Case 1:15-cv-00662-RDB Document 1 Filed 03/10/15 Page 1 of 42

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

WIKIMEDIA FOUNDATION 149 New Montgomery Street, 6th Floor San Francisco, CA 94105;
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS 1660 L Street, NW, 12th Floor Washington, DC 20036;
HUMAN RIGHTS WATCH 350 Fifth Avenue, 34th Floor New York, NY 10118;
AMNESTY INTERNATIONAL USA 5 Pennsylvania Plaza, 16th Floor New York, NY 10001;
PEN AMERICAN CENTER 588 Broadway, Suite 303 New York, NY 10012;
GLOBAL FUND FOR WOMEN 222 Sutter Street, Suite 500 San Francisco, CA 94108;
THE NATION MAGAZINE 33 Irving Place, 8th Floor New York, NY 10003;
THE RUTHERFORD INSTITUTE P.O. Box 7482 Charlottesville, VA 22906;
WASHINGTON OFFICE ON LATIN AMERICA 1666 Connecticut Avenue, NW, Suite 400 Washington, DC 20009,
Plaintiffs,
v.
NATIONAL SECURITY AGENCY / CENTRAL SECURITY SERVICE

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Civil Action No. ________________
Hon. ________________

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9800 Savage Road Fort Meade, Anne Arundel County, MD 20755;
ADM. MICHAEL S. ROGERS, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service, National Security Agency / Central Security Service 9800 Savage Road Fort Meade, Anne Arundel County, MD 20755;
OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE Washington, DC 20511;
JAMES R. CLAPPER, in his official capacity as Director of National Intelligence, Office of the Director of National Intelligence Washington, DC 20511;
DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Washington, DC 20530;
ERIC H. HOLDER, in his official capacity as Attorney General of the United States, Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530,
Defendants.

Deborah A. Jeon (Bar No. 06905) jeon@aclu-md.org David R. Rocah (Bar No. 27315) rocah@aclu-md.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND 3600 Clipper Mill Rd., #350 Baltimore, MD 21211 Phone: (410) 889-8555 Fax: (410) 366-7838

Patrick Toomey (admission pro hac vice pending) ptoomey@aclu.org Jameel Jaffer (admission pro hac vice pending) jjaffer@aclu.org Alex Abdo (admission pro hac vice pending) aabdo@aclu.org Ashley Gorski (admission pro hac vice pending) agorski@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION

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March 10, 2015

125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654
Charles S. Sims (admission pro hac vice pending) csims@proskauer.com David A. Munkittrick (admission pro hac vice pending) dmunkittrick@proskauer.com John M. Browning (admission pro hac vice pending) jbrowning@proskauer.com PROSKAUER ROSE LLP Eleven Times Square New York, NY 10036 Phone: (212) 969-3000 Fax: (212) 969-2900

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. This lawsuit challenges the suspicionless seizure and searching of internet traffic by the National Security Agency (“NSA”) on U.S. soil. The NSA conducts this surveillance, called “Upstream” surveillance, by tapping directly into the internet backbone inside the United States—the 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 the course of this surveillance, the NSA is seizing Americans’ communications en masse while they are in transit, and it is searching the contents of substantially all international text-based communications—and many domestic communications as well—for tens of thousands of search terms. The surveillance exceeds the scope of the authority that Congress provided in the FISA Amendments Act of 2008 (“FAA”) and violates the First and Fourth Amendments. Because it is predicated on programmatic surveillance orders issued by the Foreign Intelligence Surveillance Court (“FISC”) in the absence of any case or controversy, the surveillance also violates Article III of the Constitution. 2. Plaintiffs are educational, legal, human rights, and media organizations that collectively engage in hundreds of billions of sensitive international communications over the internet each year. Plaintiffs communicate with, among many others, journalists, clients, experts, attorneys, civil society organizations, foreign government officials, and victims of human rights abuses. Plaintiff Wikimedia Foundation communicates with the hundreds of millions of individuals who visit Wikipedia webpages to read or contribute to the vast repository of human knowledge that Wikimedia maintains online. The ability to exchange information in confidence, free from warrantless government monitoring, is essential to each of
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the Plaintiffs’ work. The challenged surveillance violates Plaintiffs’ privacy and undermines their ability to carry out activities crucial to their missions.
3. Plaintiffs respectfully request that the Court declare the government’s Upstream surveillance to be unlawful; enjoin the government from continuing to conduct Upstream surveillance of Plaintiffs’ communications; and require the government to purge from its databases all of Plaintiffs’ communications that Upstream surveillance has already allowed the government to obtain.
JURISDICTION AND VENUE 4. This case arises under the Constitution and the laws of the United States and presents a federal question within this Court’s jurisdiction under Article III of the Constitution and 28 U.S.C. § 1331. The Court also has jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 702. The Court has authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202. The Court has authority to award costs and attorneys’ fees under 28 U.S.C. § 2412. 5. Venue is proper in this district under 28 U.S.C. § 1391(b)(2), (e)(1).
PLAINTIFFS 6. Wikimedia Foundation (“Wikimedia”) is a non-profit organization based in San Francisco, California, that operates twelve free-knowledge projects on the internet. Wikimedia’s mission is to empower people around the world to collect and develop free educational content. Wikimedia does this by developing and maintaining “wiki”-based projects, and by providing the full contents of those projects to individuals around the world free of charge. Wikimedia sues on its own behalf and on behalf of its staff and users.
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7. The National Association of Criminal Defense Lawyers (“NACDL”) is a membership organization based in Washington, D.C. NACDL advocates for rational and humane criminal justice policies at all levels of federal, state, and local government, and seeks to foster the integrity, independence, and expertise of the criminal defense profession. NACDL sues on its own behalf and on behalf of its members.
8. Human Rights Watch (“HRW”) is a non-profit, non-governmental human rights organization headquartered in New York City with offices around the world. It reports on abuses in all regions of the globe and advocates for the protection of human rights. HRW researchers conduct fact-finding investigations into human rights abuses in over 90 countries and publish their findings in hundreds of reports, multi-media products, and other documents every year, as well as through social media accounts. HRW sues on its own behalf and on behalf of its staff.
9. Amnesty International USA (“AIUSA”), headquartered in New York City, is the largest country section of Amnesty International, with hundreds of thousands of members and other supporters who work for human rights, including through national online networks, high schools, colleges, and community groups. AIUSA sues on its own behalf and on behalf of its staff and members.
10. PEN American Center (“PEN”) is a human rights and literary association based in New York City. Committed to the advancement of literature and the unimpeded flow of ideas and information, PEN fights for freedom of expression; advocates on behalf of writers harassed, imprisoned, and sometimes killed for their views; and fosters international exchanges, dialogues, discussions, and debates. PEN sues on its own behalf and on behalf of its staff and members.
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11. Global Fund for Women (“GFW”) is a non-profit grantmaking foundation based in San Francisco, California, and New York City. GFW advances women’s human rights worldwide by providing funds to women-led organizations that promote the economic security, health, safety, education, and leadership of women and girls. GFW sues on its own behalf and on behalf of its staff.
12. The Nation Magazine (“The Nation”), which is published by The Nation Company, LLC, and based in New York City, is America’s oldest weekly magazine of opinion, news, and culture. It serves as a critical, independent voice in American journalism, exposing abuses of power through its investigative reporting, analysis, and commentary. In recent years, The Nation’s journalists have reported on a wide range of issues relating to international affairs, including the wars in Iraq and Afghanistan, the Israel–Palestine conflict, protest activities in China and elsewhere in East Asia, and conflicts in Africa and Latin America. The Nation sues on behalf of itself, its staff, and certain of its contributing journalists.
13. The Rutherford Institute (“Rutherford”) is a civil liberties organization based in Charlottesville, Virginia, committed to protecting the constitutional freedoms of Americans and the human rights of all people. Rutherford provides free legal services in defense of civil liberties and educates the public about constitutional and human rights issues. It also advocates on behalf of individuals abroad whose rights are threatened by foreign governments. Rutherford sues on its own behalf and on behalf of its staff.
14. The Washington Office on Latin America (“WOLA”) is a non-profit, nongovernmental organization based in Washington, D.C., that conducts research, advocacy, and education designed to promote human rights, democracy, and social justice in Latin America. WOLA sues on its own behalf and on behalf of its staff.
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DEFENDANTS 15. Defendant National Security Agency / Central Security Service (“NSA”), headquartered in Fort Meade, Maryland, is the agency of the United States government responsible for conducting the surveillance challenged in this case. 16. Defendant Adm. Michael S. Rogers is the Director of the NSA and the Chief of the Central Security Service. Defendant Rogers is sued in his official capacity. 17. Defendant Office of the Director of National Intelligence (“ODNI”) is the agency of the United States government responsible for directing and coordinating the activities of the intelligence community, including the NSA. 18. Defendant James R. Clapper is the Director of National Intelligence (“DNI”). Together with the Attorney General, the DNI authorizes warrantless surveillance of U.S. citizens’ and residents’ international communications under the FAA, including Upstream surveillance. Defendant Clapper is sued in his official capacity. 19. Defendant Department of Justice (“DOJ”) is one of the agencies of the United States government responsible for authorizing and overseeing surveillance conducted pursuant to the FAA, including Upstream surveillance. 20. Defendant Eric H. Holder is the Attorney General of the United States. Together with the DNI, the Attorney General authorizes warrantless surveillance of U.S. citizens’ and residents’ international communications under the FAA, including Upstream surveillance. Defendant Holder is sued in his official capacity.
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LEGAL AND FACTUAL BACKGROUND The Foreign Intelligence Surveillance Act
21. In 1978, Congress enacted the Foreign Intelligence Surveillance Act (“FISA”) to govern surveillance conducted for foreign intelligence purposes. The statute created the Foreign Intelligence Surveillance Court (“FISC”) and empowered the court to grant or deny government applications for surveillance orders in certain foreign intelligence investigations.
22. Congress enacted FISA after years of in-depth congressional investigation by the committees chaired by Senator Frank Church and Representative Otis Pike, which revealed that the Executive Branch had engaged in widespread warrantless surveillance of United States citizens—including journalists, activists, and members of Congress—“who engaged in no criminal activity and who posed no genuine threat to the national security.”
23. Congress has amended FISA multiple times since 1978. 24. Prior to 2007, FISA generally required the government to obtain an individualized order from the FISC before conducting electronic surveillance on U.S. soil. To obtain a traditional FISA order, the government was required to make a detailed factual showing with respect to both the target of the surveillance and the specific communications facility—often a telephone line or email account—to be monitored. The government was also required to certify that a “significant purpose” of the surveillance was to obtain foreign intelligence information. 50 U.S.C. § 1804(a)(6)(B). 25. The FISC could issue such an order only if it found, among other things, that there was probable cause to believe that “the target of the electronic surveillance is a foreign power or an agent of a foreign power,” and that “each of the facilities or places at which the
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electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.” Id. § 1805(a)(2)(A)–(B).
26. The framework established by FISA remains in effect today, but it has been modified by the FAA to permit the acquisition of U.S. citizens’ and residents’ international communications without probable cause or individualized suspicion, as described below.
The Warrantless Wiretapping Program 27. On October 4, 2001, President George W. Bush secretly authorized the NSA to conduct a program of warrantless electronic surveillance inside the United States. This program, which was known as the President’s Surveillance Program (“PSP”), was reauthorized repeatedly by President Bush between 2001 and 2007. 28. According to public statements by senior government officials, the PSP involved the warrantless interception of emails and telephone calls that originated or terminated inside the U.S. According to then-Attorney General Alberto Gonzales and then-NSA Director General Michael Hayden, NSA “shift supervisors” initiated surveillance when in their judgment there was a “reasonable basis to conclude that one party to the communication [was] a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.” 29. On January 17, 2007, then-Attorney General Alberto Gonzales publicly announced that a judge of the FISC had “issued orders authorizing the Government to target for collection international communications into or out of the United States where there [was] probable cause to believe that one of the communicants [was] a member or agent of al Qaeda or an associated terrorist organization.” The Attorney General further stated that “[a]s a result of
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these orders, any electronic surveillance that was occurring” as part of the PSP would thereafter “be conducted subject to the approval of the Foreign Intelligence Surveillance Court.”
