Yesterday the Fourth Circuit reinstated a case brought by the Wikimedia Foundation concerning the National Security Agency’s bulk “Upstream” surveillance program. Under the Upstream program, the NSA collects traffic on the U.S. Internet backbone. The Government claims that this collection is targeted to specific queries relating to terror investigations and other intelligence matters. As a result, the government claimed, it is unlikely that any communications involving Wikimedia were reviewed by the NSA as part of the Upstream program, and therefore Wikimedia lacks standing to assert its claims. The district court, relying on Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), agreed and Granted the government’s motion to dismiss on the pleadings. The Fourth Circuit reversed.
Wikimedia alleged that that, because of the way packets travel over the network, the NSA necessarily must collect substantially all the the international text-based communications traveling over high-capacity cables, switches and routers in the U.S. The Government argued that this was a speculative assertion that should not be taken at face value even at the pleading stage. However, Wikimedia also alleged that, given the enormous number of Internet communications involving Wikimedia each year — a number Wikimedia put at over one trillion — it is nearly certain that the NSA has collected and reviewed communications involving Wikimedia even if the NSA’s data collection were limited to one trunk line. As the Complaint put it, “even if one assumes a 0.00000001% chance . . . of the NSA copying and reviewing any particular communication, the odds of the government copying and reviewing at least one of the Plaintiffs’ communications in a given one-year period would be greater than 99.9999999999%.” Complaint, 46-47.
The Government disputed these factual statistical assertions as well, but the Fourth Circuit found them plausible enough that the case should proceed. The Fourth Circuit noted that “[w]e would never confuse the plausibility of this conclusion with that accorded to Newton’s laws of motion,” but noted that the standard is merely reasonable plausibility. Opinion, at 26. The Fourth Circuit did, however, uphold the dismissal of what it termed that “Dragnet” allegations because the Complaint did not contain specific enough factual assertions about the actual scope of the NSA’s surveillance activity.
The Fourth Circuit makes some interesting interpretive moves in this Opinion relating to how Clapper should apply in cases involving bulk surveillance claims and large Internet entities. Wikimedia’s “statistical” argument seems dubious, and it seems that under the Fourth Circuit’s analysis any entity with a large Internet presence would have standing to challenge a surveillance program. Perhaps that is a good policy result, but it does not seem consistent with Clapper.
The Fourth Circuit’s Opinion is below: