On March 10, 2015, a collective of organizations interested in privacy, led by the Wikimedia Foundation, filed this lawsuit in the U.S. District Court for District of Maryland. The plaintiffs sued the National Security Agency and the Department of Justice under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. The plaintiffs, represented by attorneys from the ACLU and private counsel, asked the court to declare “Upstream Surveillance” by the government to be unconstitutional, and to purge all records on plaintiffs obtained through the practice. Specifically, the plaintiffs claimed that the NSA’s surveillance programs, including “PRISM,” implement the unconstitutional method of upstream surveillance. They claimed that these programs make copies of nearly all digital communications, and that the government makes no effort to limit the scope of this surveillance. The plaintiffs allege these practices violate their First and Fourth amendment rights.

After the passage of the FAA (Foreign Intelligence Surveillance Act Amendments Act) in 2008, the NSA was granted authority to conduct warrantless surveillance of all US persons’ international communications. The act includes no requirement for justifying the surveillance, or for attempting to limit those affected by the surveillance. In 2011 under the FAA, the NSA began its upstream surveillance program, which, the complaint, alleges “involves the surveillance of essentially everyone’s communications. Plaintiffs claim this NSA surveillance program is hindering their work and violating their constitutional rights.

On October 23rd, 2015, the court (Judge T.S. Ellis) granted the defendants’ motion to dismiss the suit. The court reasoned that the suit did not have proper standing because their complaint did not allege a harm directly attributable to the government’s upstream surveillance.

On December 15th, 2015, the plaintiffs filed a notice of appeal. Oral argument occurred on December 8th, 2016 and on May 23, 2017, the 4th Circuit Court of Appeals issued its judgment. The court vacated and remanded the District of Maryland's decision as to Wikimedia, the first and largest plaintiff, ruling that it had standing to pursue the injunction. As to all other plaintiffs, however, the court affirmed.

Underlying this ruling was the relative speculativeness of each plaintiff's claim. Wikimedia asserted that it conducted over a trillion internet communications every year with people in virtually every country on the planet. There were a very limited number of pathways in which an internet communication could exit the United States, and the NSA's Upstream monitoring program monitored at least one of these pathways in order to obtain and review communications. The gist of Wikimedia's complaint was that, due to the sheer volume of their communications, and due to the limited number of places in which the government could monitor communications, there was no way that the government had not obtained and reviewed Wikimedia's communications with persons abroad.

The government countered that Wikimedia was speculating as to the breadth of the U.S. Upstream monitoring program. The court ruled that Wikimedia's assertion was sufficiently plausible at least as to the Motion to Dismiss phase of trial.

The other named plaintiffs' claim did not rise to the same level of certainty as Wikimedia's. Instead of claiming that it was virtually impossible for the government to use Upstream monitoring and avoid reviewing their internet communications, the other plaintiffs claimed that the government was “intercepting, copying, and reviewing substantially all" text-based communications entering and leaving the United States. On May 23, 2017, the Fourth Circuit (Judge Diaz) found this claim unsubstantiated by the allegations contained in the complaint, and therefore upheld the lower court's judgment. 857 F.3d 193.

In a dissent, Judge Davis agreed with the court's ruling that Wikimedia had standing to continue the case, but would have held that the other plaintiffs had made plausible allegations and should have had standing as well.

The case was remanded. On September 25, 2017, the Court granted a five month period for jurisdictional recovery. On March 12, 2018, the parties jointly moved for a continuance of the discovery deadline in order to submit a new proposed schedule for the completion of jurisdictional discovery. The Court denied this motion on March 15, 2018, but granted one additional month of discovery beginning March 17, 2018.

The docket was last updated on March 15, 2018.

Michael Abrams - 10/04/2016
Megan Brown - 06/26/2017


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