30. In April 2007, when the government sought reauthorization of the FISC’s previous orders, a different judge of the FISC determined that key elements of the government’s request were incompatible with FISA. Following the FISC’s refusal to renew certain portions of its January 2007 orders, executive-branch officials appealed to Congress to amend the statute.
The Protect America Act 31. Congress enacted the Protect America Act (“PAA”) in August 2007. The PAA expanded the executive’s surveillance authority and provided legislative sanction for surveillance that the President had previously been conducting under the PSP. Because of a “sunset” provision, the amendments to FISA made by the PAA expired on February 17, 2008.
The FISA Amendments Act 32. President Bush signed the FISA Amendments Act (“FAA”) into law on July 10, 2008. The FAA radically revised the FISA regime that had been in place since 1978 by authorizing the acquisition without individualized suspicion of a wide swath of communications, including U.S. persons’ international communications, from companies inside the United States.1 33. In particular, the FAA allows the Attorney General and Director of National Intelligence to “authorize jointly, for a period of up to 1 year . . . the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence
1 Plaintiffs use the term “international” to describe communications that either originate or terminate outside the United States, but not both—i.e., communications that are foreign at one end.
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information.” 50 U.S.C. § 1881a(a). The statute requires the Attorney General, in consultation with the Director of National Intelligence, to adopt “targeting procedures” and “minimization procedures,” id. § 1881a(d)–(e), that govern who may be targeted for surveillance by executivebranch employees and how communications are to be handled once intercepted.
34. The FISC’s role in overseeing the government’s surveillance under the statute consists principally of reviewing these general procedures. The FISC never reviews or approves the government’s individual surveillance targets or the facilities it intends to monitor. Rather, when the government wishes to conduct surveillance under the statute, it must certify to the FISC that the court has approved its targeting and minimization procedures or that it will shortly submit such procedures for the FISC’s approval. See id. § 1881a(g), (i). If the government so certifies, the FISC authorizes the government’s surveillance for up to a year at a time. A single such order may result in the acquisition of the communications of thousands of individuals.
35. The effect of the FAA is to give the government sweeping authority to conduct warrantless surveillance of U.S. persons’ international communications. While the statute prohibits the government from intentionally targeting U.S. persons, it authorizes the government to acquire U.S. persons’ communications with the foreigners whom the NSA chooses to target. Moreover the statute does not meaningfully restrict which foreigners the government may target. The statute does not require the government to make any finding—let alone demonstrate probable cause to the FISC—that its surveillance targets are foreign agents, engaged in criminal activity, or connected even remotely with terrorism. The government may target any person for surveillance if it has a reasonable belief that she is a foreigner outside the United States who is likely to communicate “foreign intelligence information”—a term that is
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defined so broadly as to encompass virtually any information relating to the foreign affairs of the United States. Id. §§ 1881a(a), 1801(e). The government may target corporations and associations under the same standard.
36. Thus, though the FAA is nominally concerned with the surveillance of individuals and groups outside the United States, it has far-reaching implications for U.S. persons’ privacy. The targets of FAA surveillance may include journalists, academic researchers, human rights defenders, aid workers, business persons, and others who are not suspected of any wrongdoing. In the course of FAA surveillance, the government may acquire the communications of U.S. citizens and residents with all these persons.
THE GOVERNMENT’S IMPLEMENTATION OF THE FAA 37. The government has implemented the FAA expansively, with significant consequences for Americans’ privacy. The Director of National Intelligence has reported that, in 2013, the government relied on the FAA to target 89,138 individuals, groups, or organizations for surveillance under a single court order. According to the FISC, the government gathered 250 million internet communications under the FAA in 2011 alone—at a time when the NSA had far fewer targets than it has today. Intelligence officials have declined to determine, or even estimate, how many of the communications intercepted under the FAA are to, from, or about U.S. citizens or residents. However, opinions issued by the FISC, reports by the President’s Review Group on Intelligence and Communications Technologies and the Privacy and Civil Liberties Oversight Board, and media accounts indicate that FAA surveillance results in the wide-ranging and persistent interception of U.S. persons’ communications.
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38. In at least one respect, the government has engaged in surveillance that exceeds even the broad authority that Congress granted in the FAA. As described below, the government has interpreted the FAA to allow it to intercept, copy, and review essentially everyone’s internet communications in order to search for identifiers associated with its targets. This intrusive and far-reaching practice has no basis in the statute. The statute authorizes surveillance only of targets’ communications; it does not authorize surveillance of everyone.
Upstream Surveillance 39. The government conducts at least two kinds of surveillance under the FAA. Under a program called “PRISM,” the government obtains stored and real-time communications directly from U.S. companies—such as Google, Yahoo, Facebook, and Microsoft—that provide communications services to targeted accounts. 40. This case concerns a second form of surveillance, called Upstream. Upstream surveillance involves the NSA’s seizing and searching the internet communications of U.S. citizens and residents en masse as those communications travel across the internet “backbone” in the United States. The internet backbone is the network of high-capacity cables, switches, and routers that facilitates both domestic and international communication via the internet. 41. The NSA conducts Upstream surveillance by connecting surveillance devices to multiple major internet cables, switches, and routers inside the United States. These access points are controlled by the country’s largest telecommunications providers, including Verizon Communications, Inc. and AT&T, Inc. In some or all instances, aspects of Upstream surveillance may be conducted by the telecommunications providers on the government’s behalf.
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42. Upstream surveillance is intended to enable the comprehensive monitoring of
international internet traffic. With the assistance of telecommunications providers, the NSA
intercepts a wide variety of internet communications, including emails, instant messages,
webpages, voice calls, and video chats. It copies and reviews substantially all international
emails and other “text-based” communications—i.e., those whose content includes searchable
text.
