Wikimedia v. NSA

March 10, 2015 12:22 PM

Today, the Wikimedia Foundation is filing suit against the National Security Agency (NSA) and the Department of Justice (DOJ) of the United States. The lawsuit challenges the NSA’s mass surveillance program, and specifically its large-scale search and seizure of internet communications — frequently referred to as “upstream” surveillance.
posted by pashdown (39 comments total)

Well, I'm sure the court will rule against the NSA. Especially all the originalists on the court.
posted by entropicamericana at 12:39 PM on March 10, 2015 [2 favorites]

Am I the only one getting a sense of wag the dog here?
posted by NoxAeternum at 12:40 PM on March 10, 2015

Interesting paragraph on standing: In 2013, the U.S. Supreme Court dismissed a previous challenge to the FAA, Amnesty v. Clapper, because the parties in that case were found to lack “standing.” Standing is an important legal concept that requires a party to show that they’ve suffered some kind of harm in order to file a lawsuit. The 2013 mass surveillance disclosures included a slide from a classified NSA presentation that made explicit reference to Wikipedia, using our global trademark. Because these disclosures revealed that the government specifically targeted Wikipedia and its users, we believe we have more than sufficient evidence to establish standing.

EFF is not involved in this. Maybe because of their own lawsuits First Unitarian Church of Los Angeles v. NSA and Jewel v. NSA
posted by larrybob at 12:44 PM on March 10, 2015 [1 favorite]

A friend of mine works for WMF and shared this on fb earlier. Same thing as I said to him: shame this is going to go exactly nowhere.

Even if the suit proceeds into an actual courtroom, the NSA is going to claim NATIONAL SECURITY TERRRRRRRISTS and poof. And the general public doesn't care.

Still, tilt away at those windmills. One will fall, eventually. Maybe.
posted by feckless fecal fear mongering at 12:52 PM on March 10, 2015 [3 favorites]

Other NSA news from today: a long story on the Intercept about the CIA targeting Apple devices, from the ever-giving Snowden documents.

Monitoring the entire world was one thing, but targetting my precious iPad? Shit just got real.
posted by Noisy Pink Bubbles at 12:57 PM on March 10, 2015 [3 favorites]

Are there people actually more scared of terrorists than National Security anymore? I really, really hate that Bin Laden won. And that the people whose asses he kicked don't even realize it.
posted by umberto at 12:58 PM on March 10, 2015 [11 favorites]

Am I the only one getting a sense of wag the dog here?

In what way?
posted by a lungful of dragon at 1:20 PM on March 10, 2015 [1 favorite]

Am I the only one getting a sense of wag the dog here?

In what way?

In the "we just got our hindquarters handed to us over our shitty and Byzantine policies, so let's throw up the usual rally flag and see if we can get everyone to forget" way.
posted by NoxAeternum at 1:28 PM on March 10, 2015 [1 favorite]

So much cynicism. I'm delighted Wikipedia is taking this step. They're the perfect company to do it. They're a high profile website everyone knows and everyone in the world uses. Their information is almost entirely innocuous. And generic. They are the ideal business to show how harmful the NSA's mass illegal surveillance is. My only slight concern is they're a non-profit; no doubt more people would rally if part of the case included how much money was lost.

Yes, it's unlikely they will win the case. But there's a lot of value in forcing this kind of issue in the open, in the courts. It puts the federal government on record. It means the issue doesn't go away, forgotten. It lifts the question up to one of civil liberties and not just some swept-under-the-rug legacy of Snowden.

I'm curious exactly under which argument DoJ will try to get this thrown out before trial.
posted by Nelson at 1:32 PM on March 10, 2015 [8 favorites]

In the "we just got our hindquarters handed to us over our shitty and Byzantine policies, so let's throw up the usual rally flag and see if we can get everyone to forget" way.

Maybe it's just me, but lawsuits are expensive, time-consuming and not something I get the sense that a non-profit like the Wikimedia Foundation would probably take on frivolously. Especially when it involves essentially picking a fight with one of the world's more belligerent governments, where this issue is concerned.
posted by a lungful of dragon at 1:42 PM on March 10, 2015 [2 favorites]

Have the Snowden documents been used as evidence in a court challenge yet? My expectation is that the government will argue that they're either inadmissible or unverifiable, but I confess I don't know if that's already been tested.
posted by Holy Zarquon's Singing Fish at 1:46 PM on March 10, 2015 [1 favorite]

I'm curious exactly under which argument DoJ will try to get this thrown out before trial.

Probably the ancient doctrine of "we've got pictures from the district judge's family's cellphones."
posted by resurrexit at 1:49 PM on March 10, 2015 [3 favorites]

I'm curious exactly under which argument DoJ will try to get this thrown out before trial.

But seriously, it'll probably be deemed non-justiciable (either on the basis of the plaintiff's lack of standing as others have noted above or, equally likely, the ever-expanding state secrets privilege).
posted by resurrexit at 1:52 PM on March 10, 2015

on the basis of the plaintiff's lack of standing as others have noted above

Where was this noted? I searched the page for "standing" and only found the quote from WMF explaining why they believe they do have standing.

I thought they're reasoning sounded legit & I'm curious how their claim to have sufficient standing could be challenged.
posted by univac at 1:55 PM on March 10, 2015

Other NSA news from today: a long story on the Intercept about the CIA targeting Apple devices, from the ever-giving Snowden documents.

That's a really interesting piece. Like the writer, I also wonder how they would distribute hacked Xcode installations to developers whose apps they want to compromise. Perhaps the CIA and NSA have hooks into the CDNs that Apple and other companies use to distribute their software.
posted by a lungful of dragon at 2:09 PM on March 10, 2015

I'm curious exactly under which argument DoJ will try to get this thrown out before trial.

1. Standing. Wikimedia will have to prove it was surveilled.

2. Smith v Maryland tells us that there's no constitutionally protected privacy interest in metadata .
posted by jpe at 2:18 PM on March 10, 2015

Maybe it's just me, but lawsuits are expensive, time-consuming and not something I get the sense that a non-profit like the Wikimedia Foundation would probably take on frivolously. Especially when it involves essentially picking a fight with one of the world's more belligerent governments, where this issue is concerned.

Where did I say that this was done frivolously? Said fiasco did some serious damage to the reputation of Wikimedia, and since I seriously doubt they're willing to clean up the mess that was revealed, the only option left is to do something to make everyone forget. This lawsuit would fit the bill perfectly.
posted by NoxAeternum at 2:20 PM on March 10, 2015

2. Smith v Maryland tells us that there's no constitutionally protected privacy interest in metadata .

This should not be relevant in the current case, because Wikimedia is challenging the "upstream" collection of raw communications data from the Internet.
posted by Holy Zarquon's Singing Fish at 2:22 PM on March 10, 2015

univac, this report from the Guardian seems relevant to the issue of standing:

ACLU, PEN and others have previously challenged the NSA’s warrantless wiretapping programme. The supreme court dismissed that case, Clapper v Amnesty, in February 2013, months before Snowden’s revelation. The justices rejected the case in a 5-4 vote on grounds that the plaintiffs had failed to prove that they had been subject to spying and were “based too much on speculation”.

posted by Little Dawn at 2:31 PM on March 10, 2015 [1 favorite]

I've never paid too close attention to the NSA stuff, but it appears the issue is whether the capture of communications of US persons that is incidental to the otherwise lawful capture of foreign communication is constitutional.

Can anyone that follows this stuff confirm that that's the relevant issue?
posted by jpe at 2:40 PM on March 10, 2015

Little Dawn, Wikimedia's blog post references that as well, and now they're claiming that because the NSA specifically targeted Wikipedia, according to a Snowden slide, they are on stronger ground to assert standing.

I wonder if the US gov has acknowledged the authenticity of that specific Snowden doc & whether that might be an issue for establishing standing.
posted by univac at 2:43 PM on March 10, 2015 [1 favorite]

univac: I don't think they've ever disputed the authenticity of the Snowden documents. That's somewhat different than acknowledging the authenticity, however.

I'm pretty sure their general response to direct questions about the documents is that they don't discuss such things.
posted by el io at 3:11 PM on March 10, 2015 [1 favorite]

Often the people answering the questions aren't even allowed to look at the Snowden docs. Which is insane, but there you are.
posted by Holy Zarquon's Singing Fish at 3:17 PM on March 10, 2015 [1 favorite]

I wonder if the current charges pending against Edward Snowden can serve as an acknowledgment of the authenticity of the documents...

