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 (NSA) 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 the plaintiffs obtained through this 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 made copies of nearly all digital communications, and that the government made no effort to limit the scope of this surveillance. The plaintiffs alleged these practices violated their First and Fourth Amendment rights.

After the passage of the Foreign Intelligence Surveillance Act Amendments Act (FAA) in 2008, the NSA was granted authority to conduct warrantless surveillance of all US persons’ international communications. The act included 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." The plaintiffs claim this NSA surveillance program hindered their work, along with violating their constitutional rights.

On October 23rd, 2015, Judge T.S. Ellis granted the defendants’ motion to dismiss because the complaint did not allege a harm directly attributable to the government’s upstream surveillance, so the suit did not have proper standing. 143 F.Supp.3d 344. 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 in response had countered that Wikimedia was speculating as to the breadth of the U.S. Upstream monitoring program. However, the court ruled that Wikimedia's assertion was sufficiently plausible at least as to the Motion to Dismiss phase of trial.

The plaintiffs appealed to the Fourth Circuit. Oral argument occurred on December 8th, 2016 and on May 23, 2017, the Fourth Circuit vacated and remanded the lower court's decision as to Wikimedia, the first and largest plaintiff, ruling that it had standing to pursue the injunction. 857 F.3d 193. However, the court affirmed as to all other plaintiffs in the suit and upheld the lower court's judgment, finding that their claims 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.

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.

Back in the district court, on September 25, 2017, the Court granted a five-month period for jurisdictional discovery. 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.

For the next six months, the parties engaged in discovery. The main issue during this time was the plaintiff’s motion to compel discovery responses and deposition testimony, submitted on March 26. The motion to compel was in response to the defendants’ objections to the plaintiff’s 84 discovery requests. The defendants asserted common law state privilege and national security purposes under 50 U.S.C. § 3024(i)(l) as the basis to refuse the discovery requests. The plaintiffs contended that where a party moves to discover material relating to electronic surveillance, the court must follow the Foreign Intelligence Surveillance Act’s (FISA) procedures and conduct an ex parte and in camera review of materials relating to electronic surveillance.

The defendants responded that FISA did not apply, as the plaintiff had not established themselves as the target of electronic surveillance. The plaintiff’s motion to compel discovery responses and deposition testimony were denied on August 20, 2018, in favor of the defendants. The court decided that the defendants had satisfied procedural requirements to invoke state secrets privilege and that the information sought to be protected fell under the state secrets doctrine. The court also agreed that the plaintiff had not yet established that they were the subject of electronic surveillance. Therefore, FISA did not apply and jurisdictional discovery was limited to information not protected by state secrets privilege. 335 F.Supp.3d 772.

The defendants moved for summary judgment on November 13, 2018, alleging that the plaintiff lacked standing to contest the legality of the NSA’s upstream surveillance program. The defendants also stated there was no issue of material fact, and that the state secrets privilege precluded further litigation. The same day, the defendants also requested to seal their motion on an interim basis, which was granted on December 11.

The plaintiffs submitted a response in opposition to the defendants’ summary judgment motion on December 18, 2018, claiming that it had presented sufficient evidence and that it has third-party standing. In the next months, the parties continued to submit arguments regarding the summary judgment.

The defendants then submitted a motion to stay proceedings due to a funding issues on December 26, 2018, which was granted on January 2, 2019. After the issue was resolved, the defendants filed a restoration of appropriations on January 28, 2019.

On December 16, 2019, the defendants' motion for summary judgment was granted, holding that Wikimedia did not have the standing to proceed with its claims as it had not presented sufficient evidence that the NSA was monitoring Wikimedia communications. The court additionally stated that even if Wikimedia were able to demonstrate such monitoring, the state secrets privilege would require dismissal. 427 F.Supp.3d 582.

The plaintiffs filed a notice of appeal on February 14, 2020, and the case is ongoing.

Michael Abrams - 10/04/2016
Megan Brown - 06/26/2017
Averyn Lee - 05/31/2020


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