43. More specifically, Upstream surveillance encompasses the following processes,
some of which are implemented by telecommunications providers acting at the NSA’s
direction:
• Copying. Using surveillance devices installed at key access points, the NSA makes a copy of substantially all international text-based communications—and many domestic ones—flowing across certain high-capacity cables, switches, and routers. The copied traffic includes email, internet-messaging communications, web-browsing content, and search-engine queries.
• Filtering. The NSA attempts to filter out and discard some wholly domestic communications from the stream of internet data, while preserving international communications. The NSA’s filtering out of domestic communications is incomplete, however, for multiple reasons. Among them, the NSA does not eliminate bundles of domestic and international communications that transit the internet backbone together. Nor does it eliminate domestic communications that happen to be routed abroad.
• Content Review. The NSA reviews the copied communications—including their full content—for instances of its search terms. The search terms, called “selectors,” include email addresses, phone numbers, internet protocol (“IP”) addresses, and other identifiers that NSA analysts believe to be associated with foreign intelligence targets. Again, the NSA’s targets are not limited to suspected foreign agents and terrorists, nor are its selectors limited to individual email addresses. The NSA may monitor or “task” selectors used by large groups of people who are not suspected of any wrongdoing— such as the IP addresses of computer servers used by hundreds of different people.
• Retention and Use. The NSA retains all communications that contain selectors associated with its targets, as well as those that happened to be bundled with them in transit. As discussed further below, NSA analysts may read, query, data-mine, and analyze these communications with few restrictions, and they may share the results of those efforts with the FBI, including in aid of criminal investigations.
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44. One aspect of the processes outlined above bears emphasis: Upstream surveillance is not limited to communications sent or received by the NSA’s targets. Rather, it involves the surveillance of essentially everyone’s communications. The NSA systematically examines the full content of substantially all international text-based communications (and many domestic ones) for references to its search terms. In other words, the NSA copies and reviews the communications of millions of innocent people to determine whether they are discussing or reading anything containing the NSA’s search terms. The NSA’s practice of reviewing the content of communications for selectors is sometimes called “about” surveillance. This is because its purpose is to identify not just communications that are to or from the NSA’s targets but also those that are merely “about” its targets. Although it could do so, the government makes no meaningful effort to avoid the interception of communications that are merely “about” its targets; nor does it later purge those communications.
Targeting and Minimization Procedures 45. As indicated above, the FAA requires the government to adopt targeting and minimization procedures that govern who may be targeted for surveillance by executive-branch employees and how communications are to be handled once intercepted. These procedures are extremely permissive, and to the extent they impose limitations, those restrictions are riddled with exceptions. 46. Nothing in the targeting procedures meaningfully constrains the government’s selection of foreign targets. Nor do the targeting procedures require the government to take measures to avoid intercepting U.S. persons’ international communications. The targeting procedures expressly contemplate “about” surveillance, and thus the interception and review of communications between non-targets.
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47. The minimization procedures are equally feeble. They impose no affirmative obligation on the NSA to promptly identify and purge U.S. persons’ communications once they have been obtained. Rather, they allow the NSA to retain communications gathered via Upstream surveillance for as long as three years by default. It can retain those communications indefinitely if the communications are encrypted; if they are found to contain foreign intelligence information (again, defined broadly); or if they appear to be evidence of a crime. Indeed, the NSA may even retain and share wholly domestic communications obtained through the accidental targeting of U.S. persons if the NSA determines that the communications contain “significant foreign intelligence information” or evidence of a crime. The minimization procedures also expressly contemplate that the NSA will intercept, retain, and disseminate attorney-client privileged communications. The minimization procedures bar the NSA from querying Upstream data using identifiers associated with specific U.S. persons, but they do not otherwise prohibit the NSA from conducting queries designed to reveal information to, from, or about U.S. persons.
The Surveillance of Plaintiffs 48. Plaintiffs are educational, legal, human rights, and media organizations. Their work requires them to engage in sensitive and sometimes privileged communications, both international and domestic, with journalists, clients, experts, attorneys, civil society organizations, foreign government officials, and victims of human rights abuses, among others. 49. By intercepting, copying, and reviewing substantially all international text-based communications—and many domestic communications as well—as they transit telecommunications networks inside the United States, the government is seizing and searching Plaintiffs’ communications in violation of the FAA and the Constitution.
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50. The interception, copying, and review of Plaintiffs’ communications while in transit is a violation of Plaintiffs’ reasonable expectation of privacy in those communications. It is also a violation of Plaintiffs’ right to control those communications and the information they reveal and contain.
51. Furthermore, because of the nature of their communications, and the location and identities of the individuals and groups with whom and about whom they communicate, there is a substantial likelihood that Plaintiffs’ communications intercepted by the NSA through Upstream surveillance are retained, read, and disseminated.
52. The retention, reading, and dissemination of Plaintiffs’ communications is a further, discrete violation of Plaintiffs’ reasonable expectation of privacy in those communications. It is also a further, discrete violation of Plaintiffs’ right to control those communications and the information they reveal and contain.
53. Plaintiffs, in connection with constitutionally protected activities, communicate with people whom the government is likely to target when conducting Upstream surveillance, including foreign government officials, journalists, experts, human rights defenders, victims of human rights abuses, and individuals believed to have information relevant to counterterrorism efforts.
54. A significant amount of the information that Plaintiffs exchange over the internet is “foreign intelligence information” within the meaning of the FAA.
55. Because of ongoing government surveillance, including Upstream surveillance, Plaintiffs have had to take burdensome and sometimes costly measures to minimize the chance that the confidentiality of their sensitive information will be compromised. Plaintiffs have variously had to develop new protocols for transmitting sensitive information, to travel long
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distances to collect information that could otherwise have been shared electronically, and in some circumstances to forgo particularly sensitive communications altogether.
56. Because of ongoing government surveillance, including Upstream surveillance, Plaintiffs are not able to gather and relay information, represent their clients, and engage in domestic and international advocacy as they would in the absence of the surveillance. Upstream surveillance reduces the likelihood that clients, users, journalists, witnesses, experts, civil society organizations, foreign government officials, victims of human rights abuses, and other individuals will share sensitive information with Plaintiffs.
