On Friday, a federal judge dismissed an anti-surveillance lawsuit brought by Wikimedia, ruling in favor of the National Security Agency.
In his 30 page ruling, US District Judge T.S. Ellis III found that Wikimedia and the other plaintiffs had no standing, and could not prove that they had been surveilled, largely echoing the previous 2013 Supreme Court decision in the case of Clapper v. Amnesty International .
Judge Ellis found that there is no way to definitively know if Wikimedia, which publishes Wikipedia, one of the largest sites on the Internet, is being watched.
As he wrote in his memorandum opinion:
Plaintiffs' argument is unpersuasive, as the statistical analysis on which the argument rests is incomplete and riddled with assumptions. For one thing, plaintiffs insist that Wikipedia's over one trillion annual Internet communications is significant in volume. But plaintiffs provide no context for assessing the significance of this figure. One trillion is plainly a large number, but size is always relative. For example, one trillion dollars are of enormous value, whereas one trillion grains of sand are but a small patch of beach.
...
As already discussed, although plaintiffs have alleged facts that plausibly establish that the NSA uses Upstream surveillance at some number of chokepoints, they have not alleged facts that plausibly establish that the NSA is using Upstream surveillance to copy all or substantially all communications passing through those chokepoints. In this regard, plaintiffs can only speculate, which Clapper forecloses as a basis for standing.
Since the June 2013 Snowden revelations, by and large, it has been difficult for legal challenges filed against government surveillance to advance in the courts.
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The 4th US Circuit Court of Appeals ruled to give Wikimedia a chance to legally challenge the NSA's mass surveillance as being unconstitutional. The government has previously argued that the NSA's Upstream warrantless spying is authorized under Section 702 of the Foreign Intelligence Surveillance Act. [...]
The ruling yesterday reversed a lower court's ruling which found Wikimedia, which publishes the internet behemoth Wikipedia, couldn't prove the NSA's "Upstream" surveillance program was secretly monitoring its communications, vacuuming the communications right off the internet backbones – even with leaked Snowden documents showing Wikipedia as an NSA target.
[...] due to the sheer size of Wikimedia, the judges found that the NSA probably had seized at least some of their communications.
—Computerworld (hyperlinks in original)
"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," U.S. Circuit Judge Albert Diaz wrote. "Thus, at least at this stage of the litigation, Wikimedia has standing to sue for a violation of the Fourth Amendment. And, because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the First Amendment."
Further reading:
Wikipedia article on Upstream
Wikipedia article on Albert Diaz
(Score: 1, Insightful) by Anonymous Coward on Sunday October 25 2015, @02:35PM
"This case stops here. You know nothing. This memo doesn't exist."
(Score: 3, Funny) by Runaway1956 on Sunday October 25 2015, @02:42PM
Congress needs to put a stop to this nonsense. Congress has authority to over ride all the secret courts, as well as the public court rulings. Just put a stop to it. Unfortunately - that ain't happening.
(Score: 4, Insightful) by isostatic on Sunday October 25 2015, @03:31PM
Congress are a bit like security theatre, completely ineffectual and aimed in the wrong direction
(Score: 3, Informative) by Hyperturtle on Sunday October 25 2015, @03:55PM
Yeah... congress is not going to put a stop to anything.
They can't even permit themselves to lead, let alone put an end to a rule.
(Score: 3, Insightful) by maxwell demon on Sunday October 25 2015, @09:30PM
How many dirty secrets does the NSA know about members of congress?
The Tao of math: The numbers you can count are not the real numbers.
(Score: 0) by Anonymous Coward on Monday October 26 2015, @07:15AM
How many dirty politicians would support politicians they have no dirt/leverage on? :p
(Score: 3, Insightful) by Anonymous Coward on Sunday October 25 2015, @05:06PM
This is another example of the way any system for organizing power is inherently authoritarian. The judge's ruling is 100% technically correct by the letter of the law. But, whether he intended it or not, the result is deeply unethical. Beware people who forget that rules are an imperfect tool to achieve an end, not an end themselves. A judge should exercise judgment, he chose not to.
(Score: 5, Insightful) by Anonymous Coward on Sunday October 25 2015, @05:42PM
Everyone should be able to challenge unconstitutional laws, because they hurt us all. This notion of "standing" has to go in such cases. What this does is make it nearly impossible for people to challenge the government when it abuses its power if it acted in sufficient secrecy, because it is very difficult to prove that you, specifically, had your rights violated. This is truly a disgusting and authoritarian decision on the part of the courts.
(Score: 0, Offtopic) by Francis on Sunday October 25 2015, @08:21PM
That's a deeply problematic way to view things. For example, if I wanted to see what's going on behind the scenes at Microsoft and Apple, I could sue MS on Apple's behalf and get access to all sorts of materials that I shouldn't have access to. I could also use it as a method of extorting money out of smaller companies not interested in paying legal fees for a case that a 3rd party brought to court.
The problem here is that we expect to evaluate standing prior to discovery. So, you can't find the evidence necessary to establish standing if they hide it. It's one of those technically correct, but practically ridiculous ideas that's still firmly embedded in the judiciary. It should just require a good faith belief that you've got standing to take it through discovery and if it turns out you didn't have standing, then you should pay their costs.
But, in this case it's less about the technicality and more about the fact that judges are uncomfortable finding against the government in case that leads to a terrorist attack or similar.
(Score: 4, Insightful) by Anonymous Coward on Sunday October 25 2015, @09:20PM
That's a deeply problematic way to view things.
