14 F.4th 276
4th Cir.2021Background
- The NSA operates an "Upstream" Section 702 program that intercepts Internet "transactions" on the backbone (often at limited "chokepoint" or international links) by compelling telecom providers to assist; until 2017 it also collected communications “about” selectors.
- Wikimedia sued seeking declaratory and injunctive relief and purge orders, alleging (the “Wikimedia Allegation”) that: (1) its traffic traverses every international link; (2) the NSA monitors at least one such link; and (3) the NSA copies/reviews all communications on a monitored link.
- On the first appeal the Fourth Circuit held Wikimedia’s pleadings plausibly alleged standing and vacated dismissal; on remand the district court ordered discovery, the government invoked the state secrets privilege, and DNI Coats submitted a classified/unclassified declaration asserting privilege over operational details and confirming monitoring of at least one international circuit.
- The district court granted summary judgment to the government, finding Wikimedia failed to raise a genuine dispute on the necessity-of-copying prong and that the state secrets privilege required dismissal; Wikimedia appealed.
- The Fourth Circuit (majority) held Wikimedia established genuine fact disputes on both the monitored-link and wholesale-copying prongs based largely on a 2011 declassified FISC opinion and related public materials, but concluded §1806(f) of FISA does not displace the state secrets privilege and that state secrets nonetheless require dismissal; other claimed injuries failed under Clapper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing — is there evidence NSA monitors at least one international/chokepoint link? | FISC concession and public disclosures make it plausible the NSA monitors an international/chokepoint link carrying Wikimedia traffic. | The FISC language doesn’t prove NSA actually monitors a chokepoint; the relevant definitions and practices are classified. | Court: Genuine dispute exists — reasonable inference from the FISC concession supports that NSA monitors at least one international link. |
| Standing — does the NSA copy/review all communications on a monitored link? | FISC language (“will acquire…a domestic ‘about’ communication”), PCLOB and other disclosures, and technical expert evidence support that NSA elects to copy whole transactions on monitored links. | Technically feasible alternatives (traffic mirroring with pre-copy filtering) could avoid wholesale copying; FISC language is ambiguous or outdated. | Court: Genuine dispute exists — the FISC concession plus other public material permits a jury inference that NSA elects wholesale copying; summary judgment for government on this prong was erroneous. |
| Does FISA §1806(f) displace the state secrets privilege and require in camera §1806(f) review here? | Wikimedia: §1806(f)’s third clause covers any motion to obtain materials relating to electronic surveillance, so it displaces state secrets and mandates in camera/ex parte review. | Government: §1806(f) governs admissibility when the government seeks to use surveillance evidence; it does not supplant the state secrets privilege for broad discovery claims. | Court: §1806(f) does not displace the state secrets privilege here — it is aimed at motions tied to the government’s use of surveillance evidence (suppression/admissibility), not an open discovery mandate. |
| Effect of state secrets privilege — must the case be dismissed? | Wikimedia: It already established standing via public evidence; the court should perform limited in camera review of privileged materials to test the government’s asserted defenses before dismissing. | Government: Seeking privileged material would risk national security; state secrets bar prevents litigating the central allegations about Upstream without disclosure. | Court: State secrets privilege applies to categories identified in Coats’ declaration; further litigation would unjustifiably risk disclosure and dismissal is required. |
| Alternative injuries (readership decline, protective costs, third-party standing) | These injuries independently confer standing without needing privileged evidence. | Such theories fail under Clapper (speculation, self-inflicted costs) and third-party-standing requirements. | Court: Alternative theories fail — readership/drop claims are speculative and protective costs/third-party standing collapse because they depend on the state-secrets-barred Wikimedia Allegation. |
Key Cases Cited
- United States v. Reynolds, 345 U.S. 1 (1953) (establishes modern state secrets privilege framework and procedures)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (standing requires non-speculative, imminent injury; chilling/self-protective costs cannot alone create standing)
- Fazaga v. FBI, 965 F.3d 1015 (9th Cir. 2020) (FISA §1806(f) held by Ninth Circuit to displace state secrets in some surveillance challenges — discussed and expressly declined as binding)
- El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007) (describes three-step Reynolds analysis and limits on post-invocation litigation)
- Lujan v. Nat’l Wildlife Fed., 497 U.S. 871 (1990) (summary-judgment stage standing requires specific facts creating genuine dispute)
- Abilt v. CIA, 848 F.3d 305 (4th Cir. 2017) (discusses dismissal where further litigation would present unjustifiable risk of disclosure under state secrets)