57. Upstream surveillance is inhibiting the constitutionally protected communications and activities of Plaintiffs and others not before the Court.
Wikimedia Foundation 58. Wikimedia is a non-profit organization dedicated to encouraging the growth, development, and distribution of free, multilingual, educational content. In this effort, it develops and maintains “wiki”-based projects, and provides the full contents of those projects to individuals around the world free of charge. At present, Wikimedia operates twelve freeknowledge projects (“Projects”) as well as other related websites and pages on the internet. 59. The best-known of Wikimedia’s Projects is Wikipedia—a free internet encyclopedia that is one of the top ten most-visited websites in the world and one of the largest collections of shared knowledge in human history. In 2014, Wikipedia contained more than 33 million articles in over 275 languages, and Wikimedia sites received between 412 and 495 million monthly visitors. On average, Wikimedia users visited Wikimedia “pages” or entries over 16 billion times each month during 2014. Wikipedia’s content is collaboratively researched and written by millions of volunteers, many of whom choose not to identify
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themselves, and is in most instances open to editing by anyone. Volunteers also use Wikipedia discussion forums or “discussion pages” to debate the editorial policies and decisions required for reliable and neutral content.
60. Other Projects include Wikimedia Commons, an online repository of free images, sound, and other media files; and Wikibooks, a platform for the creation of free textbooks and annotated texts that anyone can edit consistent with the policies of the site.
61. Wikimedia provides the technical infrastructure for the Projects, much of which is hosted on Wikimedia’s servers in Virginia, Texas, and California. In addition, Wikimedia develops software and provides tools for others to develop software platforms; develops mobile phone applications and enters into partnerships; administers grants to support activity that benefits the Wikimedia movement; provides administrative support to grantees; organizes conferences and community-outreach events globally; and engages in advocacy on issues that affect the Wikimedia community—which, at its broadest level, consists of individuals who read or contribute to the work of the twelve Projects.
62. Upstream surveillance implicates at least two categories of Wikimedia communications: (i) Wikimedia communications related to the activities of its users, who read and edit Wikimedia’s Projects and webpages, and who use them to interact with each other; and (ii) communications by Wikimedia staff.
63. As the operator of one of the most-visited websites in the world, Wikimedia engages in an extraordinarily high volume of internet communications. From October 2013 to October 2014, Wikimedia websites received over 248 billion page requests. Over the lifespan of the Wikimedia Projects, Wikimedia’s users have edited its pages more than 2.3 billion times. More than 89 million registered and unregistered users have edited a Wikimedia page. Each of
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these activities involves internet communications between Wikimedia and its users—the majority of whom are located abroad.
64. Indeed, Wikimedia engages in hundreds of billions of international communications each year. For a user to view, edit, or contribute to a Wikimedia Project webpage, the user’s device must send at least one HTTP or HTTPS “request” to a Wikimedia server. “HTTP” and “HTTPS” are common protocols for transmitting data via the internet, including the content of many webpages. The number of requests required for a user to access a particular webpage depends on the number of graphics, videos, and other specialized components featured on the page. After receiving such a user request, the Wikimedia server transmits the content of the requested webpage component to the user’s device, where it is rendered and displayed to the user. In January 2015, Wikimedia’s U.S.-based servers received and responded to over 62 billion HTTP or HTTPS requests from outside the United States.
65. Wikimedia also frequently engages in communications that permit its users to interact more directly, including one-on-one. For example, a registered user of Wikimedia may send an email via Wikimedia to another registered user, so long as both have enabled email communications on their Wikimedia accounts. Similarly, Wikimedia engages in communications that allow users to interact in small or limited groups—including over wikis that only certain users, such as user-community leaders, have access to, and mailing lists with restricted membership.
66. Wikimedia’s communications related to its users’ activities are often sensitive and private. These communications reveal a detailed picture of the everyday concerns and reading habits of Wikimedia’s users, and often constitute a record of their political, religious, sexual, medical, and expressive interests.
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67. Seizing and searching Wikimedia’s communications is akin to seizing and searching the patron records of the largest library in the world—except that Wikimedia’s communications provide a more comprehensive and detailed picture of its users’ interests than any previous set of library records ever could have offered.
68. Because of the sensitivity of this information, Wikimedia seeks to collect as little of it as possible. Where it does collect user information, Wikimedia strives to keep it for only a limited amount of time, consistent with the maintenance, understanding, and improvement of the Projects and with Wikimedia’s legal obligations. Still, Wikimedia possesses a large volume of sensitive information about its users, and it transmits a large volume of sensitive information about those users every day.
69. In addition to Wikimedia’s communications related to its users’ activities, as described above, Wikimedia engages in a second category of sensitive communications. Certain members of Wikimedia’s staff routinely engage in sensitive, confidential, and privileged internet communications with non-U.S. persons located abroad in carrying out Wikimedia’s work.
70. Wikimedia’s communications—both communications related to the activities of Wikimedia’s users and the communications of its staff members—are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of Wikimedia, its staff, and its users, and it violates their right to control those communications and the information they contain.
71. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates Wikimedia’s international communications because Wikimedia is communicating with or about persons the government has targeted for Upstream surveillance. Wikimedia’s
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international contacts include foreign telecommunications companies, foreign government officials, Wikimedia users and their legal counsel, Wikimedia trustees and international contractors, Wikimedia’s international outside legal counsel, project partners, grantees, and volunteers—some of whom are likely targets. Wikimedia’s communications with these contacts sometimes concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” Wikimedia communicates both with and about these likely targets. Wikimedia’s international communications contain, among other things, information about its foreign contacts, including the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to Wikimedia’s work.