There also has been some general acknowledgement by former officials (and fwiw, both reports are by Ken Dilanian), and despite the official ban due to concerns that include how "[t]he use of such information in a publication can confirm the validity of an unauthorized disclosure," Director of National Intelligence James Clapper also seems to have acknowledged at least some of the surveillance, noting "I probably shouldn’t say this, but I will."

We're through the looking glass here, people...
posted by Little Dawn at 4:26 PM on March 10, 2015

The Ken Thompson Hack. This is what the CIA was trying to do to Apple:

Ken describes how he injected a virus into a compiler. Not only did his compiler know it was compiling the login function and inject a backdoor, but it also knew when it was compiling itself and injected the backdoor generator into the compiler it was creating. The source code for the compiler thereafter contains no evidence of either virus.

Assholes.
posted by jenkinsEar at 6:18 PM on March 10, 2015 [2 favorites]

I'm curious how their claim to have sufficient standing could be challenged.

Law Student, not Lawyer, but. Standing isn't usually a thing you have to "challenge", it's a thing that the plaintiff needs to prove. To show that you have standing is to show that the thing you are suing about is making your life worse, and winning will make your life better. For the purposes of standing, "better" and "worse" pretty much just mean $. If the negative/positive impact on your life can't be put into a $, the court basically says "nothin' we can do for you here". This is usually not an issue, because people sue for money. Suing for money damages solves the standing issue. But the Plaintiffs in these cases (EFF, Wiki, etc.) don't want money, they want injunctions to force the gov't program to stop. And if they sue for money and an injunction, they'll solve the standing issue, but if/when they win the court will just give em money and not the injunction, and the NSA will keep on truckin'. And then, because you can't sue over the same issue twice, that'll be the end of it for those plaintiffs.

Other cases decided on standing grounds: LA v. Lyons, which found that b/c a man who had previously been choked out by the cops couldn't prove that he was likely to be choked out again, the court couldn't make the LA cops stop using chokeholds. Also the Dred Scott decision. other cases
posted by DGStieber at 7:02 PM on March 10, 2015 [2 favorites]

If the negative/positive impact on your life can't be put into a $

...

1) NSA spied on Wikipedia/Wikimedia users
2) NSA spying negatively affected the quality and/or quantity of contributions to Wikipedia/Wikimedia
3) That quality and/or quantity loss negatively affected the final products of Wikipedia/Wikimedia.
4) That dip in product quality negatively affected the amount of $ the organization was able to raise.

I am nowhere near a lawyer but there is your $. I didn't read the whole complaint, but it says about that on page 4-5 (PDF link).

And I (think I) understand what you're saying is that:

1) Wikimedia needs to prove standing
2) Only way it can prove standing is by suing for $ damages (with/wo injuction)
3) Government pays $ damages, keeps on "truckin'" (i.e. spying on Americans and foreigners)

Sounds about par for the course.
posted by mrgrimm at 9:42 PM on March 10, 2015

As to Smith v. Maryland (1979), the Atlantic notes that there already has been some judicial pushback, and the Washington Post reports that some federal district courts have adopted a "mosaic theory" of the Fourth Amendment, which may turn out to be one of the key concepts supporting judicial action against mass surveillance.

The Washington Post also reports on a unanimous U.S. Supreme Court decision about warrantless GPS surveillance by law enforcement, and while national security is a different legal arena, there does appear to be increasing judicial recognition (NYT) as to the implications of surveillance technology for fundamental privacy rights.

Also, a very thorough textbook about the complex legal issues related to getting cases like Wikimedia v. NSA into and through the U.S. court system is National Security Law by Stephen Dycus, et al. The introduction to a previous edition includes a quote from United States v. Robel, 389 U.S. 258, 264 (1968):

[T]his concept of "national defense" cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term "national defense" is the notion of defending those values and ideals which set this Nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution .... It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties ... which make the defense of the Nation worthwhile.

Ironic is one way to put it...
posted by Little Dawn at 10:07 PM on March 10, 2015 [1 favorite]

Also, in the Atlantic article mentioned in my comment above, it is noted that in Judge Leon's decision, "There is more, much more, about standing. Not until page 42 of the 68-page ruling does the judge move on from it."

And let's keep in mind that Wikimedia v. NSA is not only about Wikimedia. There are multiple plaintiffs, including lawyers and journalists, who also have distinct functions in our democracy that are compromised by mass surveillance. From attorney Mikki Barry:

We have all been put on notice that the NSA has forced Google and other Internet Service Providers to turn over information, without court order, have been forced to build back doors into their systems, and that almost any analyst with the right clearance can read the information stored on these third party based systems. As attorneys, each one of us should be screaming bloody murder about this potential breach of attorney/client privilege at its very core. It’s not that it is “possible” to get our privileged information, our work product through Google Apps, both the “metadata” and the content of our correspondence, etc., it has already happened, and continues to this day. We KNOW our communications have been compromised. The question now is what to do about it.

While the cost of a worthless law degree might be worth suing over, if the practice of law becomes obsolete due to mass surveillance, there are grounds for a lawsuit beyond the financial costs of surveillance, and this Harvard Law School blog post emphasizes that point in its discussion of the "kill all the lawyers" quote:

It comes from Shakespeare (2 Henry VI, Act IV, Scene 2), in which there is a conspiracy to establish a dictatorship. The plotters are boasting about how they will make everybody bow down to them. That is when one of the conspirators chimes in, “The first thing we do, let’s kill all the lawyers.” His goal was to destroy the law, so that the citizens would have no legal protection.

I think that's why the complaint is only seeking declaratory and injunctive relief, not money damages. Our fundamental rights are priceless, and we can, at least in theory, enjoin the government from depriving us of those rights.
posted by Little Dawn at 10:44 PM on March 10, 2015 [1 favorite]

I just don't see how they're going to get over the standing hurdle. This is clearly a generalized grievance and they know it. The slide they hold up as an example of specific harm instead shows the opposite: it's just a general list of websites given as examples to illustrate why they're interested in HTTP. It's a huge stretch to argue that this proves Wikipedia is a specific target rather than just an example like CNN on the same slide.
posted by Sangermaine at 11:01 PM on March 10, 2015 [1 favorite]

generalized grievance

Maybe a class action lawsuit is a better way forward.
posted by a lungful of dragon at 11:23 PM on March 10, 2015

The Intercept has this quote from Patrick Toomey, an ACLU attorney:

The Snowden documents, and subsequent admissions by the government, said Toomey, “have made clear that the government it not just monitoring targets, but that in order to find the communications of those targets it is monitoring the communications of nearly everyone. That broadens the scope of the surveillance at issue, and removes some of the obstacles [to getting standing] that we encountered in the previous case.”

Reuters also discusses the issue of standing and the state secrets privilege.

With regard to standing, it seems like the 'generalized' nature of the surveillance is the harm. It also seems individualized and specific to the plaintiffs if the surveillance means that journalists and lawyers can't provide confidentiality, and Wikimedia and human rights organizations can't provide anonymity, because all of those groups require freedom from warrantless surveillance to function.
posted by Little Dawn at 11:39 PM on March 10, 2015

Problem is that the Supreme Court in Clapper was very clear that you need to prove that you definitely were or definitely will be the target of surveillance in order to challenge the program. Chilling effects aren't good enough (even though I absolutely agree that they should be. Samuel Alito gets a vote on that issue and I don't).
posted by Holy Zarquon's Singing Fish at 6:32 AM on March 11, 2015 [1 favorite]

How Brennan’s CIA Plan Facilitates Future Wars Based on Lies
posted by jeffburdges at 12:01 PM on March 11, 2015

The NSA Has Taken Over the Internet Backbone. We're Suing to Get it Back.
posted by AElfwine Evenstar at 3:11 PM on March 14, 2015 [1 favorite]

New Zealand used NSA spy system XKEYSCORE to target government officials and an anti-corruption campaigner
posted by jeffburdges at 2:24 AM on March 15, 2015

Maybe a class action lawsuit is a better way forward.

How about a class action involving all citizens of the US?
posted by LizBoBiz at 12:26 PM on March 17, 2015

On compromising app developers to go after their users
posted by homunculus at 2:36 PM on March 17, 2015 [2 favorites]

Poll: Third of Americans shield data from government

Create an anonymous TextSecure and RedPhone phone number

How to make a secret phone call
posted by jeffburdges at 9:24 AM on April 4, 2015