Wikimedia Found. v. Nat'l Sec. Agency

Decision Date23 May 2017
Docket NumberNo. 15-2560,15-2560
Parties WIKIMEDIA FOUNDATION; National Association of Criminal Defense Attorneys ; Human Rights Watch; Pen American Center; Global Fund for Women ; The Nation Magazine; The Rutherford Institute; Washington Office on Latin America; Amnesty International USA, Plaintiffs-Appellants, v. NATIONAL SECURITY AGENCY/Central Security Service; Admiral Michael S. Rogers, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service; Office of the Director of National Intelligence; Daniel R. Coats, in his official capacity as Director of National Intelligence; Department of Justice; Jefferson B. Sessions III, in his official capacity as Attorney General of the United States, Defendants-Appellees. Computer Scientists and Technologists; Reporters Committee for Freedom of the Press; The Thomas Jefferson Center for the Protection of Free Expression; American Society of News Editors; Association of Alternative Newsmedia; First Amendment Coalition; First Look Media, Inc.; Free Press; Freedom of the Press Foundation; Gatehouse Media; International Documentary Association ; Investigative Reporters and Editors, Incorporated; Investigative Reporting Workshop at American University; The Media Consortium ; National Press Photographers Association ; North Jersey Media Group, Incorporated; Online News Association; Radio Television Digital News Association; Reporters Without Borders; Tully Center for Free Speech; United States Justice Foundation; Free Speech Defense and Education Fund; Free Speech Coalition; Western Journalism Center ; Gun Owners of America, Inc. ; Gun Owners Foundation; Downsize DC Foundation; DownsizeDC.org; Conservative Legal Defense and Education Fund; Institute on the Constitution ; Policy Analysis Center ; Law Professors; Electronic Frontier Foundation; First Amendment Legal Scholars, Amici Supporting Appellants.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Patrick Christopher Toomey, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellants. Catherine H. Dorsey, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Jameel Jaffer, Alexander Abdo, Ashley Gorski, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Deborah A. Jeon, David R. Rocah, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND, Baltimore, Maryland; Charles S. Sims, David A. Munkittrick, PROSKAUER ROSE LLP, New York, New York, for Appellants. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Douglas N. Letter, H. Thomas Byron III, Michael Shih, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellees. Jennifer Stisa Granick, Director of Civil Liberties, Center for Internet and Society, STANFORD LAW SCHOOL, Stanford, California; Matthew J. Craig, SHAPIRO ARATO LLP, New York, New York, for Amicus Computer Scientists and Technologists. Margot E. Kaminski, Assistant Professor of Law, Moritz College of Law, THE OHIO STATE UNIVERSITY, Columbus, Ohio; Chelsea J. Crawford, Joshua R. Treem, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Amicus First Amendment Legal Scholars. J. Joshua Wheeler, Thomas Jefferson Center for the Protection of Free Expression and First Amendment Clinic, THE UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia; Bruce D. Brown, Gregg P. Leslie, Hannah Bloch-Wehba, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Washington, D.C.; Peter Scheer, FIRST AMENDMENT COALITION, San Rafael, California; Lynn Oberlander, General Counsel, Media Operations, FIRST LOOK MEDIA, INC., New York, New York; Matthew F. Wood, FREE PRESS, Washington, D.C.; Polly Grunfeld Sack, SVP, General Counsel and Secretary, GATEHOUSE MEDIA, LLC, Pittsford, New York; Jennifer A. Borg, General Counsel, NORTH JERSEY MEDIA GROUP, INCORPORATED, Woodland Park, New Jersey, for Amici Reporters Committee for Freedom of the Press, The Thomas Jefferson Center for the Protection of Free Expression, American Society of News Editors, Association of Alternative Newsmedia, First Amendment Coalition, First Look Media, Inc., Free Press, Freedom of the Press Foundation, Gatehouse Media, International Documentary Association, Investigative Reporters and Editors, Incorporated, Investigative Reporting Workshop at American University, The Media Consortium, National Press Photographers Association, North Jersey Media Group, Incorporated, Online News Association, Radio Television Digital News Association, Reporters Without Borders, and Tully Center for Free Speech. Kevin M. Goldberg, FLETCHER, HEALD & HILDRETH, PLC, Arlington, Virginia, for Amici American Society of News Editors and Association of Alternative Newsmedia. Marcia Hofmann, ZEITGEIST LAW PC, San Francisco, California, for Amicus Freedom of the Press Foundation. Mickey H. Osterreicher, Buffalo, New York, for Amicus National Press Photographers Association. Laura R. Handman, Alison Schary, Washington, D.C., Thomas R. Burke, DAVIS WRIGHT TREMAINE LLP, San Francisco, California, for Amicus Online News Association. Kathleen A. Kirby, WILEY REIN LLP, Washington, D.C., for Amicus Radio Television Digital News Association. Michael Connelly, UNITED STATES JUSTICE FOUNDATION, Ramona, California, for Amicus United States Justice Foundation. Robert J. Olson, Herbert W. Titus, William J. Olson, Jeremiah L. Morgan, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici United States Justice Foundation, Free Speech Defense and Education Fund, Free Speech Coalition, Western Journalism Center, Gun Owners of America, Inc., Gun Owners Foundation, Downsize DC Foundation, DownsizeDC.org, Conservative Legal Defense and Education Fund, Institute on the Constitution, and Policy Analysis Center. Adam Steinman, Professor of Law, UNIVERSITY OF ALABAMA SCHOOL OF LAW, Tuscaloosa, Alabama, for Amicus Law Professors. Sophia Cope, Mark Rumold, Andrew Crocker, Jaime Williams, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California, for Amicus Electronic Frontier Foundation.

Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Diaz wrote the opinion, in which Judge Motz joined and in which Senior Judge Davis joined in part. Senior Judge Davis wrote a separate opinion dissenting in part.

DIAZ, Circuit Judge:

The Wikimedia Foundation and eight other organizations appeal the dismissal of their complaint challenging Upstream surveillance, an electronic surveillance program operated by the National Security Agency (the "NSA"). The district court, relying on the discussion of speculative injury from Clapper v. Amnesty International USA , 568 U.S. 398, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013), held that the allegations in the complaint were too speculative to establish Article III standing. We conclude that Clapper 's analysis of speculative injury does not control this case, since the central allegations here are not speculative. Accordingly, as for Wikimedia, we vacate and remand because it makes allegations sufficient to survive a facial challenge to standing. As for the other Plaintiffs, we affirm because the complaint does not contain enough well-pleaded facts entitled to the presumption of truth to establish their standing.

I.
A.

Before diving into the details of Plaintiffs' complaint, we provide an overview of the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. § 1801 et seq. , the statute from which the government derives its authority to conduct Upstream surveillance.

Congress enacted FISA in 1978 to regulate electronic surveillance undertaken to gather foreign intelligence information. David S. Kris & J. Douglas Wilson, National Security Investigations and Prosecutions § 3:8 (2d ed.), Westlaw (database updated Aug. 2016) (hereinafter Kris & Wilson); see also 50 U.S.C. § 1801 (defining electronic surveillance). FISA created two specialized courts—the Foreign Intelligence Surveillance Court (the "FISC"), from which the government generally must obtain authorization before conducting electronic surveillance, and the Foreign Intelligence Surveillance Court of Review, which has jurisdiction to review the denial of a FISA application for electronic surveillance. Kris & Wilson § 5:1. As originally enacted, FISA required the government to demonstrate probable cause to believe that the target of its surveillance was "a foreign power or an agent of a foreign power," and that the facility or place at which surveillance would be directed was "being used, or is about to be used, by a foreign power or an agent of a foreign power." 50 U.S.C. § 1805(a)(2) ; see also Kris & Wilson § 7:2.

"Until 2008, FISA applied only to investigative conduct inside the United States." Kris & Wilson § 4:2. That changed through the FISA Amendments Act of 2008, which authorized the government to acquire foreign-intelligence information by targeting for up to one year non-U.S. persons reasonably believed to be abroad. See 50 U.S.C. § 1881a. FISA Section 702, 50 U.S.C. § 1881a, sets forth the process for obtaining that authority.

Generally, the Attorney General and the Director of National Intelligence initiate the process by submitting a "certification" regarding the proposed surveillance to the FISC for approval. Id. § 1881a(g)(1)(A).

That certification must attest, inter alia, that:

(1) procedures are in place "that ... are reasonably designed" to ensure that an acquisition is "limited to targeting persons reasonably believed to be located outside" the United States; (2) minimization procedures adequately restrict the acquisition, retention, and dissemination of nonpublic information about unconsenting U.S. persons ...; (3) guidelines have been adopted to ensure compliance with targeting limits and the Fourth Amendment; and (4) the procedures and guidelines ...
...

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