- The Washington Times - Wednesday, December 7, 2016

The publishers of Wikipedia and several civil rights groups will head to a federal appeals court Thursday to challenge a National Security Agency surveillance program that mines Americans’ internet communications.

A key hurdle for the groups will be to provide convincing evidence that their emails and other communications are among those collected in bulk by the NSA.

A lower court previously dismissed the lawsuit, which challenges the NSA surveillance program Upstream, on grounds that the groups were unable to prove their communications were among those intercepted and instead were relying on speculation about how the spying system is used.

Wikipedia’s parent organization, the Wikimedia Foundation, is joined in the lawsuit by the Rutherford Institute, The Nation magazine, Amnesty International, PEN America, Human Rights Watch, the National Association of Criminal Defense Lawyers, Global Fund for Women, and the Washington Office on Latin America. The groups are being represented by the American Civil Liberties Union.

In briefs submitted to the U.S. Court of Appeals for the 4th Circuit in Richmond, Virginia, ACLU attorneys argue that, because of the sheer volume of internet communications Wikimedia receives and transmits every year and the broad scope of the NSA program, it’s plausible to believe at least some of its communications have been intercepted, copied and reviewed by the government.

“Wikimedia’s communications traverse every major internet circuit entering or leaving the United States and Upstream surveillance requires that the NSA copy and review all international text-based communications transiting the circuits it is monitoring, including Wikimedia’s communications,” ACLU attorneys wrote.

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“In other words, even if the NSA were conducting Upstream surveillance on only a single circuit, it would be copying and reviewing the Wikimedia communications that traverse that circuit. But the government has acknowledged monitoring multiple internet circuits — making it only more certain that Wikimedia’s communications are being copied and reviewed.”

The NSA uses Upstream to gather information transmitted through the network of cables, switches, and routers that comprise the backbone of the internet. NSA contractor Edward Snowden leaked documents describing the program, but most details about it remain secret, making it difficult for individuals to determine whether their emails, online chats, or web-browsing traffic are among those scooped up by the program.

Attorneys argue that the interception of communications in this fashion exceeds the NSA’s authority under the Foreign Intelligence Surveillance Act and violates their clients’ First and Fourth Amendment rights. Fearful that communications will be intercepted by the NSA, some of the plaintiffs have opted to “censor their own communications, and in some instances forgo electronic communications altogether,” the brief states.

“Innocent people shouldn’t have to look over their shoulders when using the internet,” said ACLU attorney Patrick Toomey. “The NSA is systematically searching online communications in real-time, invading Americans’ privacy on a massive scale. This illegal spying undermines constitutionally protected privacy and free speech rights.”

Government attorneys have sought to raise doubts about the factual basis for the ACLU’s arguments and have asked for dismissal of the lawsuit.

In a brief submitted to the court, they argue that the groups have no standing because they “failed to allege any concrete facts to support their claim that the NSA collects ‘substantially all’ international electronic communications transiting the United States.” The NSA does not automatically have to intercept all communications transiting through a particular cable and could choose to intercept communications traveling only through parts of a cable, they say.

“Plaintiffs claim that to monitor ‘substantially all’ international text-based communications, the NSA need only monitor communications at the chokepoints, and that the NSA has installed surveillance equipment at ‘many’ of the forty-nine chokepoints for such international communications,” Justice Department attorneys wrote. “But these facts do not permit a reasonable inference that the NSA is comprehensively monitoring all the chokepoints.”

Justice attorneys counter that even if the court were to find Wikimedia’s claims plausible, the organization has failed to allege actual injury to itself as a result of NSA surveillance.

“The ‘communications’ Wikimedia alleges are intercepted are mere internet ‘transactions’ that lack the hallmarks [and privacy interests] of traditional communications,” Justice attorneys wrote.

According to government attorneys, Wikimedia’s claims that users’ privacy would be invaded by interception of their online transactions do not hold up because such claims would require that the government be able to identify individual users.

“Such an allegation would be difficult to support, particularly in light of Wikimedia’s acknowledgment that ‘millions’ of its users are unknown even to Wikimedia,” the attorneys wrote.

Arguments will be held Thursday morning. The panel of judges set to hear the case has not been publicly announced.

• Andrea Noble can be reached at anoble@washingtontimes.com.

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