US Court of Appeals dismisses Wikimedia lawsuit against National Security Agency, on grounds of “state secrets” privilege

The 4th U.S. Circuit Court of Appeals upheld the dismissal of a 2015 lawsuit brought by the Wikimedia Foundation, challenging the National Security Agency’s warrantless Upstream surveillance program, on the grounds that continuing the lawsuit would damage national security. 

Key Players

Wikimedia Foundation is the nonprofit organization that runs Wikipedia. 

The National Security Agency (NSA), the government agency responsible for cryptographic and communications intelligence and security, argued that proceeding with the lawsuit might compromise national security. 

Further Details

After former NSA employee and contractor Edward Snowden leaked the existence of Upstream, Wikimedia sued NSA in March 2015, arguing that the agency had captured some of its internal communications and that the program violated the First Amendment right to Free Speech and the Fourth Amendment right against unreasonable search and seizure, Reuters reported. 

On Oct. 23, 2015, the lawsuit was dismissed by U.S. District Court Judge T.S. Ellis III in Maryland, ruling that Wikimedia had no standing and could not prove it had been surveilled.  

On May 23, 2017, the 4th U.S. Circuit Court of Appeals found Wikimedia had a legal right to challenge Upstream and sent the case back to Ellis. But on Dec. 16, 2019,  Ellis once again ruled Wikimedia lacked standing to sue and found that “sufficient evidence” had not been provided to justify proceeding with the case. Wikimedia again appealed the ruling on Feb. 14, 2020

“We respectfully disagree with the District Court’s ruling,” Wikimedia wrote following the 2019 dismissal, asserting that the NSA was using Upstream surveillance to “copy and search Wikimedia’s communications.”

Outcome

On Sept. 15, 2021, a three-judge panel of the appellate court ruled 2-1 in favor of dismissing the case.  Judge Albert Diaz, in his majority opinion, agreed that the lawsuit would endanger national security, The Associated Press reported. 

In a partial dissent, Judge Diana Gribbon Motz criticized the majority’s “sweeping proposition” that a suit could be dismissed “under the state secrets doctrine, after minimal judicial review, even when the government premises its only defenses on far-fetched hypotheticals.” 

Patrick Toomey, senior staff attorney with the American Civil Liberties Union’s (ACLU) National Security Project, which represented Wikimedia, expressed his disappointment with the majority opinion. 

“Every day, the NSA is siphoning Americans’ communications off the internet backbone and into its spying machines, violating privacy and chilling free expression,” Toomey said in a statement delivered after the verdict. “Congress has made clear that the courts can and should decide whether this warrantless digital dragnet complies with the Constitution.” 

James Buatti, senior legal manager at the Wikimedia Foundation, expressed similar disagreement with the verdict. “In the face of extensive public evidence about NSA surveillance,” he said, “the court’s reasoning elevates extreme claims of secrecy over the rights of Internet users.” 

As of Jan. 4, 2022, there were no further developments.