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Wikimedia Foundation v. National Security Agency/Central Security Service

United States Court of Appeals, Fourth Circuit

May 23, 2017

WIKIMEDIA FOUNDATION; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE ATTORNEYS; HUMAN RIGHTS WATCH; PEN AMERICAN CENTER; GLOBAL FUND FORWOMEN; THE NATION MAGAZINE; THE RUTHERFORD INSTITUTE; WASHINGTON OFFICE ON LATIN AMERICA; AMNESTY INTERNATIONAL USA, Plaintiffs - Appellants,
v.
NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE; ADMIRAL MICHAEL S. ROGERS, 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; DANIEL R. COATS, in his official capacity as Director of National Intelligence; DEPARTMENT OF JUSTICE; JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States, Defendants-Appellees. COMPUTER SCIENTISTS AND TECHNOLOGISTS; REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE EXPRESSION; AMERICAN SOCIETY OF NEWS EDITORS; ASSOCIATION OF ALTERNATIVE NEWSMEDIA; FIRST AMENDMENT COALITION; FIRST LOOK MEDIA, INC.; FREE PRESS; FREEDOM OF THE PRESS FOUNDATION; GATEHOUSE MEDIA; INTERNATIONAL DOCUMENTARY ASSOCIATION; INVESTIGATIVE REPORTERS AND EDITORS, INCORPORATED; INVESTIGATIVE REPORTING WORKSHOP AT AMERICAN UNIVERSITY; THE MEDIA CONSORTIUM; NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION; NORTH JERSEY MEDIA GROUP, INCORPORATED; ONLINE NEWS ASSOCIATION; RADIO TELEVISION DIGITAL NEWS ASSOCIATION; REPORTERS WITHOUT BORDERS; TULLY CENTER FOR FREE SPEECH; UNITED STATES JUSTICE FOUNDATION; FREE SPEECH DEFENSE AND EDUCATION FUND; FREE SPEECH COALITION; WESTERN JOURNALISM CENTER; GUN OWNERS OF AMERICA, INC.; GUN OWNERS FOUNDATION; DOWNSIZE DC FOUNDATION; DOWNSIZEDC.ORG; CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND; INSTITUTE ON THE CONSTITUTION; POLICY ANALYSIS CENTER; LAW PROFESSORS; ELECTRONIC FRONTIER FOUNDATION; FIRST AMENDMENT LEGAL SCHOLARS, Amici Supporting Appellants.

          Argued: December 8, 2016

         Appeal from the United States District Court for the District of Maryland, at Baltimore. T. S. Ellis, III, Senior District Judge. (1:15-cv-00662-TSE)

         ARGUED:

          Patrick Christopher Toomey, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellants.

          Catherine H. Dorsey, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

         ON BRIEF:

          Jameel Jaffer, Alexander Abdo, Ashley Gorski, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Deborah A. Jeon, David R. Rocah, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND, Baltimore, Maryland; Charles S. Sims, David A. Munkittrick, PROSKAUER ROSE LLP, New York, New York, for Appellants.

          Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Douglas N. Letter, H. Thomas Byron III, Michael Shih, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellees.

          Jennifer Stisa Granick, Director of Civil Liberties, Center for Internet and Society, STANFORD LAW SCHOOL, Stanford, California; Matthew J. Craig, SHAPIRO ARATO LLP, New York, New York, for Amicus Computer Scientists and Technologists. Margot E. Kaminski, Assistant Professor of Law, Moritz College of Law, THE OHIO STATE UNIVERSITY, Columbus, Ohio; Chelsea J. Crawford, Joshua R. Treem, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Amicus First Amendment Legal Scholars. J. Joshua Wheeler, Thomas Jefferson Center for the Protection of Free Expression and First Amendment Clinic, THE UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia; Bruce D. Brown, Gregg P. Leslie, Hannah Bloch-Wehba, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Washington, D.C.; Peter Scheer, FIRST AMENDMENT COALITION, San Rafael, California; Lynn Oberlander, General Counsel, Media Operations, FIRST LOOK MEDIA, INC., New York, New York; Matthew F. Wood, FREE PRESS, Washington, D.C.; Polly Grunfeld Sack, SVP, General Counsel and Secretary, GATEHOUSE MEDIA, LLC, Pittsford, New York; Jennifer A. Borg, General Counsel, NORTH JERSEY MEDIA GROUP, INCORPORATED, Woodland Park, New Jersey, for Amici Reporters Committee for Freedom of the Press, The Thomas Jefferson Center for the Protection of Free Expression, American Society of News Editors, Association of Alternative Newsmedia, First Amendment Coalition, First Look Media, Inc., Free Press, Freedom of the Press Foundation, Gatehouse Media, International Documentary Association, Investigative Reporters and Editors, Incorporated, Investigative Reporting Workshop at American University, The Media Consortium, National Press Photographers Association, North Jersey Media Group, Incorporated, Online News Association, Radio Television Digital News Association, Reporters Without Borders, and Tully Center for Free Speech. Kevin M. Goldberg, FLETCHER, HEALD & HILDRETH, PLC, Arlington, Virginia, for Amici American Society of News Editors and Association of Alternative Newsmedia. Marcia Hofmann, ZEITGEIST LAW PC, San Francisco, California, for Amicus Freedom of the Press Foundation.