72. Moreover, hundreds of billions of Wikimedia’s international communications— its HTTP and HTTPS transmissions as well as its internal logs of user activity—contain details such as website addresses and IP addresses. For example, some Wikipedia pages contain the website addresses and domain names of foreign companies and organizations likely targeted for Upstream surveillance. Whenever a Wikimedia user abroad edits or contributes to a Project webpage that happens to reference one of the NSA’s selectors, Wikimedia engages in an international communication containing that selector. The same is often true when a Wikimedia user abroad simply reads such a Project webpage. Some of these communications are likely retained, read, and disseminated in the course of Upstream surveillance.
73. The NSA has expressed interest in surveilling Wikimedia’s communications. An NSA slide disclosed by the media asks, “Why are we interested in HTTP?” It then answers its own question: “Because nearly everything a typical user does on the Internet uses HTTP.” This statement is surrounded by the logos of major internet companies and websites, including Facebook, Yahoo, Twitter, CNN.com, and Wikipedia. The slide indicates that, by monitoring
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Case 1:15-cv-00662-RDB Document 1 Filed 03/10/15 Page 24 of 42 HTTP communications, the NSA can observe “nearly everything a typical user does” online— including individuals’ online reading habits and other internet activities. This information is queried and reviewed by analysts using a search tool that allows NSA analysts to examine data intercepted pursuant to the FAA and other authorities.
74. Upstream surveillance undermines Wikimedia’s ability to conduct its work. Wikimedia depends on its ability to ensure anonymity for individuals abroad who view, edit, or otherwise use Wikimedia Projects and related webpages. The ability to read, research, and write anonymously is essential to the freedoms of expression and inquiry. In addition, Wikimedia’s staff depend on the confidentiality of their communications, including in some cases their ability to ensure that their contacts’ identities will not be revealed. Because of these twin needs for anonymity and confidentiality, Upstream surveillance harms the ability of
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Wikimedia’s staff to engage in communications essential to their work and compromises Wikimedia’s organizational mission by making online access to knowledge a vehicle for U.S. government monitoring.
75. Due in part to NSA surveillance, including Upstream surveillance, Wikimedia has undertaken burdensome and costly measures to protect its communications, including adopting more secure methods of electronic communication, and in some instances avoiding sensitive topics or forgoing communications altogether.
76. Despite these precautions, Wikimedia believes that Upstream surveillance has resulted and will result in some foreign readers, editors, contributors, and volunteers being less willing to read, contribute to, or otherwise engage with Wikimedia’s Projects. The loss of these foreign users is a direct detriment to Wikimedia, its ability to receive information, and its organizational goal of increasing global access to knowledge. It also harms Wikimedia’s domestic users, who do not have access to information and opinions that Wikipedia’s foreign contributors would otherwise have provided. Similarly, Wikimedia believes that Upstream surveillance reduces the likelihood that Wikimedia’s foreign volunteers, grantees, and other contacts will communicate with staff members, because they fear that their communications will be intercepted by the U.S. government and also shared with the other governments, intelligence services, and organizations with which the U.S. government cooperates.
National Association of Criminal Defense Lawyers 77. The National Association of Criminal Defense Lawyers (“NACDL”) is a membership organization based in Washington, D.C. NACDL’s mission is to foster the integrity, independence, and expertise of the criminal defense profession, and to promote the
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proper and fair administration of justice. NACDL has approximately 9,200 members as well as 90 local, state, and international affiliate organizations with approximately 40,000 members.
78. As defense attorneys, NACDL’s members engage in international and domestic internet communications that are essential to the effective representation of their clients. Among other things, NACDL’s members routinely engage in sensitive, confidential, and privileged internet communications with non-U.S. persons located abroad as part of their representations.
79. The communications of NACDL’s members are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of members’ communications and it violates their right to control their communications and the information they contain.
80. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates international communications of NACDL’s members because they are communicating with or about persons the government has targeted for Upstream surveillance. In the course of their representations, NACDL members communicate internationally with clients, clients’ families, witnesses, journalists, human rights organizations, experts, investigators, and foreign government officials, some of whom are likely targets. Their communications with these contacts frequently concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” NACDL members communicate both with and about these likely targets. Members’ international communications contain, among other things, details about their foreign contacts and other important sources of information—details such as the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to their work.
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81. One group of NACDL members is especially likely to have their communications retained, read, and disseminated in the course of Upstream surveillance: defense attorneys who represent individuals in criminal prosecutions in which the government has acknowledged its use FAA surveillance. In these cases, the government’s prosecution of the defendant is based on evidence obtained from an FAA target. As a result, defense attorneys are especially likely to engage in communications to, from, or about FAA targets in the course of investigating the government’s allegations, contacting witnesses, and collecting their own evidence. Indeed, in several of these cases, the targeted selector—e.g., the targeted email address—has been identified in press reports or may be gleaned from court filings. NACDL defense attorneys who communicate internationally with or about that targeted selector will have their communications retained by the government, much as their clients’ communications were warrantlessly intercepted and retained.
82. NACDL members have an ethical obligation to protect the confidentiality of their clients’ information, including information covered by the attorney-client privilege.
83. Upstream surveillance compromises NACDL members’ ability to comply with their ethical obligations and undermines their effective representation of their clients. Members’ defense work depends on the confidentiality of their communications, including their ability to assure contacts that their communications—and, in some cases, even their identities—will not be revealed. Due in part to NSA surveillance, including Upstream surveillance, NACDL’s members have undertaken burdensome and costly measures to protect their communications, including adopting more secure methods of electronic communication, traveling to conduct in-person meetings, and in some instances avoiding sensitive topics or forgoing communications altogether. Despite these precautions, NACDL believes that
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Upstream surveillance reduces the likelihood that potential sources, witnesses, experts, and foreign government officials will share sensitive information with NACDL’s members, because those contacts fear that their communications will be intercepted by the U.S. government and also shared with the other governments, intelligence services, and organizations with which the U.S. government cooperates.
