As the Supreme Court prepares to begin its next term, experts in privacy and national security law are watching closely for hints about whether justices will take up a potentially precedent-setting challenge to the government’s use of a state secrets law to avoid scrutiny of its surveillance programs.
The Wikimedia Foundation, the organization that runs Wikipedia, last month asked the nation’s highest court to hear arguments on its lawsuit over the National Security Agency’s warrantless surveillance of Americans’ international phone and email communications. The organization, represented by the American Civil Liberties Union, has been fighting the NSA in court over such “upstream surveillance” for the past seven years.
At the heart of the case is a question about how broadly the government can invoke its state secrets privilege to block civil cases from moving forward if they involve disclosing information that is “reasonably likely to cause significant harm to the national defense or the diplomatic relations” of the United States. The NSA’s critics argue that the agency’s definition of such information has expanded over time, without apparent justification.
On one side, there is one of the largest archives of human information, maintained and edited by millions of people across the world. On the other is the U.S. government invoking a law that is specifically designed to curtail the spread of information — or at least information it deems unfit to be shared.
Corbin Barthold, internet policy counsel at the nonprofit group TechFreedom, said that the focus of the case on the scope and expansion of the state secrets privilege makes it “catnip” for the Supreme Court, with potential interest from both members of the court’s conservative majority and its liberal minority. For example, Justice Neil Gorsuch, appointed by then-President Donald Trump, has pushed for stronger protections under the Fourth Amendment, which protects people from unreasonable searches and seizures. Moreover, the 4th Circuit Court of Appeals — the last body to weigh in on the case — split on the matter.
Barthold also noted that it has been years since the high court has heard a case examining how broadly the government can apply the national security law.
But as with most things when it comes to the Supreme Court, nothing is a given.
“We’ve always seen mass surveillance as a really significant threat to the privacy and free expression rights not just of Wikimedia users, but internet users in general,” said James Buatti, senior manager for legal, governance and risk at Wikimedia. “We’ve always believed that nobody should have to worry about their government looking over their shoulder when they’re deciding whether to read an article or contribute to a controversial topic. So filing this case back then was kind of an easy decision.”
The Department of Justice declined to comment, citing the ongoing litigation.
State secrets and surveillance
Details of the NSA’s behind-the-scenes practices and its exhaustive surveillance of people in the U.S. and elsewhere burst into public view in 2013, when former intelligence contractor Edward Snowden disclosed them to multiple news organizations.
The Wikimedia suit centers on one of these methods, upstream surveillance. It entails collecting all communications that people in the U.S. have with parties outside of the country. This type of dragnet, authorized under Section 702 of 2008 amendments to the Foreign Intelligence Surveillance Act of 1978, pulls in things like emails, search engine entries and what people browse online. The government is able to collect this information by tapping into the internet “backbone,” which includes the high-capacity cables and routers our data travels across to make the internet function around the world. The NSA searches this information using thousands of keywords, the results of which the government says it further analyzes to pick up on potential threats to national security. But that’s not always where use of the information stops.
“It’s easy to lose sight of the way that data that was originally collected in the name of national security can potentially flow to police or any number of investigations,” said Albert Fox Cahn, founder and executive director of the Surveillance Technology Oversight Project (STOP). “All that’s stopping it is the belief in the goodwill of agencies that have systematically violated our trust at every turn.”
Wikimedia contends that given this surveillance, it cannot ensure the confidentiality of the tens of millions of people who read, edit and communicate about Wikipedia, one of the largest repositories of human information to ever exist.
Aeryn Palmer, legal director of compliance at the Wikimedia Foundation, said that the ability to read and to contribute to Wikipedia under a pseudonym has been important since the project’s earliest days.
“When we think about what we might be collecting from anyone who visits the site, when we think about how we do research with our readers or with our contributors to better understand what sorts of features they might like to see and how they want the projects to evolve, we’re continually thinking about how we can best protect their privacy,” said Palmer.
Just what is a state secret?
Wikimedia’s suit hinges on state secrets privilege, which the government has repeatedly used to fend off legal challenges to upstream surveillance. It has argued, in this case and others, that upstream surveillance is so secret that legal challenges to it cannot proceed.
“The NSA has vacuumed up Americans and international communications using upstream surveillance, and to date not a single challenge to that surveillance has been allowed to go forward,” said Patrick Toomey, deputy director of the American Civil Liberties Union’s national security project and one of the attorneys representing Wikimedia. “The Supreme Court must make clear that NSA surveillance is not beyond the reach of our public courts.”
He argued that the government has continued to expand its use of the state secrets law as a cudgel to bat away civil litigation.
Toomey pointed to a lawsuit filed in 2007 by Khaled El Masri, a German citizen with Lebanese roots who was abducted by Macedonian police before they handed him to the CIA, claiming that the CIA kidnapped and tortured him in a case of mistaken identity. An appellate court recognized there was public evidence of El Masri’s mistreatment but decided that state secrets were too central to the case to allow it to go forward.
Similarly, in 2010, five people filed a lawsuit claiming that one of Boeing’s subsidiary companies had flown the planes carrying them to the black sites where they were tortured by the CIA. An appeals court dismissed that case as well, along similar lines of reasoning as the El Masri verdict. Both times, the government invoked state secrets privilege.
“In Wikimedia’s current lawsuit, the government has taken the maximalist approach and asked the courts to dismiss the case on state secrets grounds, even though the government itself has released dozens of official reports, court opinions and other documents about upstream surveillance,” said Toomey.
The chilling effect of surveillance
One reason that the NSA has successfully fended off lawsuits using state secrets privilege is that in many cases regarding surveillance, plaintiffs were not able to show harm.
The Wikimedia case is different. The foundation has relied on an analysis by Jon Penney, a legal scholar and social scientist at York University in Toronto, that quantifies the impact of government surveillance on Wikipedia articles.
The 2016 analysis measured the “chilling effect” of surveillance, or how people act differently — sometimes including censoring themselves — if they have reason to believe they are being watched.
Penney found that following reports of Snowden’s exposure, traffic to Wikipedia articles on topics that “raise privacy concerns for Wikipedia users decreased” in a statistically significant manner.
The researcher arrived at that conclusion by choosing Wikipedia pages based off keywords the Department of Homeland Security uses to monitor social media, such as “infrastructure security,” “terrorism” and “cybersecurity.” Penney honed in on the category terrorism, which included terms like “Iran,” “pirates” and “suspicious substance.”
But he noted that more recent discussions about chilling effects have gone beyond national security issues. In the wake of the Supreme Court decision striking down Roe v. Wade, for instance, civil liberties and pro-choice groups have revived conversations around the chilling effect of government surveillance — specifically around cellphone, phone app and web search data that could inadvertently reveal when a person is pregnant or seeking an abortion.
“You have a combination of government surveillance combined with overreaching laws combined with governments essentially whipping up harassment campaigns against people who are out there just simply attempting to vindicate their rights,” said Penney. “So, I think [privacy] is a concept that is in increasingly important.”
An earlier version of this story misidentified the genesis of the government's state secret claims. This version has been updated.
Thanks to Lillian Barkley for copy editing this article.