
at which the electronic surveillance [was] directed [was]
used, or [was] about to be used, by a foreign power or an
agent of a foreign power." Id. §
2008, thirty years after FISA's enactment, Congress
passed the FISA Amendments Act, which established procedures
and requirements for the authorization of surveillance
targeting persons located outside the United States.
See 50 U.S.C. § § 1881a-1881g.
Specifically, FISA Section 702, 50 U.S.C. § 1881a,
" supplements pre-existing FISA authority by creating a
new framework under which the [g]overnment may seek the
FISC's authorization of certain foreign intelligence
surveillance targeting ... non-U.S. persons located
abroad," Clapper v. Amnesty Int'l USA, 133
S.Ct. 1138, 1144, 185 L.Ed.2d 264 (2013). Section 702
provides that the Attorney General and the Director of
National Intelligence may jointly authorize, for up to one
year, the " targeting of [non-U.S.] persons reasonably
believed to be located outside the United States to acquire
foreign intelligence information"  if the FISC approves
" a written certification" submitted by the
government that attests, inter alia, that (i) a
significant purpose of the acquisition is to obtain foreign
intelligence information and (ii) the acquisition will be
conducted " in a manner consistent with the [F]ourth
[A]mendment" and the targeting and minimization
procedures required by statute. 50 U.S.C. § 1881a(b),
(g). Specifically, before approving a certification, the FISC
must find that the government's targeting procedures are
(i) to ensure that acquisition " is limited to targeting
persons reasonably believed to be located outside the United
States," id. § 1881a(i)(2)(B)(i);
(ii) to prevent the intentional acquisition of wholly
domestic communications, id. §
(iii) to " minimize the acquisition and retention, and
prohibit the dissemination, of nonpublicly available
information concerning unconsenting United States persons
consistent with the need of the United States to obtain,
produce, and disseminate foreign-intelligence
information," id. § 1801(h)(1); see
id. § 1881a(i)(2)(C); and
(iv) to ensure that the procedures " are consistent with
... the [F]ourth [A]mendment," id. §
effect, an approval of government surveillance by the FISC
means that the surveillance comports with the statutory
requirements and the Constitution.
details regarding the collection of communications under
Section 702 have recently been disclosed in a number of
public government reports and declassified FISC opinions. The
government has disclosed, for example, that in 2011, Section
702 surveillance resulted in the retention of more than 250
million communications and that in 2014, the government
targeted the communications of 92,707 individuals, groups,
and organizations under a single FISC Order. The total
number of U.S. persons' communications that the
government has intercepted or retained pursuant to Section
702 remains classified. The government has also disclosed
that the NSA conducts two kinds of surveillance pursuant to
Section 702. Under a surveillance program called "
U.S.-based Internet Service Providers furnish the NSA with
electronic communications that contain information specified
by the NSA. This case concerns the second method of
surveillance, which is referred to as " Upstream
challenge the NSA's use of Upstream surveillance,
alleging that this mode of surveillance enables the
government to collect communications as they transit the
Internet " backbone," the network of high-capacity
cables, switches, and routers that facilitates domestic and
international Internet communication. With the assistance of
telecommunications providers, Upstream surveillance enables
the NSA to copy and review " text-based"
communications-- i.e., those whose content includes
searchable text, such as emails, search-engine queries, and
webpages--for search terms called " selectors."
Importantly, selectors cannot be key words or names of
targeted individuals, but must instead be specific
communications identifiers, such as email addresses, phone
numbers, and IP addresses.
allege that Upstream surveillance encompasses the following
four processes, one or more of which is implemented by
telecommunications providers at the NSA's direction:
(i) Copying: Using surveillance devices installed at key
access points along the Internet backbone, the NSA intercepts
and copies text-based communications flowing across certain
high-capacity cables and routers.
(ii) Filtering: The NSA attempts to filter the copied data
and discard wholly domestic communications, while preserving
international communications. Because the NSA's filtering
of domestic communications is imperfect, some domestic
communications are not filtered out.
(iii) Content Review: The NSA reviews the copied
communications that are not filtered out for instances of
(iv) Retention and Use: The NSA retains all communications
that contain selectors associated with its targets and other
communications that were bundled in transit with the targeted
communications; NSA analysts may read and query the retained
communications and may share the results with the FBI.
See AC ¶ ¶ 40, 47-49.
emphasize two aspects of Upstream surveillance. First,
surveillance under that program is not limited to
communications sent or received by the NSA's targets, as
the government has acknowledged that, as part of Upstream
surveillance, the NSA also engages in what is called "
about surveillance" --the searching of Internet
communications that are about its targets. AC ¶
50. In other words, plaintiffs allege that the NSA intercepts
substantial quantities of Internet traffic and examines those
communications to determine whether they include references
to the NSA's search terms. Second, Upstream surveillance
implicates domestic communications because (i) the NSA's
filters are imperfect, (ii) the NSA sometimes ...