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Wikimedia Foundation v. National Security Agency/Central Security Service

United States District Court, D. Maryland

August 20, 2018




         At issue in this First and Fourth Amendment suit is plaintiffs motion to compel defendants to respond to discovery requests regarding defendant National Security Agency's ("NSA") Upstream surveillance program. Specifically, plaintiff served 84 discovery requests on defendants in an effort to establish that at least one of plaintiffs communications has been intercepted, copied, and reviewed by defendants. Defendants have objected to 53 of these requests on the basis of the common law state secrets privilege and other statutory privileges, arguing that the information plaintiff seeks, if disclosed, reasonably could be expected to result in exceptionally grave damage to U.S. national security. Plaintiff now moves for an order compelling defendants to produce any information responsive to plaintiffs requests, contending that the Foreign Intelligence Surveillance Act ("FISA")[1] displaces the common law state secrets privilege and establishes procedures for the exparte and in camera review of sensitive national security information. These issues have been fully briefed and argued and are now ripe for disposition.


         A brief summary of the statutory framework pertinent to defendants' electronic surveillance efforts provides context necessary for resolution of the question presented in this case. In 1978, Congress enacted FISA in response to growing concerns about the Executive Branch's use of electronic surveillance. Specifically, Congress sought through FISA to accommodate U.S. national security interests in obtaining intelligence about foreign powers while also providing meaningful checks on the Executive Branch's ability to conduct that surveillance. In this respect, FISA created a "secure framework by which the Executive Branch may conduct legitimate electronic surveillance for foreign intelligence purposes within the context of this Nation's commitment to privacy and individual rights." S. Rep. No. 604, pt. 1, 95th Cong. 1st Sess. 15 (1977), reprinted in U.S.Code Cong. & Admin.News 1978, pp. 3904, 3916.

         A central component of this framework is the U.S. Foreign Intelligence Surveillance Court ("FISC"). FISC, a tribunal composed of eleven federal district judges designated by the Chief Justice of the U.S. Supreme Court, is charged with the review of applications for electronic surveillance. See 50 U.S.C. § 1803(a). FISA provides that, with limited exceptions, the Executive Branch cannot conduct surveillance of a foreign power or its agents absent prior FISC authorization. To obtain FISC authorization for electronic surveillance, the Attorney General must personally approve an application for surveillance, which must (i) comport with FISA's procedural requirements and (ii) establish probable cause to believe that the target of electronic surveillance is a foreign power or an agent of a foreign power and that each of the facilities at which electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power. Id. § 1805.

         FISA also establishes rules governing the use of information obtained through electronic surveillance. See Id. § 1806. Specifically, if the Government, including any State or political subdivision, intends to "enter into evidence or otherwise use or disclose" at any proceeding information obtained through electronic surveillance against an "aggrieved person"-that is, any person who has been the subject of electronic surveillance-the Government must first "notify the aggrieved person and the court or other authority" of its intent to so disclose or use the information. Id. §§ 1806(c), (d). The person against whom the evidence is to be introduced may then move to suppress the evidence obtained through electronic surveillance on the grounds that (i) "the information was unlawfully acquired" or (ii) "the surveillance was not made in conformity with an order of authorization or approval." Id. § 1806(e). FISA establishes specific procedures that courts must follow in the event (i) that the government notices its intent to use electronic surveillance information, (ii) that an aggrieved person files a motion to suppress or (iii) that an aggrieved person files "any motion... pursuant to any other statute or rule of the United States ... to discover, obtain, or suppress" information obtained from electronic surveillance. Id. § 1806(f). Specifically, the court

shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure... would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary...."


         On the basis of its ex parte and in camera review of the materials at issue, the court must determine "whether the surveillance of the aggrieved person was lawfully authorized and conducted." Id. FISA permits courts making this determination to disclose to the aggrieved person portions of the application, order, or other materials "only where such disclosure is necessary to make an accurate determination of the legality of the surveillance." Id. If, in the end, the court determines that the surveillance was not lawfully authorized or conducted, the court must suppress the unlawfully obtained evidence or otherwise grant the motion of the aggrieved person. Id. § 1806(g). If, on the other hand, the surveillance was lawfully authorized and conducted, the court "shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure." Id.

