Earlier this week, Wikimedia, the parent company of Wikipedia, filed a lawsuit against the National Security Agency, saying that the NSA's use of "upstream" mass surveillance violates the First and Fourth Amendments.
Under "upstream" surveillance, an American sending an email or making a video call to someone in another country could have the content of their correspondence collected by the NSA. That might even be true if the message is sent to someone in the U.S., but the data was passed through a foreign server.
Wikimedia was joined by several other plaintiffs in the suit, and will be helped by the American Civil Liberties Union, Wikipedia founder Jimmy Wales wrote in an op-ed in the New York Times.
Stephen Vladeck, a professor at the American University Washington College of Law and an expert on national security law, explained the lawsuit and its implications to NPR's Arun Rath.
Interview Highlights
On what the upstream surveillance program does
Under upstream, what the NSA is apparently doing is they're tapping the backbone of the Internet. In effect, if we think of the Internet as a highway, they're on the highway and intercepting traffic as it crosses the highway.
In critical distinction to the programs that we've learned about already, the programs that are already being challenged, part of what the NSA is collecting through upstream is content — that is to say, the content of phone calls, the content of emails, and not just the metadata that has been at the heart of, for example, the bulk phone records program.
On privacy concerns
The real tension here is between, on the one hand, the concededly valid mission of the NSA to collect meaningful, true foreign intelligence surveillance information and on the other hand, the settled expectation of privacy that U.S. citizens everywhere and non-citizens lawfully present in the United States have in the content of their communications. It's not the case that just because the NSA says it might be relevant to foreign intelligence surveillance that we lose that expectation of privacy.
And indeed, the courts have yet to sort out how this kind of bulk collection of content, as opposed to metadata, interacts, intersects with the Fourth Amendment. That's the elephant in the room. That's the question that this lawsuit is trying to provoke the federal courts to answer.
On concerns raised by Wikimedia about upstream surveillance effects on foreigners
The Supreme Court has held that non-citizens outside the United States don't have Fourth Amendment rights. But critically, there might still be policy implications for why it's unwise for us to be collecting this information in bulk.
And perhaps even more importantly, upstream is not just about collecting the information of Egyptian citizens living in Egypt. We know now that the government is collecting tens of thousands, if not hundreds of thousands, if not millions, of communications of U.S. persons, of individuals who are unquestionably protected by the Fourth Amendment. And I think that's why we're seeing this lawsuit getting so much attention.
On why the lawsuit is happening now, when the surveillance was first revealed in 2013
I think it took a little longer for folks to fully appreciate what the upstream program was ... and the unique privacy interests that it implicates. And I think it was only as we learned more that we fully began to understand just how pervasive upstream collection was and just how fundamentally different it was, insofar as it meant the government was acquiring the content of our communications — and not just the details about who we called and how long we spoke for and where we were when we made that phone call.
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Transcript
ARUN RATH, HOST:
It's Wikipedia versus the National Security Agency. Last week, the parent company of Wikipedia filed suit against the NSA, claiming their use of upstream surveillance violates the Fourth Amendment. Here's an example of what they're talking about.
STEPHEN VLADECK: If you send an email or if you make a phone call through Skype or some other Internet protocol to a friend in another country or even to someone within the U.S. where it goes through another country's server, that's the kind of content that upstream allows the government to collect.
RATH: That's Steve Vladeck. He's a professor at the American University Washington College of Law. He says the Wikipedia lawsuit is different from the other cases challenging the NSA.
VLADECK: Under upstream, what the NSA is apparently doing, is they're tapping the backbone of the Internet. In effect, if we think of the Internet as a highway, they're on the highway and intercepting traffic as it crosses the highway.
And in critical distinction to the programs we've learned about already to the programs that are already being challenged, part of what the NSA is collecting through upstream is content - that is to say, the content of phone calls, the content of emails - and not just the metadata that has been at the heart of, for example, the telephone bulk phone records program.
RATH: But, you know, the NSA's mission is to collect intelligence and especially and in particular, you know, overseas intelligence. How does this go against the NSA's mission?
VLADECK: Well, so that's - I mean, the real tension here is between, on the one hand, the concededly valid mission of the NSA to collect meaningful, true foreign intelligence surveillance information and on the other hand, the settled expectation of privacy that U.S. citizens everywhere and that non-citizens lawfully present in the United States have in the content of their communications. It's not the case that just because the NSA says it might be relevant to foreign intelligence surveillance that we lose that expectation of privacy.
And indeed, the courts have yet to sort out how this kind of bulk collection of content, as opposed to metadata, interacts, intersects with the Fourth Amendment. That's the elephant in the room. That's the question that this lawsuit is trying to provoke the federal courts to answer.
RATH: In his op-ed in The New York Times, Wikipedia founder Jimmy Wales talked about being especially concerned about Wikipedia contributors who live in countries with oppressive governments. And he cites as example, you know, someone who's contributing in Egypt. And the U.S. and Egypt share intelligence. So that could put that person in danger potentially. But how does someone in Egypt have those protections of the Fourth Amendment? Even if the Patriot Act expired, wouldn't that Egyptian person just be out of luck?
VLADECK: The Supreme Court has held that non-citizens outside the United States don't have Fourth Amendment rights. But critically, there might still be policy implications for why it's unwise for us to be collecting this information in bulk.
And perhaps even more importantly, upstream is not just about collecting the information of Egyptian citizens living in Egypt. We know now that the government is collecting tens of thousands, if not hundreds of thousands, if not millions, of communications of U.S. persons, of individuals who are unquestionably protected by the Fourth Amendment. And I think that's why we're seeing this lawsuit getting so much attention.
RATH: Now, the revelation about this kind of surveillance came out of documents leaked by former NSA contractor Edward Snowden back in 2013. Why is a lawsuit happening now?
VLADECK: I think it took a little longer for folks to fully appreciate what the upstream program was, how it's different from PRISM and the unique privacy interests that it implicates as distinct from these other programs. And I think it was only as we learned more that we fully began to understand just how pervasive upstream collection was and just how fundamentally different it was, insofar as it meant the government was acquiring the content of our communications, and not just the details about who we called and how long we spoke for and where we were when we made that phone call.
RATH: Steve Vladeck is a law professor at the American University Washington College of Law. Steve, thank you.
VLADECK: Thanks. Thanks for having me. Transcript provided by NPR, Copyright NPR.
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