In March 2015, the ACLU filed a lawsuit challenging the constitutionality of the NSA’s mass interception and searching of Americans’ international Internet communications. At issue is the NSA’s “Upstream” surveillance, through which the U.S. government monitors almost all international – and many domestic – text-based communications. The ACLU’s lawsuit was brought on behalf of nearly a dozen educational, legal, human rights, and media organizations that collectively engage in trillions of sensitive Internet communications and have been harmed by Upstream surveillance. The district court dismissed the case in October 2015, concluding that the plaintiffs lacked “standing” to sue because they had not sufficiently alleged that their communications had been intercepted. We appealed to the Fourth Circuit Court of Appeals, which in May 2017 unanimously reversed a part of the lower court’s dismissal, ruling that Wikimedia has standing to pursue its challenge.

The original plaintiffs in the lawsuit included: Wikimedia Foundation, The National Association of Criminal Defense Lawyers, Human Rights Watch, Amnesty International USA, PEN American Center, Global Fund for Women, The Nation Magazine, The Rutherford Institute, and The Washington Office on Latin America. These plaintiffs’ sensitive communications have been copied, searched, and likely retained by the NSA. Upstream surveillance hinders the plaintiffs’ ability to ensure the basic confidentiality of their communications with crucial contacts abroad – among them journalists, colleagues, clients, victims of human rights abuses, and the tens of millions of people who read and edit Wikipedia pages.

Upstream surveillance, which the government claims is authorized by the Section 702 of the FISA Amendments Act, is designed to ensnare all of Americans’ international communications, including emails, web-browsing content, and search engine queries. With the help of companies like Verizon and AT&T, the NSA has installed surveillance devices on the internet “backbone” – the network of high-capacity cables, switches, and routers across which Internet traffic travels.

The NSA intercepts and copies private communications in bulk while they are in transit, and then searches their contents using tens of thousands of keywords associated with NSA targets. These targets, chosen by intelligence analysts, are never approved by any court, and the limitations that do exist are weak and riddled with exceptions. Under Section 702, the NSA may target any foreigner outside the United States believed likely to communicate “foreign intelligence information” – a pool of potential targets so broad that it encompasses journalists, academic researchers, corporations, aid workers, business persons, and others who are not suspected of any wrongdoing.

Through its general, indiscriminate searches and seizures of the plaintiffs’ communications, upstream surveillance invades their Fourth Amendment right to privacy, infringes on their First Amendment rights to free expression and association, and exceeds the statutory limits of Section 702 itself. The nature of plaintiffs' work and the law’s permissive guidelines for targeting make it likely that the NSA is also retaining and reading their communications.

The ACLU litigated an earlier challenge to surveillance conducted under Section 702 – Clapper v. Amnesty – which was filed less than an hour after President Bush signed Section 702 into law in 2008. In a 5-4 vote, the Supreme Court dismissed the case in February 2013 on the grounds that the plaintiffs could not prove they had been spied on. Edward Snowden has said that the ruling contributed to his decision to expose the full scope of NSA surveillance a few months later. Among his disclosures was Upstream surveillance, the existence of which was later confirmed by the government.

Following Wikimedia’s victory in the Fourth Circuit in May 2017, the case returned to the district court. There, Wikimedia sought documents and deposition testimony from the NSA. The government refused to comply with many of Wikimedia’s discovery requests, invoking the “state secrets privilege” to withhold basic facts from both Wikimedia and the court. Wikimedia challenged the government’s unjustified use of secrecy to shield its surveillance from scrutiny, but in August 2018 the district court upheld it. Nevertheless, Wikimedia’s lawsuit is moving forward based on the extensive public disclosures about Upstream surveillance.

Our clients advocate for human and civil rights, unimpeded access to knowledge, and a free press. Their work is essential to a functioning democracy. When their sensitive and privileged communications are monitored by the U.S. government, they cannot work freely and their effectiveness is curtailed – to the detriment of Americans and others around the world.

Amnesty v. Clapper: The ACLU’s first challenge to the FAA.