         In addition to mandating specific procedures governing the use of information obtained through electronic surveillance, FISA establishes additional checks on the Executive's use of electronic surveillance. Two such checks come by way of criminal sanctions and a civil cause of action. Specifically, FISA imposes criminal penalties on any person who intentionally "engages in electronic surveillance under color of law except as authorized by [FISA]" or "discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by [FISA.]" Id. § 1809(a)(1)-(2). FISA also provides a civil cause of action to any "aggrieved person... who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 ... against any person who committed such violation ...." Id. § 1810.

         In 2008, thirty years after FISA's enactment, Congress passed the FISA Amendments Act ("FAA"), which establishes additional procedures and requirements for the authorization of surveillance targeting persons located outside the United States. See 50 U.S.C. § l88la-g. Specifically, § 702 of the FAA[2] 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 attesting, inter alia, (i) that a significant purpose of the acquisition is to obtain foreign intelligence information and (ii) that 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. § l88la(b), (g). To approve such a certification, the FISC must determine 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 § 1881 a(i)(2)(B)(i);
(ii) to prevent the intentional acquisition of wholly domestic communications, id. § l88la(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. § l88la(i)(2)(C);and
(iv) to ensure that the procedures "are consistent with ... the [F]ourth [A]mendment," id. §1881a(i)(3)(A).

         Unlike FISA, these FAA procedures do not require the FISC to determine that probable cause exists to believe that the target of electronic surveillance is a foreign power and that each of the facilities at which electronic surveillance is directed is being used or is about to be used by a foreign power.

         The recent release of public reports and declassification of FISC opinions have revealed additional details regarding the collection of communications under § 702. For example, the government has disclosed that it conducts § 702 surveillance through two programs-PRISM and Upstream surveillance. See Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act 7 (2014) ("PCLOB Report"). The program at issue here, Upstream surveillance, involves collection of communications of persons reasonably believed to be outside of the United States "with the compelled assistance ... of the providers that control the telecommunications backbone over which [telephone and Internet] communications transit." Id. at 35. In this respect, "[t]he government 'tasks' certain 'selectors,' such as telephone numbers or email addresses, that are associated with targeted persons, and it sends these selectors to electronic communications service providers to begin acquisition." Id. at 7. The providers then assist the government in the collection of the communications associated with those selectors. See id.


         With this statutory framework in mind, it is appropriate to turn to the facts and procedural history in this case. Plaintiff Wikimedia Foundation, a non-profit organization based in San Francisco, California, operates several "wiki"-based projects and provides the contents of those projects to individuals around the world free of charge. Defendant National Security Agency/Central Security Service ("NSA") is the U.S. government agency responsible for conducting the surveillance at issue in this case. Defendant Office of the Director of National Intelligence ("ODNI") is the agency responsible for directing the activities of the U.S. intelligence community, including the NSA, and defendant Department of Justice ("DOJ") is one of the government agencies responsible for overseeing electronic surveillance. Several individual defendants are also named in their official capacities, including the Director of the NSA and the Chief of the Central Security Service, the Director of National Intelligence, and the Attorney General of the United States.

         On June 22, 2015, plaintiff, along with eight other organizations, [3] filed the Amended Complaint in this suit, challenging the legality of defendants' Upstream surveillance program pursuant to § 702 of the FAA. The Amended Complaint alleges that this program violates (i) the Administrative Procedure Act ("APA"), (ii) the Fourth Amendment to the Constitution, (iii) the First Amendment to the Constitution, and (iv) Article III of the Constitution. The Amended Complaint seeks (i) a declaration that Upstream surveillance violates the APA and the Constitution and (ii) an injunction permanently enjoining defendants from continuing Upstream surveillance.

