Thor Benson: Why Wikimedia Just Might Win Its Lawsuit Over NSA Surveillance

 The National Security Agency and the Department of Justice are being sued by Wikimedia, the nonprofit organization that runs Wikipedia—the online encyclopedia whose articles can be written or edited by anyone.

By Thor Benson  truthdig.com  March 27, 2015

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Wikimedia claims that the U.S. government’s mass surveillance programs are threatening its ability to spread free, open and honest information and that the way the NSA collects data violates the First and Fourth Amendments to the Constitution. The organization is being represented by the American Civil Liberties Union and is joined in the suit by eight other plaintiffs, including the National Association of Criminal Defense Lawyers, Human Rights Watch, Amnesty International USA and The Nation.

The suit is specifically challenging the NSA’s use of “upstream surveillance,” which taps directly into the Internet’s backbone—the network of cables and routers that makes the Web possible—and intercepts all the traffic that goes across it.

Under the 2008 Foreign Intelligence Surveillance Act, the agency only has the legal authority to gather data on foreign nationals residing outside the United States, but in reality, far more data is being collected on American citizens than on foreigners.

The NSA has made claims none of this data is technically “collected” until it’s been utilized in some way.

“The government plays word games and argues sometime that it doesn’t actually acquire information until it’s ingested in a particular manner,” Ashley Gorski, a fellow with the ACLU’s National Security Project, told Truthdig. She said the government is collecting these communications and searching through them but pretending it isn’t.

Wikimedia’s suit claims the NSA’s upstream surveillance is causing people to self-censor for fear of being monitored by the government.


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“We believe that the NSA’s upstream surveillance has a chilling effect not only on Wikimedia’s writers and editors but on all of our plaintiffs,” Gorski said. “As a general matter, the private communications of innocent Americans don’t belong in the government’s hands, and if people know the NSA is watching, they’re going to hesitate before visiting controversial websites, before discussing controversial issues or investigating online politically sensitive questions.”

Juliet Barbara, the senior communications manager for Wikimedia, agrees.

“Mass surveillance is a threat to intellectual freedom and a spirit of inquiry, two of the driving forces behind Wikimedia,” she told Truthdig. “Wikipedia is written by people from around the world who often tackle difficult subjects. Very frequently they choose to remain anonymous, or pseudonymous. This allows them to freely create, contribute and discover without fear of reprisal. Surveillance might be used to reveal sensitive information, create a chilling effect to deter participation, or in extreme instances, identify individual users.”

There are clearly many individuals who might not want the U.S. government reading their emails, but the plaintiffs argue that the spying also hinders their ability to do their jobs properly. For example, a NACDL defense lawyer representing someone accused of terrorism or of being involved in a violent protest must be able to communicate with clients in a confidential manner.

One might think that simply encrypting the data of Wikipedia users would be the answer, but, Barbara said, sometimes it’s not that easy. With a large network like Wikipedia, encrypting every process can be difficult, though the site already offers the secure hypertext transfer protocol, or HTTPS, to give its users a layer of encryption.

“On Wikipedia, logged-in users already have the HTTPS version by default, to protect passwords and sensitive communications,” Barbara said, adding that “all Wikimedia users can enable HTTPS manually.”

The problem is that HTTPS can create performance problems for users accessing Wikimedia from countries with low bandwidth or poor connections, but its engineering team is working hard to find the best HTTPS configuration, she said.

Wikimedia has also published a transparency report, as many online organizations have done, broadly revealing the number of people the NSA has requested information on, and it has filed an amicus briefin support of Twitter’s lawsuit asking to be able to release more information on how often the NSA is requesting information on specific users.

“We adhere to detailed guidelines for responding to user data requests and scrutinize each request carefully. The Wikimedia Foundation has fulfilled just 14 percent of requests for user data in the past two years,” Barbara said. “We believe that privacy goes hand in hand with transparency.”

Gorski of the ACLU said she believes that the plaintiffs have a better chance of winning the suit than they might have had in the past “due to the Snowden disclosures and subsequent government acknowledgements about upstream surveillance.”

“There’s no question here that the plaintiffs do have standing,” she added, using the legal term referring to the ability to show the court sufficient connection to and harm from the actions being challenged.

In the 2008 case, Jewel v. NSA, the Electronic Frontier Foundation also challenged upstream surveillance but lost because the NSA cited the government’s “state secrets” privilege, arguing that if the case was to be defended properly, confidential information would have to be revealed.

In this case, Gorski doesn’t think that will happen.

“There’s enough on public record about upstream so that they can’t really invoke the state secrets doctrine with a straight face,” she said. “The government itself has acknowledged in several venues the fact that the NSA has engaged in this surveillance. It’s too public to defend.”

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