Wikipedia case against NSA internet snooping returns to court

Attorneys for Wikipedia are scheduled to return to federal court next week in a long-running fight to limit government surveillance of internet messages.

The case has seen some successes, including an appeals court win on standing in 2017, and civil libertarians see the case as a way to stop the National Security Agency from siphoning data from the internet’s backbone to store for warrantless searches.

The Trump administration argues the case cannot be decided without harming government secrets, however. A similar case, filed in 2008 by the Electronic Frontier Foundation, was dismissed last month by a judge in California who found a “fair and full adjudication” would require “potentially harmful disclosures of national security information.”

Filed in 2015, the Wikimedia Foundation case predates the term “FISA abuse” as applied to a warrant against Trump campaign associate Carter Page and instead focuses on a program operated under the Foreign Intelligence Surveillance Act that could affect anyone.

The Wikimedia Foundation, represented by the American Civil Liberties Union, relies on math to argue the NSA is intercepting its messages as part of Upstream collection, a program that takes records from major internet cables and switches. Although set up to target terrorists and spies, records "incidentally" collected on U.S. citizens can be searched without a warrant.

“Wikimedia, with trillions of communications, is a different kind of plaintiff,” a filing this month argued. “The immense volume and global distribution of Wikimedia’s communications ensures that its communications travel on every possible Internet path into and out of the country.”

The most recent filing urges U.S. District Judge T.S. Ellis to privately review classified evidence after May 30 oral arguments, before ruling on a Trump administration motion to dismiss. The online giant said additional secrets don't need to be disclosed for it to prevail in the case.

Ellis, who works from a courtroom in Alexandria, Va., became nationally known this year presiding over former Trump campaign chairman Paul Manafort’s trial. He questioned the rationale for prosecuting Manafort and demanded to see a secret document setting the scope of special counsel Robert Mueller’s Russia investigation. Ultimately, Ellis sharply deviated from sentencing guidelines, giving Manafort fewer than 4 years in prison, rather than 19-24 years.

ACLU attorney Patrick Toomey, who is representing Wikimedia, gave an upbeat assessment, saying he believes the law requires Ellis to review evidence before ruling.

“Congress has authorized courts to use special safeguards in surveillance cases like this one, rather than dismissing those cases outright. A ruling for Wikimedia would allow this challenge to move forward based on the extensive public record, and it would ensure that our courts have the chance to determine whether the NSA’s spying is lawful,” Toomey said.

Attorney Kurt Opsahl of the Electronic Frontier Foundation said in a recent interview that the stakes are high.

"Millions of ordinary Americans are being swept up in this dragnet. The notion is we sweep up everything, and then, we look for what we need. It’s turning the Fourth Amendment on its head," Opsahl said.

The section of law that the NSA says allows for the internet collection, Section 702 of the Foreign Intelligence Surveillance Act, was renewed last year by President Trump without significant changes, following failed attempts in Congress to prevent alleged “backdoor searches” of records on U.S. citizens.

The Wikimedia case is one of the final legal challenges filed specifically in response to former NSA contractor Edward Snowden’s 2013 disclosures. Most other cases have been ruled moot after Congress ended a dragnet phone-record program.

Ellis initially ruled against Wikimedia before being reversed on standing, or the legal right to sue, by a panel of the U.S. Court of Appeals for the 4th Circuit.

The judge is likely to turn heads during oral arguments, as he did in the Manafort case. During a 2015 hearing, he questioned the adequacy of the secret court handling FISA warrants and gave colorful commands to attorneys on both sides.

“When I start [talking] you need to stop,” Ellis told a prominent Justice Department attorney in 2015, adding to Toomey: “This isn’t politics, you’re not on the stump!”

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