Human Rights Watch 84. HRW is a non-profit, non-governmental human rights organization based in New York City. It employs approximately 400 staff members located across offices around the world. Formed in 1978, HRW’s mission is to defend the rights of people worldwide. HRW conducts fact-finding investigations into human rights abuses by governments and non-state actors in all regions of the world. 85. HRW engages in international and domestic internet communications that are essential to its mission. Among other things, HRW’s U.S.-based staff routinely engage in sensitive and confidential internet communications with non-U.S. persons located abroad in carrying out HRW’s research, reporting, and advocacy work. 86. HRW’s communications are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of HRW’s communications and it violates HRW’s right to control those communications and the information they contain. 87. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates HRW’s international communications because HRW is communicating with or about persons the government has targeted for Upstream surveillance. HRW’s international contacts include foreign government officials, humanitarian agencies, think tanks, military officials, human rights defenders, politicians, dissidents, victims of human rights abuses,
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perpetrators of human rights abuses, religious groups, media, and scholars, some of whom are likely targets. HRW’s communications with these contacts frequently concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” HRW communicates both with and about these likely targets. HRW’s international communications contain, among other things, details about its foreign contacts and other important sources of information—details such as the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to HRW’s work.
88. Upstream surveillance undermines HRW’s ability to conduct its work. HRW’s research, reporting, and advocacy depend on the confidentiality of its communications, including its ability to assure its contacts that their communications—and, in some cases, even their identities—will not be revealed. Due in part to NSA surveillance, including Upstream surveillance, HRW has undertaken burdensome and costly measures to secure and protect its communications, including adopting more secure methods of electronic communication, traveling to conduct in-person meetings, and in some instances avoiding sensitive topics or forgoing communications altogether. Despite these precautions, HRW believes that Upstream surveillance reduces the likelihood that sources, witnesses, experts, foreign government officials, and victims of human rights abuses will share sensitive information with HRW’s staff, because they fear that their communications will be intercepted by the U.S. government and also shared with the other governments, intelligence services, and organizations with which the U.S. government cooperates.
Amnesty International USA 89. AIUSA, headquartered in New York City, is one of Amnesty International’s largest national sections, with hundreds of thousands of members and supporters. Through its
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advocacy campaigns, AIUSA seeks to expose and stop human rights abuses in the United States and throughout the world.
90. AIUSA engages in international and domestic internet communications that are essential to its mission. Among other things, some of AIUSA’s U.S.-based staff—as well as some AIUSA members who serve as volunteer specialists on particular countries and thematic issues—routinely engage in sensitive and confidential internet communications with non-U.S. persons located abroad in carrying out AIUSA’s reporting and advocacy work.
91. AIUSA’s communications are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of AIUSA’s communications and it violates AIUSA’s right to control those communications and the information they contain.
92. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates AIUSA’s international communications because AIUSA is communicating with or about persons the government has targeted for Upstream surveillance. AIUSA’s international contacts include Amnesty International researchers who are documenting and witnessing human rights violations in the field, human rights defenders, victims of violations and their families, eyewitnesses to violations, political dissidents, government officials, journalists, and lawyers, some of whom are likely targets. AIUSA’s communications with these contacts frequently concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” AIUSA communicates both with and about these likely targets. AIUSA’s international communications contain, among other things, details about its foreign contacts and other important sources of information—details such as the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to AIUSA’s work.
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93. Upstream surveillance undermines AIUSA’s ability to conduct its work. AIUSA’s reporting and advocacy depends on the confidentiality of its communications, including its ability to assure its contacts that their communications—and, in some cases, even their identities—will not be revealed. Due in part to NSA surveillance, including Upstream surveillance, some AIUSA staff strive to communicate particularly sensitive matters in-person, and must sometimes avoid sensitive topics or forgo exchanging information about these matters altogether. Despite these precautions, AIUSA believes that Upstream surveillance reduces the likelihood that sources, witnesses, experts, foreign government officials, and victims of human rights abuses will share sensitive information with AIUSA’s staff and members, because they fear that their communications will be intercepted by the U.S. government and also shared with the other governments, intelligence services, and organizations with which the U.S. government cooperates.
PEN American Center 94. PEN is an association based in New York City of approximately 4,000 novelists, journalists, editors, poets, essayists, playwrights, publishers, translators, agents, and other professionals, and an even larger network of readers and supporters. It is the largest of the organizations within PEN International. For the last 90 years, PEN has worked to ensure that people all over the world are at liberty to create literature, to convey ideas freely, and to express their views unimpeded. One of PEN’s core projects is to advocate on behalf of persecuted writers across the globe, so that they might be free to write and to express their ideas. 95. PEN engages in international and domestic internet communications that are essential to its mission. Among other things, PEN’s U.S.-based staff routinely engage in
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sensitive and confidential internet communications with non-U.S. persons located abroad in carrying out PEN’s research and advocacy work.
96. PEN’s communications are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of PEN’s communications and it violates PEN’s right to control those communications and the information they contain.
97. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates PEN’s international communications because PEN is communicating with or about persons the government has targeted for Upstream surveillance. PEN’s international contacts include writers whose work and experiences relate to political upheavals, human rights violations, freedom of the press, and government surveillance; those writers’ families and legal representatives; human rights defenders; and other PEN partners in countries such as Syria, Cuba, China, Iran, and Ethiopia—some of whom are likely targets. PEN’s communications with these contacts frequently concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” PEN communicates both with and about these likely targets. PEN’s international communications contain, among other things, details about its foreign contacts and other important sources of information—details such as the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to PEN’s work.
98. Upstream surveillance undermines PEN’s ability to conduct its work. PEN’s research and advocacy depend on the confidentiality of its communications, including its ability to assure its contacts that their communications—and, in some cases, even their identities—will not be revealed. Due in part to NSA surveillance, including Upstream surveillance, PEN staff have undertaken burdensome measures to secure and protect their
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communications, including adopting more secure methods of electronic communication, and in some instances avoiding sensitive topics or forgoing communications altogether. Despite these precautions, PEN believes that Upstream surveillance reduces the likelihood that foreign writers and other contacts will share sensitive information with PEN’s staff, because they fear that their communications will be intercepted by the U.S. government and also shared with the other governments, intelligence services, and organizations with which the U.S. government cooperates.
