The Case of Video Surveillance Balloons in Chile
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The U.S. Fourth Circuit Court of Appeals held that Wikimedia allegations that the National Security Agency had intercepted, copied, and reviewed at least some of its communications through “Upstream surveillance” were “plausible,” and granted it standing to bring complaints that “Upstream surveillance” violated the First and Fourth Amendments of the US Constitution. However, the Court of Appeal could not find to be “plausible” the allegation that, in the course of conducting “Upstream surveillance,” the NSA was “intercepting, copying and reviewing substantially all” text-based communications entering and leaving the US. The Court of Appeal reasoned that insufficient evidence had been produced to demonstrate that the operational scope of “Upstream surveillance” was such that “substantially all” text-based communications entering and leaving the US were subject to collection and review.
In June 2015, Wikimedia and 8 other Plaintiffs* filed a suit seeking a judicial order to permanently stop the NSA’s “Upstream surveillance” program because it violated the First and Fourth Amendments of the US Constitution. The Plaintiffs also requested an order that the NSA purge all records of their communications in its possession pursuant to “Upstream surveillance”. The complaint was dismissed by the district court, which ruled in favour of the government because the Plaintiffs’ allegations “depend[ed] on suppositions and speculation, with no basis in fact, about how the NSA implements Upstream surveillance.” The Plaintiffs appealed to the Fourth Circuit Court of Appeals.
“Upstream surveillance” involves the NSA intercepting and collecting certain communications as they travel across the network of cables, routers, and switches that make up the “Internet backbone”. “Upstream surveillance” operates as follows:
“[t]he NSA […] [first identifies] a target and then [identifies] “selectors” for that target. Selectors are the specific means by which the target communicates, such as e-mail addresses or telephone numbers. Selectors cannot be keywords (e.g., “bomb”) or names of targeted individuals (e.g., “Bin Laden”). The NSA then “tasks” selectors for collection and sends them to telecommunications-service providers. Those providers must assist the government in intercepting communications to, from, or “about” the selectors. “About” communications are those that contain a tasked selector in their content, but are not to or from the target. For instance, a communication between two third parties might be acquired because it contains a targeted email address in the body of the communication”
The “Upstream surveillance” program is operated by the NSA pursuant to the Foreign Intelligence Surveillance Act (FISA). In 2008, the FISA was expanded to permit surveillance for up to one year of non-US persons reasonably believed to be abroad. Section 702 of the FISA outlines the procedure for obtaining authorisation for such surveillance, and requires that the Attorney General and the Director of National Intelligence request an order from the Foreign Intelligence Surveillance Court (FISC) to conduct such surveillance. The FISC reviews the request and must be satisfied that the program for surveillance is, among other things, “reasonably designed” to ensure that:
This permits orders to be granted allowing the government to intercept communications between a US person inside the country and a foreigner abroad who is targeted by intelligence officials. The surveillance does not have to be for counter-terrorism purposes, and no “probable cause” requirements need to be met to target a specific person. This allows the government to monitor the communications of thousands of individuals and groups under a single FISC order.
There were two arguments made by the Plaintiffs in relation to “Upstream surveillance”. The first argument claimed that the volume of Wikimedia’s communications and the geographical diversity of its users made it almost certain that the “NSA [had] intercepted, copied, and reviewed at least some of its communications” (the Wikimedia Allegation). The second argument was that, in the course of conducting “Upstream surveillance,” the NSA was “intercepting, copying, and reviewing substantially all” text-based communications entering and leaving the US, including the Plaintiffs’ own (the Dragnet Allegation). Both of these complaints were dismissed by the district court for lack of standing. This decision was appealed to the Fourth Circuit Court of Appeals.
*The National Association of Criminal Defense Lawyers, Human Rights Watch, Amnesty International USA, PEN American Center, Global Fund for Women, The Nation Magazine, The Rutherford Institute, and The Washington Office on Latin America.
The Wikimedia Allegation
First, the United States Fourth Circuit Court of Appeals (Court of Appeal) reviewed de novo whether the Plaintiff had standing to make the Wikimedia Allegation. It outlined the law concerning standing in cases of this nature (Clapper v. Amnesty International), which required that a plaintiff first show:
Citing Spokeo, Inc. v. Robins, the Court stressed that to “establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” A “particularized injury” is one that affects the plaintiff in a personal or individual way, and it may affect more than just the plaintiff. The “imminence” requirement meant that the injury cannot be too speculative.
