335 F. Supp. 3d 772
D. Maryland2018Background
- Wikimedia Foundation sued NSA, ODNI, and DOJ challenging the legality of the §702 Upstream surveillance program, alleging APA, Fourth, First Amendment, and Article III violations and seeking declaratory and injunctive relief.
- Fourth Circuit held Wikimedia had plausibly alleged it was surveilled and remanded; district court ordered limited jurisdictional discovery focused on standing and scope of surveillance.
- Wikimedia served broad discovery seeking operational details of Upstream; government produced limited unclassified materials and invoked the state secrets privilege (formal declaration by DNI Daniel Coats and classified declaration by an NSA deputy) to withhold responsive information.
- Wikimedia moved to compel, arguing FISA §1806(f) requires ex parte, in camera review of surveillance materials and displaces the state secrets privilege; government argued §1806(f) does not apply pre-confirmation of surveillance and that the state secrets claim bars disclosure.
- The court held §1806(f) procedures are triggered only when an "aggrieved person"—i.e., someone shown to have been targeted or otherwise subjected to surveillance—moves to discover or suppress; mere plausible allegations are insufficient to invoke §1806(f).
- The court found the government satisfied Reynolds procedural requirements and that the classified and public declarations demonstrated a reasonable danger to national security from disclosure, so the state secrets privilege barred the requested discovery; the motion to compel was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FISA §1806(f) compels ex parte/in camera court review and disclosure at the discovery stage | §1806(f) applies to any motion seeking materials relating to electronic surveillance and displaces state secrets; Wikimedia urged invocation now | §1806(f) applies only when an "aggrieved person" (one shown to have been surveilled) moves to obtain/suppress; not triggered by mere plausible allegations | §1806(f) not triggered here; movant must adduce evidence showing it was subject/target of surveillance before §1806(f) review applies |
| Whether §1806(f) displaces the common-law state secrets privilege when it does apply | FISA's procedures were intended to override state secrets protections in surveillance disputes | No clear congressional statement displacing state secrets; displacement question need not be resolved here because §1806(f) inapplicable | Not reached (because §1806(f) not triggered) |
| Whether the government properly invoked the state secrets privilege over the requested discovery | Disclosure of even acknowledgment of surveillance would not harm security given public disclosures and Wikimedia’s broad public communications | DNI and NSA declarations identify categories of sensitive operational information; disclosure would cause serious/exceptionally grave harm to national security | Government met Reynolds requirements; state secrets privilege applies and protects the materials; privilege accepted without further disclosure |
| Whether public disclosures of Upstream reduce privilege or allow partial production | Wikimedia argued public reports/FISC redactions mean the specific discovery sought is already public and non-sensitive | Government showed public materials are distinguishable from withheld operational details; classified declarations document specific harms | Public disclosures did not eliminate privilege; withheld categories remain protected |
Key Cases Cited
- United States v. Reynolds, 345 U.S. 1 (Sup. Ct.) (establishes state secrets doctrine and procedural prerequisites)
- Abilt v. CIA, 848 F.3d 305 (4th Cir. 2017) (articulates three-step state-secrets analysis and courts’ deference/critical review balance)
- El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007) (discusses review of privilege and reasonable-danger standard)
- ACLU Found. of S. Cal. v. Barr, 952 F.2d 457 (D.C. Cir. 1991) (requires plaintiffs to adduce evidence at summary judgment stage before invoking §1806(f) procedures)
- Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007) (upholds privilege for fact of surveillance and operational details)
- Hepting v. AT&T Corp., 439 F. Supp. 2d 974 (N.D. Cal. 2006) (recognizes plaintiffs may rely on public disclosures to support surveillance allegations)
- Begay v. United States, 553 U.S. 137 (Sup. Ct.) (principle that general statutory language is read in light of preceding specific enumerations)
- Lorillard v. Pons, 434 U.S. 575 (Sup. Ct.) (courts should not import standards from different statutory text where Congress used different language)