Today, the Stanford Center for Internet and Society and attorney Matthew J. Craig of Shapiro Arato LLP filed an amicus brief on behalf of Internet networking experts and other computer scientists arguing that the ACLU's challenge to warrantless wiretapping under the FISA Amendments Act should have its day in court. The case brought by Wikimedia Foundation and the ACLU's other clients was dismissed after the government argued that Wikimedia and other heavy users of the Internet for international communications can't show a probability that their communications were seized and searched by NSA. (They don't have to show a certainty.) The judge agreed, saying that Wikimedia's assertion it's Internet communications were seized and searched by the NSA was speculative. Therefore he dismissed the case for lack of standing.
This is a technical issue as much as a legal one. Amici, who include Dr. Nicholas Weaver, an expert on network security, worms, botnets, and network measurement, assert that the trial court's ruling was based on lack of technical information about how one searches content on packet switched networks. The information publicly available on the NSA's Upstream program, combined with an understanding of how the Internet works, leads to the inevitable conclusion that the NSA is copying and searching all communications that flow through the particular points on the Internet “backbone” at which the NSA has surveillance devices. Plaintiff Wikimedia plausibly alleged that its trillion international communications per year traverse every one of these circuits. Therefore, it practically certain, as a technical matter, that some of Plaintiff Wikimedia’s communications have been subject to Upstream surveillance. For these reasons, amici assert that the appellate Court should find that Plaintiffs have standing, reverse the District Court decision, and allow the lawsuit to proceed.
The case is Wikimedia v. NSA and is now on appeal to the Fourth Circuit Court of Appeals.
For more about the controversial provision of the FISA Amendments Act under which the NSA is conducting electronic surveillance of Wikimedia Foundation and others (known as section 702), read Jennifer Granick on this blog, and at Just Security.