Wikimedia Found. v. Nat'l Sec. Agency /Cent. Sec. Serv.

• Decision Date: 15 September 2021
• Docket Number: No. 20-1191,20-1191
• Parties: WIKIMEDIA FOUNDATION, Plaintiff - Appellant, and 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, v. NATIONAL SECURITY AGENCY /CENTRAL SECURITY SERVICE; General Paul M. Nakasone, 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; Richard Grenell, in his official capacity as acting Director of National Intelligence; Merrick B. Garland, Attorney General; Department of Justice, Defendants – Appellees. Center for Democracy & Technology; New America's Open Technology Institute; David H. Kaye, Evidence Law Professor; Edward J. Imwinkelried, Evidence Law Professor; D. Michael Risinger, Evidence Law Professor; Rebecca Wexler, Evidence Law Professor; Professor Stephen I. Vladeck; Americans for Prosperity Foundation ; Brennan Center for Justice; Electronic Frontier Foundation; Electronic Privacy Information Center; Freedomworks Foundation; TechFreedom ; Network Engineers and Technologists, Amici Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

14 F.4th 276

WIKIMEDIA FOUNDATION, Plaintiff - Appellant,andNational 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,

v. NATIONAL SECURITY AGENCY /CENTRAL SECURITY SERVICE; General Paul M. Nakasone, 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; Richard Grenell, in his official capacity as acting Director of National Intelligence; Merrick B. Garland, Attorney General; Department of Justice, Defendants – Appellees.Center for Democracy & Technology; New America's Open Technology Institute; David H. Kaye, Evidence Law Professor; Edward J. Imwinkelried, Evidence Law Professor; D. Michael Risinger, Evidence Law Professor; Rebecca Wexler, Evidence Law Professor; Professor Stephen I. Vladeck; Americans for Prosperity Foundation ; Brennan Center for Justice; Electronic Frontier Foundation; Electronic Privacy Information Center; Freedomworks Foundation; TechFreedom ; Network Engineers and Technologists, Amici Supporting Appellant.

No. 20-1191

United States Court of Appeals, Fourth Circuit.

Argued: March 12, 2021

Decided: September 15, 2021

ARGUED: Patrick Christopher Toomey, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellant. Joseph Forrest Busa, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Deborah A. Jeon, David R. Rocah, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND, Baltimore, Maryland; Ashley Gorski, Charles Hogle, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Benjamin H. Kleine, COOLEY LLP, San Francisco, California; Alex Abdo, Jameel Jaffer, KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, New York, New York, for Appellant. Ethan P. Davis, Acting Assistant Attorney General, H. Thomas Byron III, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Avery W. Gardiner, Gregory T. Nojeim, Mana Azarmi, Stan Adams, CENTER FOR DEMOCRACY & TECHNOLOGY, Washington, D.C.; Sharon Bradford Franklin, Ross Schulman, NEW AMERICA'S OPEN TECHNOLOGY INSTITUTE, Washington, D.C.; Andrew A. Bank, Bret S. Cohen, Allison M. Holt Ryan, Stevie N. DeGroff, HOGAN LOVELS US LLP, Washington, D.C., for Amici Center for Democracy & Technology and New America's Open Technology Institute. Benjamin B. Au, W. Henry Huttinger, Los Angeles, California, Aditya V. Kamdar, DURIE TANGRI LLP, San Francisco, California, for Amici Evidence Law Professors. Lauren Gallo White, San Francisco, California, Brian M. Willen, WILSON SONSINI GOODRICH & ROSATI PROFESSIONAL CORPORATION, New York, New York, for Amicus Professor Stephen I. Vladeck. Eric R. Bolinder, AMERICANS FOR PROSPERITY FOUNDATION, Arlington, Virginia; Sophia Cope, Mark Rumold, Andrew Cocker, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California, for Amici Americans for Prosperity Foundation, Brennan Center for Justice, Electronic Frontier Foundation, Electronic Privacy Information Center, FreedomWorks Foundation, and TechFreedom. Jonathan Blavin, Elizabeth Kim, Alexander Gorin, MUNGER, TOLLES & OLSON LLP, San Francisco, California, for Amici Network Engineers and Technologists.

Before MOTZ, DIAZ, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the majority opinion, in which Judge Motz joined as to Parts I and II.A, and in which Judge Rushing joined as to Part II.B.2 and C. Judge Motz wrote an opinion concurring in part and dissenting in part. Judge Rushing wrote an opinion concurring in part and in the judgment.

DIAZ, Circuit Judge:

We consider, for the second time, the Wikimedia Foundation's contentions that the government is spying on its communications using Upstream, an electronic surveillance program run by the National Security Agency ("NSA"). In the first appeal, we found Wikimedia's allegations of Article III standing sufficient to survive a motion to dismiss and vacated the district court's judgment to the contrary. On remand, the court again dismissed the case, holding that Wikimedia didn't establish a genuine issue of material fact as to standing and that further litigation would unjustifiably risk the disclosure of state secrets.

