Brave example of speaking truth to power, or just a great fundraising stunt? Wikipedia will file a lawsuit against the NSA for its Internet data trawling, alleging that their surveillance intimidates users from fully participating in the site’s efforts to crowdsource reliable presentations. From National Journal’s report by Dustin Volz, though, they may have a tough argument for standing:
Wikipedia will file a lawsuit on Tuesday challenging the constitutionality of the National Security Agency’s mass surveillance of Internet communications, a sudden and striking challenge that comes nearly two years after Edward Snowden’s disclosures first began.
The online encyclopedia suit against the NSA and the Justice Department claims that the U.S. government’s mass surveillance regime threatens freedom of speech under the First Amendment and the Fourth Amendment’s protection against unreasonable search and seizures.
“By tapping the backbone of the Internet, the NSA is straining the backbone of democracy,” Lila Tretikov, executive director of the Wikimedia Foundation, wrote in a blog post on its website. “Wikipedia is founded on the freedoms of expression, inquiry, and information. By violating our users’ privacy, the NSA is threatening the intellectual freedom that is central to people’s ability to create and understand knowledge.”
Tretikov and Jimmy Wales also wrote a New York Times op-ed today (not behind the pay wall, interestingly) demanding an end to government snooping:
These volunteers should be able to do their work without having to worry that the United States government is monitoring what they read and write. Unfortunately, their anonymity is far from certain because, using upstream surveillance, the N.S.A. intercepts and searches virtually all of the international text-based traffic that flows across the Internet “backbone” inside the United States. This is the network of fiber-optic cables and junctions that connect Wikipedia with its global community of readers and editors.
As a result, whenever someone overseas views or edits a Wikipedia page, it’s likely that the N.S.A. is tracking that activity — including the content of what was read or typed, as well as other information that can be linked to the person’s physical location and possible identity. These activities are sensitive and private: They can reveal everything from a person’s political and religious beliefs to sexual orientation and medical conditions.
The notion that the N.S.A. is monitoring Wikipedia’s users is not, unfortunately, a stretch of the imagination. One of the documents revealed by the whistle-blower Edward J. Snowden specifically identified Wikipedia as a target for surveillance, alongside several other major websites like CNN.com, Gmail and Facebook. The leaked slide from a classified PowerPoint presentation declared that monitoring these sites could allow N.S.A. analysts to learn “nearly everything a typical user does on the Internet.”
The harm to Wikimedia and the hundreds of millions of people who visit our websites is clear: Pervasive surveillance has a chilling effect. It stifles freedom of expression and the free exchange of knowledge that Wikimedia was designed to enable.
It’s a noble cause, and one that many across the political spectrum will cheer. The problem with NSA’s broad method of surveillance is that it captures a wide swath of material, although the NSA claims that they only keep that which either matches a (ridiculously easy to procure) warrant or has at least one point of origin outside the US. The problem, as revealed by the Edward Snowden cache, is that the NSA appears to use a very broad definition of “origin,” and at times of “warrant” as well. The Obama administration and Congress both claim to want better oversight and more stringent parameters of capture for the NSA’s programs, but little has changed in almost two years since the scandal first erupted. In fact, the man in charge who misled Congress about the scope of the NSA program, James Clapper, remains in that position despite his dishonesty.
Courts tend to take a narrow view of noble causes brought in lawsuits, though. In order to have standing for such a lawsuit, Wikipedia will likely have to demonstrate that they have actually been damaged by the NSA’s activities. Perhaps they have metrics that can demonstrate a specific and causative relationship between the May 2013 exposure of the NSA’s programs and their site traffic, but absent that they may find it difficult to proceed. Just because a government program might cause damage to their business doesn’t give them standing as plaintiffs in court — but it doesn’t cost a ton of money to try, at least for the first round, and it might lift their status with donors to at least put forth the effort. And who knows whether the NSA will contest the suit on standing, rather than just on the provenance given it by Congress?
A better case would come from a telecom forced to comply with NSA on the surveillance. Lawsuits against the telecoms got mooted by Congress, which afforded them retroactive immunity in 2008 for their cooperation with NSA, and the Supreme Court threw out the cases in 2012. They could, though, sue to keep NSA off their back, and could argue that they have directly impacted by the exposure of that cooperation through the NSA’s carelessness in dealing with Snowden. Or, a company like Gemalto that apparently got hacked by the NSA could file a lawsuit to recover provable damages and get a punitive award large enough to curtail NSA’s future activities.
For that matter, Apple looks like it has standing for a lawsuit against the CIA, if not the NSA:
The Central Intelligence Agency has secretly attempted for years to crack the security protections on a number of Apple products, including the iPhone and iPad, according to newly revealed documents from Edward Snowden.
CIA spies have been at work for nearly a decade to thwart the encryption standards on Apple’s devices, the classified files published Tuesday by The Intercept show.
At an annual CIA conference known as “Jamboree” and dating back to 2006, contracted researchers have tried to devise strategies for how to break through the security baked into electronics built by Apple, Microsoft, and other U.S. technology companies. A prime goal has been to build so-called surveillance backdoors that would allow for government snooping without the knowledge of the company.
Perhaps Wales and Tretikov want most to make a statement, to draw a line in the sand to rally public opinion once again and pressure Obama and Congress to do something about the NSA. That might be enough, and worth the short-term cost of an ill-fated lawsuit. And it raises another question: why aren’t these larger, for-profit corporations going to court to defend their own businesses?