How many NSA does it take to anger Wikimedia?

Apparently just one. That’s it.

The buttons have been pushed and the lawsuit is filed. According to Wikimedia’s recent Blog posting, it referenced its intent to file a lawsuit against the National Security Agency (NSA) and the Department of Justice (DOJ), captioned Wikimedia Foundation, et al. v. National Security Agency/Central Security Service, et al., U.S. District Court – District of Maryland, Case No.: 15-cv-00662 (RDB) (March 10, 2015).

The grounds for which Wikimedia is basing its lawsuit involve the mass surveillance program that the NSA has been implementing. One of the most troublesome facets of this program, according to Wikimedia’s pleading, is the NSA’s search and seizure of internet communications, which is called “Upstream” surveillance. Wikimedia argues that these actions violate its users most basic of rights, citing the U.S. Constitution’s First Amendment protection of freedom of speech, and Fourth Amendment protection against unreasonable search and seizure because defendants’ conduct involved suspicionless seizure and searching of Internet traffic by NSA on U.S. soil.

The founder of Wikipedia, Jimmy Wales, continues to emphasize that user privacy is of utmost importance. When such privacy is put in question, and people fear that their information will be leaked, the Wiki experience is seriously undermined. This issue, with the NSA specifically, was made much more serious and real with the Edward Snowden 2013 public disclosures, which revealed information about Wikimedia’s programs. According to its blog postings, Wikimedia has been looking for a way to file a lawsuit ever since this incident. Zeroing in on the “upstream” surveillance aspect allows the suit to serve as a vehicle to address Wikimedia’s views on how deeply rooted and harmful the issue is because it is tapping into the backbone of the internet, including the vast network of high-capacity cables, switches, and routers “that today carry vast numbers of Americans’ communications with each other and with the rest of the world.”

In other words, when the NSA monitors everything, the very integrity of the Internet is impugned and Wikimedia is taking a stand. This is not the first time Wikimedia has protested when it felt certain rights were being encroached on improperly. For example, in 2012 Wiki implemented a Wikipedia blackout to protest the anti-piracy laws that the U.S. Congress considered enacting at the time. Much like in the current issue, Wikimedia took action to proclaim that it did not support the influence that the government was trying to exert over what it believed should continue to be a free and open internet.

The Wiki lawsuit raises a number of important questions, including whether any surveillance is appropriate, and if so, who’s the appropriate body to surveil and how much surveillance is too much?

One can argue that within cyberspace there is a certain amount of necessary precautions that must be taken to help ensure public safety and the Internet’s integrity. Under that premise, it would be inappropriate to eliminate all oversight especially if it were necessary to maintain the very integrity that the Internet is designed to ensure. But again, the issue comes down to “who” – who should be allowed to surveil, including who’s in the best position to “protect the public and the Internet”?

• Is it the government – if so, who’s government?
• A website’s creator – if so, does it matter that the site is driven by profits over safety? Or would a non-profit website serve a more credible role?

As with most complex issues – it depends. So then, does Wikimedia have a legitimate basis to file suit? That remains to be seen as the lawsuit proceeds. But challenges to the levels on which human rights are being encroached are always fair game in a free society. Individuals like Edward Snowden serve to test the parameters of that premise. The level of NSA surveillance has become the lightening rod to test the scope of what’s appropriate – and not. This is what Wikimedia, in part, appears to be arguing, that the NSA has reached too far.

###

Do you have any feedback, thoughts, reactions or comments concerning this topic? Feel free to leave a comment below and follow the twitter accounts @CyberPinguelo, @eWHW_Blog, @S_H_Law. If you have any questions about this post or would like assistance with your data security/privacy and related efforts, please contact Fernando M. Pinguelo or the Scarinci Hollenbeck attorney with whom you work.

Fernando acknowledges the notable contribution to this article from Ms. Jenna Methven, Chief Blog Correspondent and Blogger for eWhiteHouse Watch – Where Technology, Politics, and Privacy Collide (www.eWHWblog.com) and a Monmouth University student.