Although the district court erred in granting summary judgment to the government as to Wikimedia's standing, we agree that the state secrets privilege requires the termination of this suit. We thus affirm.

I.

Our prior opinion contains many of the relevant facts, including descriptions of the Upstream surveillance program and its authorizing statute, Section 702 of the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. § 1881a. See Wikimedia Found. v. Nat'l Sec. Agency /Cent. Sec. Serv. , 857 F.3d 193, 200–07 (4th Cir. 2017). We take a moment here to briefly review the inner workings of Upstream, recap our previous decision, and relate what has occurred since then.

A.

As its name suggests, Upstream surveillance involves the NSA's collection of communications on the Internet backbone, "upstream" of the Internet user, by compelling the assistance of telecommunications-service providers. By contrast, the NSA obtains the "vast majority" of Internet communications collected under Section 702 directly from a user's Internet-service provider through the PRISM surveillance program, Redacted , 2011 WL 10945618, at *9 & n.23 (FISA Ct. Oct. 3, 2011), which isn't at issue here.

The Internet backbone consists of domestic "high-speed, ultra-high bandwidth data-transmission lines" and the relatively limited number of submarine and terrestrial circuits that carry Internet communications into and out of the United States, J.A. 2739, which are often referred to as "chokepoint" cables. More specifically:

The NSA performs Upstream surveillance by first identifying a target and then identifying "selectors" for that target. Selectors are the specific means by which the target communicates, such as e-mail addresses or telephone numbers. Selectors cannot be keywords (e.g., "bomb") or names of targeted individuals (e.g., "Bin Laden").

The NSA then "tasks" selectors for collection and sends them to telecommunications-service providers. Those providers must assist the government in intercepting communications to, from, or "about" the selectors. "About" communications are those that contain a tasked selector in their content, but are not to or from the target.

Wikimedia Found ., 857 F.3d at 202.¹

Importantly, "[w]hile Upstream surveillance is intended to acquire Internet communications , it does so through the acquisition of Internet transactions ." Id. at 203 (cleaned up). When an individual sends a communication over the Internet, it's broken up into one or more data packets that are transmitted to, and reassembled by, the receiving device. Each packet travels separately across the Internet backbone. This means that packets may take different paths to the recipient, and while in transit, they're mixed with countless other packets making their own journeys.

"[A] complement of packets traversing the Internet that together may be understood by a device on the Internet" as one or many discrete communications comprises an Internet "transaction." Redacted , 2011 WL 10945618, at *9 n.23 (quoting a government submission to the Foreign Intelligence Surveillance Court ("FISC")). "If a single discrete communication within [a ‘multi-communication transaction’] is to, from, or [until 2017] about, a Section 702-tasked selector, and at least one end of the transaction is foreign, the NSA will acquire the entire [multi-communication transaction]." Privacy & Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act 44 (2014) ("PCLOB Report").

B.

Wikimedia and eight other plaintiffs sued the government, seeking "among other things, a declaration that Upstream surveillance violates the First and Fourth Amendments, an order permanently enjoining the NSA from conducting Upstream surveillance, and an order directing the NSA to purge all records of Plaintiffs’ communications" obtained through Upstream surveillance. Wikimedia Found ., 857 F.3d at 202 (cleaned up). The district court dismissed the case for lack of Article III standing, and the plaintiffs appealed.

Article III "[s]tanding is part and parcel of the constitutional mandate that the judicial power of the United States extend only to ‘cases’ and ‘controversies.’ " Libertarian Party of Va. v. Judd , 718 F.3d 308, 313 (4th Cir. 2013) (quoting U.S. Const. art. III, § 2). To establish standing, a plaintiff must show: "(1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision." Susan B. Anthony List v. Driehaus , 573 U.S. 149, 157–58, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (cleaned up).

In what we called the "Wikimedia Allegation," Wikimedia claimed it had standing because (1) its communications travel across every international Internet link² ; (2) the NSA conducts Upstream surveillance on at least one such link; and (3) "in order for the NSA to reliably obtain communications to, from, or about its targets in the way it has described, the government must be copying and reviewing all the international text-based communications that travel across a given link." J.A. 57.

Together, these assertions were "sufficient to make plausible the conclusion that the NSA is intercepting, copying, and reviewing at least some of Wikimedia's communications," establishing an injury-in-fact for a Fourth Amendment violation. Wikimedia Found. , 857 F.3d at 211. "And, because Wikimedia has self-censored its speech and sometimes forgone electronic communications" as a result of that surveillance, it established an...