The National Security Agency (NSA) engages in systematic, warrantless "upstream" surveillance of Internet communications that travel in and out of the United States along a "backbone" of fiber optic cables. The ACLU and other organizations maintain that Upstream surveillance is manifestly unconstitutional. Whether or not that is correct, the government has stymied one Fourth Amendment challenge after another on the ground that plaintiffs lacked standing because they cannot prove that the surveillance entails intercepting, copying, and reviewing any of their communications. Of course, the reason plaintiffs have no direct evidence is that the government won't admit or deny it. Instead, the government has asserted that the surveillance program is a privileged state secret, classified its details, and resisted even in camera hearings in ordinary courts.
In Wikimedia Foundation v. National Security Agency, 857 F.3d 193 (4th Cir. 2017), however, the Court of Appeals for the Fourth circuit held that the Wikimedia Foundation, which operates Wikipedia, made "allegations sufficient to survive a facial challenge to standing." Id. at 193. The court concluded that Wikimedia's allegations were plausible enough to defeat a motion to dismiss the complaint because
Wikimedia alleges three key facts that are entitled to the presumption of truth. First, “[g]iven the relatively small number of international chokepoints,” the volume of Wikimedia's communications, and the geographical diversity of the people with whom it communicates, Wikimedia's “communications almost certainly traverse every international backbone link connecting the United States with the rest of the world.”
Second, “in order for the NSA to reliably obtain communications to, from, or about its targets in the way it has described, the government,” for technical reasons that Wikimedia goes into at length, “must be copying and reviewing all the international text-based communications that travel across a given link” upon which it has installed surveillance equipment. Because details about the collection process remain classified, Wikimedia can't precisely describe the technical means that the NSA employs. Instead, it spells out the technical rules of how the Internet works and concludes that, given that the NSA is conducting Upstream surveillance on a backbone link, the rules require that the NSA do so in a certain way. ...
Third, per the PCLOB [Privacy and Civil Liberties Oversight Board] Report and a purported NSA slide, “the NSA has confirmed that it conducts Upstream surveillance at more than one point along the [I]nternet backbone.” Together, these allegations are sufficient to make plausible the conclusion that the NSA is intercepting, copying, and reviewing at least some of Wikimedia's communications. To put it simply, Wikimedia has plausibly alleged that its communications travel all of the roads that a communication can take, and that the NSA seizes all of the communications along at least one of those roads.
Id. at 210-11 (citations omitted).
The Fourth Circuit therefore vacated an order dismissing Wikimedia's complaint issued by Senior District Judge Thomas Selby Ellis III, the self-described "impatient" jurist who achieved later notoriety and collected ethics complaints (that were rejected last year) for his management of the trial of former Trump campaign manager Paul Manafort.
On remand, the government moved for summary judgment. Wikimedia Foundation v. National Security Agency/Central Security Service, 427 F.Supp.3d 582 (D. Md. 2019). Once more, the government argued that Wikimedia lacked standing to complain that the Upstream surveillance violated its Fourth Amendment rights. It suggested that the "plausible" inference that the NSA must be "intercepting, copying, and reviewing at least some of Wikimedia's communications” recognized by the Fourth Circuit was not so plausible after all. To support this conclusion, it submitted a declaration of Henning Schulzrinne, a Professor of Computer Science and Electrical Engineering at Columbia University. Dr. Schulzrinne described how companies carrying Internet traffic might filter transmissions before copying them by “mirroring” with “routers” or “switches” that could perform “blacklisting” or “whitelisting” if the NSA chose to give the companies information on its targets with which to create “access control lists.”
But Dr. Schulzrinne supplied no information and formed no opinion on whether it was at all likely that the NSA used the mirroring methods that he envisioned, and Wikimedia produced a series of expert reports from Scott Bradner, who had served as Harvard University’s Technology Security Officer and taught at that university. Bradner contended that the NSA could hardly be expected to give away the information on its targets and concluded that it is all but certain that the agency intercepted and opened at least one of Wikimedia's trillions of Internet communications.
The district court refused to conduct an evidentiary hearing on the factual issue. Instead, it disregarded the expert's opinion as inadmissible scientific evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), because no one without access to classified information could "know what the NSA prioritizes in the Upstream surveillance program ... and therefore Mr. Bradner has no knowledge or information about it." Wikimedia, 427 F. Supp. 3d at 604–05 (footnotes omitted).
This reasoning resembles that from Judge Ellis's first opinion in this long-running case. In Wikimedia Found. v. NSA, 143 F. Supp. 3d 344, 356 (D. Md. 2015), the judge characterized Wikimedia’s allegations as mere “suppositions and speculation, with no basis in fact, about how the NSA” operates and maintained that it was impossible for Wikimedia to prove its allegations “because the scope and scale of Upstream surveillance remain classified . . . .” Id. Rather than allow full consideration of the strength of the evidence that makes Wikimedia’s claim plausible, the district court restated its position that “Mr. Bradner has no [direct] knowledge or information” because that information is classified. Wikimedia, 427 F. Supp. 3d at 604–605.
In a pending appeal to the Fourth Circuit, Edward Imwinkelried, Michael Risinger, Rebecca Wexler, and I prepared a brief as amici curiae in support of Wikimedia. The brief expresses surprise at “the district court’s highly abbreviated analysis of Rule 702 and Daubert, as well as the court’s consequent decision to rule inadmissible opinions of the type that Wikimedia’s expert offered in this case.” It describes the applicable standard for excluding expert testimony. It then argues that the expert’s method of reasoning was sound and that its factual bases regarding the nature of Internet communications and surveillance technology, together with public information on the goals and needs of the NSA program, were sufficient to justify the receipt of the proposed testimony.
UPDATE (9/27/21): On 9/15/21, the Fourth Circuit affirmed the summary judgment order -- but not on the basis of Judge Ellis's theories about expert testimony. In a 2-1 decision, the panel reasoned that the suit had to be dismissed because the government had properly invoked the state secrets privilege and that because the government would have to disclose those secrets to defend itself, “further litigation would present an unjustifiable risk of disclosure.”
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