          Mickey H. Osterreicher, Buffalo, New York, for Amicus National Press Photographers Association. Laura R. Handman, Alison Schary, Washington, D.C., Thomas R. Burke, DAVIS WRIGHT TREMAINE LLP, San Francisco, California, for Amicus Online News Association. Kathleen A. Kirby, WILEY REIN LLP, Washington, D.C., for Amicus Radio Television Digital News Association. Michael Connelly, UNITED STATES JUSTICE FOUNDATION, Ramona, California, for Amicus United States Justice Foundation.

          Robert J. Olson, Herbert W. Titus, William J. Olson, Jeremiah L. Morgan, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici United States Justice Foundation, Free Speech Defense and Education Fund, Free Speech Coalition, Western Journalism Center, Gun Owners of America, Inc., Gun Owners Foundation, Downsize DC Foundation, DownsizeDC.org, Conservative Legal Defense and Education Fund, Institute on the Constitution, and Policy Analysis Center. Adam Steinman, Professor of Law, UNIVERSITY OF ALABAMA SCHOOL OF LAW, Tuscaloosa, Alabama, for Amicus Law Professors. Sophia Cope, Mark Rumold, Andrew Crocker, Jaime Williams, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California, for Amicus Electronic Frontier Foundation.

          Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge.

          DIAZ, Circuit Judge:

         The Wikimedia Foundation and eight other organizations appeal the dismissal of their complaint challenging Upstream surveillance, an electronic surveillance program operated by the National Security Agency (the "NSA"). The district court, relying on the discussion of speculative injury from Clapper v. Amnesty International USA, 133 S.Ct. 1138 (2013), held that the allegations in the complaint were too speculative to establish Article III standing. We conclude that Clapper's analysis of speculative injury does not control this case, since the central allegations here are not speculative. Accordingly, as for Wikimedia, we vacate and remand because it makes allegations sufficient to survive a facial challenge to standing. As for the other Plaintiffs, we affirm because the complaint does not contain enough well-pleaded facts entitled to the presumption of truth to establish their standing.

         I.

         A.

         Before diving into the details of Plaintiffs' complaint, we provide an overview of the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. § 1801 et seq., the statute from which the government derives its authority to conduct Upstream surveillance.

         Congress enacted FISA in 1978 to regulate electronic surveillance undertaken to gather foreign intelligence information. David S. Kris & J. Douglas Wilson, National Security Investigations and Prosecutions § 3:8 (2d ed.), Westlaw (database updated Aug. 2016) (hereinafter Kris & Wilson); see also 50 U.S.C. § 1801 (defining electronic surveillance). FISA created two specialized courts-the Foreign Intelligence Surveillance Court (the "FISC"), from which the government generally must obtain authorization before conducting electronic surveillance, and the Foreign Intelligence Surveillance Court of Review, which has jurisdiction to review the denial of a FISA application for electronic surveillance. Kris & Wilson § 5:1. As originally enacted, FISA required the government to demonstrate probable cause to believe that the target of its surveillance was "a foreign power or an agent of a foreign power, " and that the facility or place at which surveillance would be directed was "being used, or is about to be used, by a foreign power or an agent of a foreign power." 50 U.S.C. § 1805(a)(2); see also Kris & Wilson § 7:2.

         "Until 2008, FISA applied only to investigative conduct inside the United States." Kris & Wilson § 4:2. That changed through the FISA Amendments Act of 2008, which authorized the government to acquire foreign-intelligence information by targeting for up to one year non-U.S. persons reasonably believed to be abroad. See 50 U.S.C. § 1881a. FISA Section 702, 50 U.S.C. § 1881a, sets forth the process for obtaining that authority.

         Generally, the Attorney General and the Director of National Intelligence initiate the process by submitting a "certification" regarding the proposed surveillance to the FISC for approval. Id. § 1881a(g)(1)(A). That certification must attest, inter alia, that:

(1) procedures are in place "that . . . are reasonably designed" to ensure that an acquisition is "limited to targeting persons reasonably believed to be located outside" the United States; (2) minimization procedures adequately restrict the acquisition, retention, and dissemination of nonpublic information about unconsenting U.S. persons . . .; (3) guidelines have been adopted to ensure compliance with targeting limits and the Fourth Amendment; and (4) the procedures and guidelines . . . comport with the Fourth Amendment.

