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Wikimedia Foundation v. NSA/Central Security Service

United States District Court, D. Maryland

October 23, 2015

WIKIMEDIA FOUNDATION, et al., Plaintiffs,

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          For 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.

         For 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.

         For 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, CA.

         For 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.

         For The 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, Baltimore, MD.

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         T. S. Ellis, III, United States District Judge.

         This is the latest in the recent series of constitutional challenges to the National Security Agency's (" NSA" ) data gathering efforts.[1] 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.


         The nine plaintiff organizations are as follows:

o Wikimedia Foundation (" Wikimedia" ) is a non-profit organization based in

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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 international affairs.
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.

         The six defendants are the following government agencies and officers:

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 States.


         Before 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] being

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used, or [was] about to be used, by a foreign power or an agent of a foreign power." Id. § 1805(a)(2).

         In 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" [3] 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 reasonably designed:

(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. § 1881a(i)(2)(B)(ii);
(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. § 1881a(i)(3)(A).

         In effect, an approval of government surveillance by the FISC means that the surveillance comports with the statutory requirements and the Constitution.

         Additional 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.[4] 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 " PRISM," [5]

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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 surveillance."


         Plaintiffs 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.

         Plaintiffs 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 tasked selectors.
(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.[6]

         Plaintiffs 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 ΒΆ 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 ...

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