The Court of Appeal found that the alleged injury to Wikimedia was “concrete and particularized” because Wikimedia was arguing that its own communications were seized through “Upstream surveillance”. The injury was also not speculative because interception of communications was an actual injury that had already occurred. The other two limbs of the test relating to causality and redress-ability had also been met.
The Court of Appeal then reiterated that, in order to demonstrate standing, a plaintiff must also show that their allegation is “plausible”. In this regard, Wikimedia contended that three things should be found to be true:
The Court of Appeal clarified that because the details about the collection process under “Upstream surveillance” remained classified, Wikimedia could not precisely describe the technical means that the NSA employed. Instead, Wikimedia spelled out the technical rules of how the internet worked and concluded that, given that the NSA is conducting “Upstream surveillance” on at least one backbone link, these rules required that the NSA do so in a certain way (i.e. by collecting and reviewing all the communications flowing through a given link). This was sufficient to meet the test of “plausibility”. The Court of Appeal explained it simply as follows:
“Wikimedia has plausibly alleged that its communications travel all of the roads that a communication can take, and that the NSA seizes all of the communications along at least one of those roads. Thus, at least at this stage of the litigation, Wikimedia has standing to sue for a violation of the Fourth Amendment.”
The Court of Appeal overturned the district court’s finding that there was no standing to hear the Wikimedia Allegation.
The Dragnet Allegation
The Court of Appeal explained that the Wikimedia Allegation and the Dragnet Allegation shared much in common, but concluded that the Dragnet Allegation was much broader in scope since it claimed that the NSA collected almost all communications while conducting “Upstream surveillance”. The Court of Appeal held that, although the Dragnet Allegation could meet the tests of (i) injury in fact, (ii) causality, and (iii) redress-ability, it could not meet the threshold of “plausibility” required to have standing.
To reach this conclusion, the Court of Appeal focused on the three factual elements of the Plaintiffs’ argument:
It was concluded that the New York Times article recited the Dragnet Allegation, and thus had no evidentiary significance. The Court of Appeal found that not enough evidence had been produced to get the Dragnet Allegation from being “conceivable” to being “plausible”. To demonstrate this, the Court of Appeal compared the Dragnet Allegation to the Wikimedia Allegation. The Wikimedia Allegation used internet theory alongside the surveillance program’s statement of purpose to come to a conclusion about how the NSA is doing something within a defined operational scope. On the other hand, the Dragnet Allegation relied on internet theory alongside a statement of purpose to demonstrate the program’s operational scope, despite the fact that there was no link between the internet theory and the operational scope of the surveillance program.
The Court of Appeal concluded that the Plaintiffs failed to establish enough facts about the operational scope of “Upstream surveillance”, and therefore could not “plausibly allege a dragnet”. The Court of Appeal upheld the finding of the district court that the Dragnet Allegation lacked standing.
Senior Circuit Judge Davis dissented in part on the basis that the Dragnet Allegation should have standing for the same reasons as those pertaining to the Wikimedia Allegation.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Following the Snowden revelations about the NSA’s surveillance, Wikimedia and 8 other Plaintiffs litigated to protect themselves (and others) against the US government’s seemingly indiscriminate surveillance of their data. Such surveillance can violate both the right to freedom of speech and the right to privacy. This particular decision has both positive and negative implications for surveillance litigation. The findings on standing in relation to the Wikimedia Allegation recognize that an individual can challenge the constitutionality of surveillance even when they are not privy to the precise technical means adopted in order to carry out this surveillance. Such an approach to standing is a realistic response to the evidentiary difficulties posed by the inherently hidden and secretive nature of surveillance. However, the finding of the Court of Appeal in this case in relation to the Dragnet Allegation makes it more difficult for Plaintiffs to argue that more systemic surveillance has taken place without specific evidence on the operational scope of a surveillance program.
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U.S. Federal Appellate Courts establish binding precedent on lower courts and generally contribute to U.S. jurisprudential analysis.
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