Clapper, 133 S.Ct. at 1145 (quoting 50 U.S.C. § 1881a(g)(2)).

         The FISC reviews the certification to ensure that it contains the statutorily required elements and has targeting and minimization procedures that are both consistent with the Fourth Amendment and are "reasonably designed" to meet certain requirements. Id. In particular, the FISC must find that the targeting procedures are "reasonably designed" to: (i) ensure that acquisition "is limited to targeting persons reasonably believed to be located outside the United States, " and (ii) "prevent the intentional acquisition of" wholly domestic communications. 50 U.S.C. § 1881a(i)(2)(B). The FISC must also find that the minimization procedures are "reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information." Id. § 1801(h)(1); see id. § 1881a(i)(2)(C) (referring to § 1801(h)).

         Section 702 prohibits the intentional targeting of "any person known at the time of acquisition to be located in the United States, " id. § 1881a(b), but allows the government to intercept communications between a U.S. person inside the country and a foreigner abroad targeted by intelligence officials, see id. § 1881a(a)-(b); see also Kris & Wilson § 17:5. Furthermore, surveillance under Section 702 may be conducted for purposes other than counterterrorism-the statute defines "foreign intelligence information" to mean, among other things, information that relates to "the conduct of the foreign affairs of the United States, " 50 U.S.C. § 1801(e)(2)(B)-and the government need not identify "the specific facilities, places, premises, or property at which" it will direct surveillance, id. § 1881a(g)(4).

         The absence of particularity and probable cause requirements in 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).[1] 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.

         The government has acknowledged that it conducts two forms of surveillance under Section 702-PRISM and Upstream. See Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act 7 (2014) (hereinafter PCLOB Report).[2] Only Upstream is at issue here. Though the government has disclosed some information about Upstream, most technical details of the surveillance process remain classified. See Jewel v. Nat'l Sec. Agency, 810 F.3d 622, 627 (9th Cir. 2015).

         B.

         In June 2015, Plaintiffs-educational, legal, human rights, and media organizations-filed their first amended complaint wherein they ask for, 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 in their possession obtained pursuant to Upstream surveillance." J.A. 84.

         Plaintiffs make two central allegations. First, in what we refer to as the Wikimedia Allegation, Wikimedia alleges that "the sheer volume of [its] communications makes it virtually certain that the NSA has intercepted, copied, and reviewed at least some of [its] communications."[3] J.A. 46. Second, in what we refer to as the Dragnet Allegation, all nine Plaintiffs allege that in the course of conducting Upstream surveillance the NSA is "intercepting, copying, and reviewing substantially all" text-based communications entering and leaving the United States, including their own. J.A. 46. After setting forth supporting background relevant to each, we describe the Wikimedia and Dragnet Allegations.

         1.

         Plaintiffs allege that "Upstream surveillance involves the NSA's seizing and searching the [I]nternet communications of U.S. citizens and residents en masse as those communications travel across the [I]nternet 'backbone' in the United States." J.A. 40. "The [I]nternet backbone is the network of high-capacity cables, switches, and routers [administered by telecommunications-service providers] that facilitates both domestic and international communication via the [I]nternet." J.A. 40. It includes "the approximately 49 international submarine cables that carry [I]nternet communications into and out of the United States and that land at approximately 43 different points within the country." J.A. 42.

         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.

         We note an important distinction between Internet transactions and Internet communications. While Upstream surveillance "is intended to acquire Internet communications, it does so through the acquisition of Internet transactions." PCLOB Report at 39. An example illustrates the point. When an individual sends an email on the Internet, the message is broken up into one or more "data packets" which are transmitted across the Internet backbone to their destination and, upon arrival, reassembled by the recipient's computer to reconstruct the communication. The individual data packets generated by a single email can take "different routes [across the backbone] to their common destination." PCLOB Report at 125. Relatedly, when two people communicate, the data packets from the target can take a different path along the backbone than the data packets to the target. "The government describes an Internet 'transaction' as 'a complement of packets traversing the Internet that together may be understood by a device on the Internet and, where applicable, rendered in an intelligible form to the user of that device.'" Redacted, 2011 WL 10945618, at *9 n.23 (FISA Ct. Oct. 3, 2011) (quoting a government submission to the FISC).[4] An Internet transaction can comprise one or many discrete communications.

         "To identify and acquire Internet transactions associated with the Section 702-tasked selectors on the Internet backbone, Internet transactions are first filtered to eliminate potential domestic transactions, and then are screened to capture only transactions containing a tasked selector. Unless transactions pass both these screens, they are not ingested into government databases." PCLOB Report at 37. "If a single discrete communication within [a multi-communication transaction] is to, from, or 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]." PCLOB Report at 39. Once acquired, communications are subject to FISC-approved minimization procedures. The NSA's minimization procedures, for example, limit the types of queries that analysts can conduct across data sets of Section 702-acquired information.