Bullshit. Read my comment. "Everyone should be able to challenge unconstitutional laws, because they hurt us all. This notion of "standing" has to go in such cases." I speak of constitutional challenges, not petty disputes between companies; you need to separate the two things in your mind. Unconstitutional laws and practices threaten the very fabric of our society, and inherently harm us all. You should not need to be personally harmed (harmed in the way that they think matters) or prove that you were personally harmed by the government which was acting in secrecy by some unconstitutional law or policy before you can challenge it. That leads to an unjust situation where the government's abuses cannot be realistically challenged.
If that leads to countless lawsuits over the government's actions, they can remedy this by not violating the constitution in the first place.
(Score: 2) by Bot on Sunday October 25 2015, @08:21PM
To me it seems judge plugged his ears and went LALALAICANTHEARYOU.
One trillion annual internet communications.
That is 100 packets for everybody in the world and their dogs, annually, only for initiate such "communications", a kid can work this out, a judge cannot, in good faith? BS meter is honking.
PS some systems like blockchains, DHT, are not authoritarians per se, so there is some hope.
Account abandoned.
(Score: 2) by lentilla on Monday October 26 2015, @03:58AM
For example, one trillion dollars are of enormous value, whereas one trillion grains of sand are but a small patch of beach.
Nice analogy, Your Honour. Allow me: if "the Internet" were the world, Wikimedia is Europe.
(Score: 4, Touché) by TrumpetPower! on Sunday October 25 2015, @05:11PM
So, as it turns out, the best government that money [wikipedia.org] can buy...is one of the spooks, by the spooks, and for the spooks.
Whodathunkit?
b&
All but God can prove this sentence true.
(Score: 0) by Anonymous Coward on Sunday October 25 2015, @08:58PM
In the article (and reality) the judge is T.S. Ellis III. Why the fuck is it Richard D. Bennett, complete with a different link, here? Janrinok plagiarized the entire article, but it's not even correct.
(Score: 3, Touché) by n1 on Sunday October 25 2015, @09:33PM
I have updated the summary. I assume at time of original editing, the arstechnica story had the wrong judge name, original submission was just a link. I have corrected it to what TFA says now. The article does not have consistent spelling even now. Ellis and Elliss. Ellis is the signature on the memorandum.
Who knows who actually wrote most of it anyway :)
(Score: 0) by Anonymous Coward on Monday October 26 2015, @03:45AM
That is an extremely measured response to my overreaction and aggressive comment. Incredible.
I apologize for my terrible tone and language and will remember how unnecessary it is. Thanks!
(Score: 2, Insightful) by Anonymous Coward on Monday October 26 2015, @02:16AM
What is 'over one trillion annual Internet communications', anyway? Does he mean connections? Visitors? Hits? No matter what he's 'assuming' there, that's a substantially busy website. Must be the third most visited after Facebook & Google, would be my guess. Huge. This judge is either an idiot or an asshole, my 'assumption' is the latter.
Everything about this is just plain wrong in the extreme. Judge needs to be disbarred, or retired with his golden parachute at the very least.
(Score: 0) by Anonymous Coward on Monday October 26 2015, @02:30AM
Judge needs to be disbarred, or retired with his golden parachute at the very least.
Something tells me his golden parachute just got a whole lot bigger.
(Score: 1, Offtopic) by dmc on Monday October 26 2015, @05:59AM
Wikipedia, while being even more awesome a thing than the Encyclopedia Britannica was when I was a child, is also in this day and age a technological embarassment. The way the information _should_ be flowing, is in a completely decentralized system of caches. Each device that might serve as a free and open encyclopedia viewing device and has more than eight gigabytes of storage, ought to dedicate at least 128MB to a cache. That cache should prepopulate/initialize with say 64MB of the top 1000 pages by some choice of arbiter (defaults to wikimedia corp or whatever) and the rest gets filled in with some random splattering. Basically a kind of usenet backend, but with a significant percentage of users operating relay caches (lets start with 1% of mobile phones and home PCs). Throw a tor layer in if it makes sense. But any way you slice it, that removes the inexpensive mass surveillance option of just infiltrating or subverting a single organization or its chokepoint/s. And yes, you still need a reputation system, that can default to wikimedia as authoritative. But that would evolve appropriately and increasing options is obviously the right move.
(Score: 0) by Anonymous Coward on Monday October 26 2015, @07:05AM
You can just download a local copy of Wikipedia. Without images/videos and compressed it's quite small (12GB for the whole thing, much smaller for only the top few thousand pages). See Wikipedia:Database download [wikipedia.org] for more information. The hard part is organizing the edits.
(Score: 0) by Anonymous Coward on Monday October 26 2015, @08:58AM
++for trying.
I think it's harder to correctly configure 1000 systems, each holding a tiny fragment of a large cache; than 2 or 3 webservers holding a full copy of the data.
Freenet ( https://freenetproject.org/ [freenetproject.org] ) fufills some of your goals. Distributed cache-only storage. Data might be lost, but sufficiently popular stuff probably won't be. Updating is still a bit problematic. I looked at it about ten years ago, but the process for new nodes joining, at the time, required a lot of repetative calculations to build node reputation. I had a pathetically slow computer at the time, and lost interest.
(Score: 1) by Fishscene on Monday October 26 2015, @01:57PM
You should check out IPFS. Fascinating decentralized protocol that works over current infrastructure.
I know I am not God, because every time I pray to Him, it's because I'm not perfect and thankful for what He's done.