         On August 6, 2015, defendants filed a Motion to Dismiss pursuant to Rule 12(b)(1), Fed. R. Civ. P., arguing that none of the plaintiff organizations plausibly alleged that they were injured by the interception, copying and review of online communications via the Upstream surveillance program and thus plaintiffs lacked Article III standing to contest the legality of the program. Subsequently, on October 23, 2015, an Order and a Memorandum Opinion issued, concluding that the allegations in the Amended Complaint were too speculative to establish Article III standing and granting defendants' motion to dismiss as to all plaintiffs. See Wikimedia Found., et al, v. Nat'l Sec. Agency, 143 F.Supp.3d 344, 356-57 (D. Md. 2015), aff'd in part, vacated in part, and remanded by 857 F.3d 193 (4th Cir. 2017). Thereafter, plaintiffs appealed and the Fourth Circuit issued an opinion affirming in part, vacating in part, and remanding the case to the district court for further consideration. See Wikimedia Found., et ah, v. Nat'l Sec. Agency, 857 F.3d 193 (4th Cir. 2017). Specifically, the Fourth Circuit concluded that although the eight other organizations had failed to allege injuries sufficient to satisfy the requirements of Article III standing, Wikimedia Foundation had alleged facts "sufficient to make plausible the conclusion that the NSA is intercepting, copying, and reviewing at least some of Wikimedia's communications." Wikimedia Found, et al.., 857 F.3d at 210.

         Shortly after the Fourth Circuit remanded the case to the district court for further proceedings, the parties submitted briefs on how to proceed in the case. Defendants indicated their intent to continue to challenge plaintiffs Article III standing and argued that any discovery should be bifurcated to allow for resolution of the standing question prior to resolution of the merits. Plaintiff opposed defendants' proposed discovery plan, contending that the jurisdictional facts at issue here are so intertwined with the merits as to require simultaneous discovery and summary judgment briefing on both questions. On October 3, 2017, an Order issued, directing the parties to conduct a limited five-month period of jurisdictional discovery prior to full discovery on the merits. See Wikimedia Found, v. Nat'l Sec. Agency, l:15-cv-662 (D. Md. Oct. 3, 2017) (Order).

         The parties then proceeded to engage in the limited discovery as directed. Plaintiff served 84 requests for admission, interrogatories, and requests for production on defendants, seeking what plaintiff describes as three broad categories of information: (i) direct evidence that Wikimedia has been surveilled, (ii) definition of key terms used in describing Upstream surveillance to the public, and (iii) evidence concerning the scope and breadth of Upstream surveillance.[4] Defendants responded to several of these discovery requests by producing 500 pages of unclassified documents, but objected to 53 of plaintiffs requests on the basis of privilege. In particular, defendants asserted that the information sought by plaintiff was protected by the common law state secrets privilege and other statutory privileges regarding the protection of national security information. In this respect, defendants submitted the unclassified declaration of Daniel Coats, the Director of National Intelligence, formally invoking the state secrets privilege on the basis of his personal consideration of the risks associated with disclosure of the information plaintiff seeks. Defendants also submitted a classified declaration of George C. Barnes, the Deputy Director of the NSA, providing additional detail concerning the harm to national security that would be caused by disclosure of the information contained in plaintiffs discovery requests.

         Subsequently, on March 26, 2018, plaintiff filed the Motion to Compel at issue here pursuant to Rule 37(a)(3), Fed.R.Civ.P. Plaintiff contends that where, as here, a party moves to discover material relating to electronic surveillance, the court must follow FISA's § 1806(f) procedures and conduct an ex parte and in camera review of the materials relating to electronic surveillance. Plaintiff argues that these procedures apply despite defendants' assertion of state secrets privilege because in enacting FISA, Congress intended to displace the common law state secrets privilege. And even assuming the state secrets privilege was not displaced by FISA, plaintiff argues that the privilege does not bar disclosure of the information at issue here given the amount of information concerning Upstream surveillance already in the public record.

         Defendants oppose plaintiffs motion, arguing (i) that § 1806(f) does not apply where, as here, plaintiff has not yet established that it is the target of electronic surveillance and (ii) that even assuming § 1806(f) does apply here, there is no clear statement indicating Congress's intent to displace the common law state secrets privilege through enactment of FISA. Finally, defendants contend that the government's assessment of the national security risks associated with disclosure of ...

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