         Plaintiffs allege that Upstream surveillance works in practice as follows. First, the NSA copies "substantially all international text-based communications-and many domestic ones-flowing across certain high-capacity cables, switches, and routers" by "[u]sing surveillance devices installed at key access points along the [I]nternet backbone." J.A. 43. Second, it "attempts to filter out and discard some wholly domestic communications, " though that effort "is incomplete." J.A. 43. Third, it reviews the full content of the copied communications for targeted selectors, including IP addresses. J.A. 43. Finally, it "retains [and with few restrictions analyzes] all communications that contain selectors associated with its targets, as well as those that happen to be bundled with them in transit." J.A. 44.

         2.

         Wikimedia asserts that the NSA is intercepting, copying, and reviewing at least some of its communications in the course of Upstream surveillance, "even if the NSA conducts Upstream surveillance on only a single [I]nternet backbone link." J.A. 49. Wikimedia, "the operator of one of the most-visited websites in the world, " alleges that it "engages in more than one trillion international communications each year, with individuals who are located in virtually every country on earth." J.A. 56. According to Wikimedia, Upstream surveillance implicates three categories of its communications: (1) communications with its community members; (2) internal "log" communications, which include users' IP addresses and the URLs of webpages sought by users; and (3) communications between its staff and individuals around the world. J.A. 55-56.

         Wikimedia further alleges that "[g]iven the relatively small number of international chokepoints, "[5] the volume of its communications, and the geographical diversity of the people with whom it communicates, its "communications almost certainly traverse every international backbone link connecting the United States with the rest of the world." J.A. 47-48. And, Wikimedia alleges, "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. 48.

         That last allegation is so, says Wikimedia, because "as a technical matter, the government cannot know beforehand which communications will contain selectors associated with its targets, and therefore it must copy and review all international text-based communications transiting [a] circuit in order to identify those of interest." J.A. 48. That is because data packets that constitute a communication "travel independently of one another, intermingled with packets of other communications in the stream of data, " and "the packets of interest cannot be segregated from other, unrelated packets in advance." J.A. 49. Thus, the NSA must "copy all such packets traversing a given backbone link, so that it can reassemble and review the transiting communications." J.A. 49.

         Tying these allegations together, Wikimedia asserts that if the NSA is monitoring a single [I]nternet backbone link, then the NSA is intercepting, copying, and reviewing at least some of Wikimedia's communications. According to Wikimedia, "the NSA has confirmed that it conducts Upstream surveillance at more than one point along the [I]nternet backbone." J.A. 49. In addition to the PCLOB Report's confirmation of the program's existence, Wikimedia points to a purported NSA slide which shows that a single telecommunications-service provider is facilitating Upstream surveillance at "seven major international chokepoints in the United States" and a purported NSA document which states that the NSA is expending significant resources to "create collection/processing capabilities at many of the chokepoints operated by U.S. providers." J.A. 50-51.

         Wikimedia has "an acute privacy interest in its communications" because its "mission and existence depend on its ability to ensure that readers and editors can explore and contribute to [its websites] privately when they choose to do so." J.A. 59-60. It has, in response to Upstream surveillance, taken burdensome steps to protect "the privacy of its communications and the confidentiality of the information it thereby receives." J.A. 60-61. Among other things, Wikimedia has "self-censor[ed] communications or forgo[ne] electronic communications altogether." J.A. 64.

         Finally, the first amended complaint alleges that "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 one-year period would be greater than 99.9999999999%." J.A. 46-47. This is an extension of the allegation that Wikimedia engages in more than one trillion international communications each year.

         3.

         In the Dragnet Allegation, Plaintiffs say that "given the way the government has described Upstream surveillance, it has a strong incentive to intercept communications at as many backbone chokepoints as possible." J.A. 49. Thus, "[i]f the government's aim is to 'comprehensively' and 'reliably' obtain communications to, from, and about targets scattered around the world, it must conduct Upstream surveillance at many different backbone chokepoints." J.A. 50.

         Plaintiffs allege that the nature of online communication, including that data packets to a target can take different routes than data packets from a target, makes this conclusion "especially true." J.A. 50. They also incorporate into their complaint a New York Times article asserting that the NSA "is temporarily copying and then sifting through the contents of what is apparently most e-mails and other text-based communications that cross the border." J.A. 51.

         Furthermore, Plaintiffs often communicate with individuals whom the NSA is likely to target through Upstream surveillance, and "[a] significant amount of the information that [they] exchange over the [I]nternet is 'foreign intelligence information.'" J.A. 52. "Because of ongoing government surveillance, including Upstream surveillance, Plaintiffs have had to take burdensome and sometimes costly measures to" protect "the confidentiality of their sensitive information." J.A. 52. Upstream surveillance ...


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