Wikimedia v. NSA

February 24, 2016

Wikimedia, The Nation Magazine, and PEN American Center have joined with a group of other plaintiffs to challenge the constitutionality of "upstream" surveillance pursuant to Section 702 of the FISA Amendments Act on the grounds that it violates the First Amendment as well as the Fourth Amendment. Under this program, the government compels backbone service providers—companies that control the telecommunications equipment through which ISPs route their traffic—to provide communications sent through their equipment to the government. The District Court held that the plaintiffs lacked standing to challenge the surveillance at issue because their claims were too speculative. We argued that, because communications surveillance under Section 702 impedes confidential reporter-source relationships and newsgathering, plaintiffs have alleged a sufficient harm to establish standing to sue. Upstream surveillance has created documented chilling effects on the journalistic profession: reporters and sources avoid certain topics of conversation and report that they are not pursuing certain stories because of surveillance. Additionally, we argued that upstream surveillance permits warrantless, unreasonable searches without adequate protections for First Amendment rights.