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Wikimedia upstream lawsuit underlines massive government surveillance of our Internet activity

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U.S. Court of Appeals- Fourth Circuit

U.S. Court of Appeals- Fourth Circuit

On May 23, 2017, the United States Court of Appeals for the Fourth Circuit ruled 2-1 that Wikimedia has standing to challenge upstream surveillance by the National Security Agency (“NSA”). Wikimedia says” “The government has acknowledged that it conducts two forms of surveillance under Section 702 [of the Foreign Intelligense Surveillance Act (“FISA”)] —PRISM and Upstream.” Wikimedia, et al., v. NSA, et al. , ___ F.3d. ___ (4th Cir., May 23, 2017).

Wikimedia describes upstream surveillance as follows:

“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. ‘For instance, a communication between two third parties might be acquired because it contains a targeted email address in the body of the communication.’ PCLOB Report at 119.”

Wikimedia runs scores of pages, and I have yet to review the entire opinion, but its discussion of the breath of government surveillance of our Internet activity is important enough for me to bring this case to your attention before I read the rest of the opinion. Consider:

“The absence of particularity and probable cause requirements in [FISA] Section 702 surveillance allows the government to monitor the communications of thousands of individuals and groups under a single FISC Order. See Office of the Director of National Intelligence, Calendar Year 2014 Statistical Transparency Report 1–2 (2015) (stating that in 2014 the government used its authority pursuant to Section 702 to target an estimated 92,707 persons, groups, and entities under one FISC Order). Furthermore, the minimization procedures allow the government to retain communications—including those of U.S. persons—if the government concludes that they contain “foreign intelligence” information. See Kris & Wilson §§ 9:5, 17:5.”

Again and again, criminal defendants get snagged by law enforcement for their Internet activities that they never in a million years expected to be surveilled by the government. Expecting to be anonymous online is a fantasy that needs to be erased.