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Wikimedia Wins Round Against NSA

By William Vogeler, Esq. on May 31, 2017 | Last updated on March 21, 2019

Wikimedia may continue its case against the National Security Agency for allegedly spying on users' internet communications, a federal appeals court said.

Reversing a trial court decision in Wikimedia Foundation v. National Security Agency, the U.S. Fourth Circuit Court of Appeals said the non-profit organization has standing to sue the agency for violating Fourth Amendment protections against unlawful searches. The court rejected the government's argument that Wikimedia's claims were speculative and said the foundation had alleged enough damages.

"[T]here's nothing speculative about it -- the interception of Wikimedia's communications is an actual injury that has already occurred," Judge Albert Diaz wrote.

"Internet Backbone"

Wikimedia, which supports Wikipedia and other websites in the free information movement, sued the NSA for allegedly seizing and searching communications as they travel across the internet's "backbone." The backbone is the network of high-capacity cables, switches, and routers that facilitates both domestic and international communication on the internet.

The NSA performs this "upstream surveillance" by identifying a target and the means by which the target communicates, such as e-mail addresses or telephone numbers, the complaint alleged. The agency then submits the information to telecommunications-service providers, who are required to assist the government in intercepting communications about the targets.

A trial judge dismissed the complaint, concluding that the claims were speculative. On appeal, the Fourth Circuit reversed in favor of Wikimedia but not other plaintiffs who joined in the litigation.

Fourth Amendment

Judge Andre M. Davis, in a concurring a dissenting opinion, said he would have reversed for all the plaintiffs. But the majority said only Wikimedia had actual damages.

"The allegation that the NSA is intercepting and copying communications suffices to show an invasion of a legally protected interest -- the 'Fourth Amendment right to be free from unreasonable searches and seizures,'" the court said.

Wikimedia said it operates one of the most-visited websites in the world, engaging visitors in more than one trillion international communications each year. Based on that number, Wikimedia said that even if there were only a 0.00000001% chance of NSA spying on a Wikimedia user, the odds of the invasion during a one-year period would be greater than 99.9999999999%.

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