Wikipedia Lawsuit Against NSA Moves Forward With Judges
Struggling to Understand Official Line
The
ACLU told an appeals panel Thursday it’s not just speculating about internet
surveillance.
By Steven Nelson | Staff
Writer Dec. 9, 2016, at 4:50 p.m.
Documents released by whistleblower
Edward Snowden, left, reveal that the New York skyscraper at 33 Thomas Street
serves as a key point for U.S. electronic surveillance, The Intercept reported in November. GETTY/CREATIVE
COMMONS
The organization that runs the online encyclopedia Wikipedia had
another day in court Thursday challenging U.S. internet surveillance, and
judges reviewing the case expressed skepticism about authorities’ claim there
was insufficient grounds to sue.
Oral arguments don’t always indicate how judges will rule, but
the panel seemed puzzled about how the National Security Agency’s "upstream"
collection of communications directly from the internet’s background would not
affect the large Wikimedia Foundation.
Last year, U.S. District Judge T.S. Ellis dismissed the case on the grounds that
Wikimedia and allied organizations relied on "probabilities and
suppositions" and could not show their records were taken.
American Civil Liberties Union attorney Patrick Toomey told the
three-judge panel of the U.S. Court of Appeals for the 4th Circuit, however,
that it’s clear from records released since whistleblower Edward Snowden’s 2013
leaks that Wikimedia is affected.
Justice Department attorney Catherine Dorsey insisted that's
just speculation, which derailed a similar case in
2013 before Snowden's revelations.
“How that is done is not public information,” she said about
upstream collection, which authorities acknowledge lifts communications from
cables that make up the internet’s backbone. “They speculate that must mean
everything is being collected and there is no support for that allegation.”
RELATED
CONTENT
The judges asked skeptical questions of Dorsey, displaying
confusion about how the upstream program would not affect users or staff of one
of the world's most popular websites in its task of spying on terrorists and
other foreign targets.
Upstream collection is – along with the PRISM program that takes
communications from companies like Google and Facebook – a major source of
internet records the NSA says it's authorized to acquire through Section 702 of
the Foreign Intelligence Surveillance Act.
The ACLU says the program violates the First and Fourth
Amendments and exceeds the NSA’s statutory authority. Procedures to minimize
collection of extraneous information about "U.S. persons" – citizens,
legal residents, corporations or groups – are “feeble,” the lawsuit says, with
intercepts stored three years by default and forever if encrypted.
Judge Andre Davis used a hypothetical in an attempt to
understand how upstream collection could possibly be narrowly performed,
asking: “If you want to know about every federal Article III judge, the law
school from which she or he graduated, wouldn’t you search a database of every
federal Article III judge?”
Davis said an alternative method might include visiting the alma
maters.
“How do you go visit the alma mater of a person when you don’t
know the identity of that person’s alma mater?” he said, illustrating reason to
believe upstream collection works through mass interception of records.
Dorsey said the precise way the program operates remains
classified but offered a vision for how it might not involve searches of all
internet traffic.
"Each submarine cable has subcables and each of those
subcables has up to 1,000 fiber-optic fibers on which the communications
transit," she said. "As a technological matter the government would
not have to collect the communication on a whole subcable … and the plaintiffs
have offered no allegation that the government must collect everything."
Toomey said later in the hearing that description was misleading
and that the ACLU intended to rebut it going forward.
Judge Diana Gribbon Motz struggled to reconcile Dorsey's
description of the program as potentially limited with how it is understood to
work.
“I don't understand how the government would do a very good job
if it proceeded as you suggest,” she said. “I’m heavily for national security,
but if they want something more than to and from they’re going to have to look
at everything.”
Upstream collection works by taking records "to," "from"
or "about" a selection term, according to a 2014 report by the
Privacy and Civil Liberties Oversight Board.
The board wrote:
"If the NSA therefore applied its targeting procedures to task email
address 'JohnTarget@example.com,' to Section 702 upstream collection, the NSA
would potentially acquire communications routed through the Internet backbone
that were sent from email address JohnTarget@example.com,
that were sent to JohnTarget@example.com,
and communications that mentioned JohnTarget@example.com
in the body of the message."
That report said that as of 2011 the NSA was collecting about
26.5 million internet transactions a year through upstream collection, after
first attempting to filter out domestic communications and then screening the
remainder for selection terms.
Judge Albert Diaz, distinguishing Wikimedia from several other
groups represented by the ACLU, said the government’s established interception
of communications from major internet chokepoints could allow for a conclusion
Wikimedia was affected.
“They don’t need the dragnet allegation with respect to
Wikimedia if you accept their allegation that because of the nature of their
traffic it traverses across all of the chokepoints and if the government is
surveilling some of them inevitably it’s going to sweep up some of that
traffic," he said.
Even if the Wikimedia lawsuit is unsuccessful – or stalled in
litigation for years as is a similar lawsuit brought by the Electronic Frontier
Foundation against the PRISM program – the debate about NSA internet
surveillance will continue.
Unless Congress acts, Section 702 expires late next year. In the face of a
similar deadline, Congress last year restricted spy powers and outlawed the
automatic bulk collection of domestic call records under a separate statute.
Steven Nelson is a reporter at U.S.
News & World Report. You can follow him on Twitter or reach him at snelson@usnews.com.
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"The master class
has always declared the wars; the subject class has always fought the battles.
The master class has had all to gain and nothing to lose, while the subject
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