Wikimedia Foundation v. National Security Agency
2017 U.S. App. LEXIS 8957
| 4th Cir. | 2017Background
- Plaintiffs (Wikimedia Foundation and eight organizations) sued the NSA seeking declaratory and injunctive relief and purging of records, alleging NSA’s Upstream surveillance intercepts internet communications crossing U.S. backbone links.
- Two principal theories: (1) the "Wikimedia Allegation" — NSA has intercepted at least some Wikimedia communications because of its volume and the technical way Upstream operates on at least one backbone link; (2) the "Dragnet Allegation" — NSA intercepts, copies, and reviews substantially all text-based communications entering and leaving the U.S.
- Plaintiffs relied on public disclosures (PCLOB report, news articles), purported NSA slides, internet-architecture theory (packets travel intermingled and unpredictably across backbone links), and Wikimedia’s traffic statistics.
- Government moved to dismiss for lack of Article III standing; district court dismissed all plaintiffs relying on Clapper v. Amnesty International USA and treated the motion as a facial challenge (did not consider government declarations).
- Fourth Circuit: treated standing at the motion-to-dismiss stage (plausibility standard), held Wikimedia has standing and the complaint survives facial challenge as to Wikimedia; affirmed dismissal as to the other plaintiffs for insufficient well-pleaded facts to show a dragnet.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs have Article III standing to challenge Upstream surveillance | Plaintiffs: Upstream actually intercepts their communications (Wikimedia: at least some; Others: a dragnet of substantially all) causing First and Fourth Amendment injuries and self-censorship | Government: allegations are speculative; Clapper controls; factual showing insufficient to show certainly-impending or actual interception | Wikimedia: standing granted — plausible, concrete, particularized actual injury; Non‑Wikimedia plaintiffs: no standing — dragnet allegation not plausibly pleaded |
| Proper standard and scope at motion-to-dismiss (facial vs. factual challenge) | Plaintiffs: facial review; rely on complaint and incorporated public materials | Government: urged consideration of declarations and factual rebuttal | Court: treated as facial challenge; did not consider gov’t declarations on appeal; factual challenge may be raised later |
| Relevance of Clapper v. Amnesty Int’l (speculative-injury doctrine) | Plaintiffs: Clapper distinguishable because Wikimedia alleges an actual, ongoing seizure rather than speculative future injury | Government: Clapper requires dismissal for speculative chain of events | Court: Clapper’s ‘‘certainly impending’’ analysis is inapposite to Wikimedia’s allegation of ongoing interception; but Clapper relevant to evaluate speculative dragnet claim |
| Redressability and traceability of alleged injuries | Plaintiffs: injunction/ purge would redress harms and injuries are fairly traceable to Upstream | Government: causal link speculative without operational details | Court: for Wikimedia, traceability and redressability satisfied; for others, insufficiently pleaded causal link to a nationwide dragnet |
Key Cases Cited
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (threatened‑injury must be certainly impending; caution against speculative chains of possibilities)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (courts accept well-pleaded facts as true but not legal conclusions)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing elements and burdens at successive litigation stages)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (injury in fact must be concrete and particularized)
- Schuchardt v. President of the United States, 839 F.3d 336 (3d Cir. 2016) (facial challenge to Section 702; PRISM dragnet plausibly pleaded at motion-to-dismiss)
- American Civil Liberties Union v. Clapper, 785 F.3d 787 (2d Cir. 2015) (motion-to-dismiss posture finding cognizable Fourth Amendment injury from bulk telephony metadata collection)