On Thursday, 30 May, Wikimedia Foundation lawyers were in a courtroom in Alexandria, Virginia, to watch oral arguments in our ongoing case against the United States governmentâs mass surveillance practices. As our counsel from the American Civil Liberties Union (ACLU) rose to stand before the Judge, we rehearsed in our heads the arguments we knew our team had prepared, eager to hear them play out in real time.
Just over four years ago, Wikimedia joined eight co-plaintiffs in filing a lawsuit against the U.S. National Security Agency. We detailed how the NSAâs Upstream mass surveillance practices violate both the U.S. Constitution and the federal law that supposedly authorizes the surveillance. The U.S. government sought to dismiss the case, arguing that none of the plaintiffs had standingâthat is, the right to have their claims heard in court. In October of that year, District Court Judge T.S. Ellis, III granted the governmentâs motion. The Foundation and our co-plaintiffs appealed to the Court of Appeals for the Fourth Circuit, which overturned the lower court ruling in May 2017, but only as to the Foundation. The case would proceed, but Wikimedia would go it alone.
Two years later, following a long discovery process, Patrick Toomeyâone of the ACLU lawyersâagain stood before Judge Ellis. And again, the topic of the day was standing. Toomey was prepared to argue that Wikimedia could proceed as a plaintiff because we had presented extensive evidence that our communications are subject to Upstream surveillance. This evidence includes the governmentâs own official disclosures about the scope of this surveillance, as well as testimony from an internet networking expert.
As the movant, the U.S. government presented its case first. It argued that the Foundation had not provided sufficient evidence for the lawsuit to continue. It also claimed that the case could not proceed because doing so would require the court to consider information the government claims is protected by the state secrets privilege. In other words, the government alleged that disclosing certain information about Upstream surveillance would harm national securityâand, since that information cannot be produced as evidence, the entire case must be dismissed.
Next, Toomey presented Wikimediaâs arguments, clearly and concisely laying out the case while fielding questions from the judge about topics such as our expert declaration and the legal criteria for establishing standing. Toomey  also explained that the state secrets privilege does not apply, because the Foreign Intelligence Surveillance Act created a process by which courts must review review privileged information in electronic surveillance  cases such as ours. If the government seeks to rely on privileged information for its defense, it cannot withhold that information from the court and argue for the dismissal of Wikimediaâs lawsuit on that basis. Instead, FISAâs procedures apply, and the court is required to examine the governmentâs sensitive evidence behind closed doors.
And now we wait. The court will likely issue a ruling soon as to whether or not the case can proceed to the merits. At the next stage of the case, the judge may review the governmentâs evidence about Wikimediaâs standing in camera, relying on FISAâs procedures. If the court concludes that the case can proceed, Wikimedia  would at last be able to present our arguments about the NSAâs activities, and demonstrate why the interception of Wikimediaâs internet communications is a violation of the law. It has been a long road, and we are grateful for the hard work and wisdom of our pro bono counsel at the ACLU, the Knight First Amendment Institute, and Cooley, LLP. We continue to look forward to the opportunity to present the merits of our case in court.
When the courtâs ruling is announced, we will update our communities on the outcome and next steps. For more information, you can always visit our landing page on the case or the ACLUâs website. As Toomey observed, reflecting on the hearing, âThe governmentâs own public disclosures establish that Wikimedia is subject to Upstream surveillance and has standing to challenge it. Congress authorized the public courts to hear cases challenging unlawful surveillance, recognizing that judicial oversight is essential to accountability. The case should now go forward for the court to determine whether the NSAâs spying is lawful.â
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