Global Fund for Women 99. GFW, based in San Francisco and New York City, is a grant-maker and a global advocate for women’s human rights. GFW advances the movement for women’s human rights by directing resources to and raising the voices of women worldwide. GFW invests in local, courageous women and women-led organizations, and creates digital advocacy campaigns on critical global issues for women and girls. Since its inception in 1986, GFW has awarded 9,921 grants totaling $120 million to 4,759 organizations in 175 countries. 100. GFW engages in international and domestic internet communications that are essential to its mission. Among other things, GFW’s U.S.-based staff routinely engage in sensitive, confidential, and privileged internet communications with non-U.S. persons located abroad in carrying out GFW’s grant-making and advocacy work. 101. GFW’s communications are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of GFW’s communications and it violates GFW’s right to control those communications and the information they contain. 102. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates GFW’s international communications because GFW is communicating with or
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about persons the government has targeted for Upstream surveillance. GFW’s international contacts include foreign banks, foreign government agencies, funders, attorneys, and grantee and partner organizations working in conflict zones or on politically sensitive issues abroad, some of whom are likely targets. GFW’s communications with these contacts frequently concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” GFW communicates both with and about these likely targets.	  GFW’s international communications contain, among other things, details about its foreign contacts and other important sources of information—details such as the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to GFW’s work.
103. Upstream surveillance undermines GFW’s ability to conduct its work. GFW’s grant-making depends on the confidentiality of its communications, including its ability to assure its contacts that their communications—and, in some cases, even their identities—will not be revealed. Due in part to NSA surveillance, including Upstream surveillance, GFW’s staff must exercise extreme caution when engaging in certain international communications, and in some instances avoid sensitive topics or forgo communications altogether. Some of GFW’s international contacts will communicate with the organization only by phone or Skype, rather than email, because they believe that email is a less secure means of communication. Other of GFW’s international contacts will communicate via email, but only if staff avoid using certain words in their communications that may result in further government scrutiny. Despite these precautions, GFW believes that Upstream surveillance reduces the likelihood that current and prospective grantees will share sensitive information with GFW’s staff, because they fear that their communications will be intercepted by the U.S. government and also shared with the
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other governments, intelligence services, and organizations with which the U.S. government cooperates.
The Nation Magazine 104. The Nation is America’s oldest weekly magazine of opinion, news, and culture. The Nation is also a digital media company, reporting daily on politics, social issues, and the arts. Its journalists report on a wide range of issues relating to international affairs, including the wars in Iraq and Afghanistan, the Israel–Palestine conflict, protest activities and politics in China and elsewhere in East Asia, and civil wars and other conflicts in Africa and Latin America. 105. The Nation engages in international and domestic internet communications that are essential to its mission. Among other things, The Nation’s staff and contributing writers routinely engage in sensitive and confidential internet communications with non-U.S. persons located abroad in carrying out The Nation’s research, reporting, and editing. 106. The Nation’s communications are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of The Nation’s communications and it violates The Nation’s right to control those communications and the information they contain. 107. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates The Nation’s international communications because The Nation is communicating with or about persons the government has targeted for Upstream surveillance. The Nation’s international contacts include foreign journalists in conflict zones, foreign government officials, political dissidents, human rights activists, and members of guerrilla and insurgency movements, some of whom are likely targets. The Nation’s communications with these
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contacts frequently concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” The Nation communicates both with and about these likely targets. The Nation’s international communications contain, among other things, details about its foreign contacts and other important sources of information—details such as the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to The Nation’s work.
108. Upstream surveillance undermines The Nation’s ability to conduct its work. The Nation’s research and reporting depends on the confidentiality of its communications, including its ability to assure its contacts that their communications—and, in some cases, even their identities—will not be revealed. Due in part to NSA surveillance, including Upstream surveillance, The Nation has undertaken burdensome and costly measures to protect its communications, including adopting more secure methods of electronic communication, and in some instances avoiding sensitive topics or forgoing communications altogether. Despite these precautions, The Nation believes that Upstream surveillance reduces the likelihood that foreign journalists and sources will share sensitive information with The Nation, because they fear that their communications will be intercepted by the U.S. government and also shared with the other governments, intelligence services, and organizations with which the U.S. government cooperates.
The Rutherford Institute 109. The Rutherford Institute, founded in 1982 and based in Virginia, is a civil liberties organization committed to protecting the constitutional freedoms of Americans and the human rights of all people. Rutherford provides free legal services in defense of civil liberties
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and educates the public about constitutional and human rights issues. It also advocates on behalf of individuals abroad whose rights are threatened by foreign governments.
110. Rutherford engages in international and domestic internet communications that are essential to its mission. Among other things, Rutherford’s staff, who are based in the U.S., routinely engage in sensitive and confidential internet communications with non-U.S. persons located abroad in carrying out Rutherford’s advocacy, legal, and educational activities.
111. Rutherford’s communications are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of Rutherford’s communications, and it violates Rutherford’s right to control those communications and the information they contain.
112. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates Rutherford’s international communications because Rutherford is communicating with or about persons the government has targeted for Upstream surveillance. Rutherford’s international contacts include human rights and civil liberties advocates, foreign government officials, and individuals whose rights are threatened by the U.S. or foreign governments, some of whom are likely targets. Rutherford’s communications with these contacts frequently concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” Rutherford communicates both with and about these likely targets. Rutherford’s international communications, among other things, contain details about its foreign contacts and other important sources of information—details such as the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to Rutherford’s work.
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113. Upstream surveillance undermines Rutherford’s ability to conduct its work. Rutherford’s advocacy depends on its ability to assure its contacts that their communications— and, in some cases, even their identities—will not be revealed. Due in part to NSA surveillance, including Upstream surveillance, Rutherford in some instances avoids sensitive topics or forgoes communications altogether. Rutherford believes that Upstream surveillance reduces the likelihood that victims of human rights abuses, witnesses, foreign government officials, and other contacts will share sensitive information with Rutherford, because they fear that their communications will be intercepted by the U.S. government and also shared with the other governments, intelligence services, and organizations with which the U.S. government cooperates.
The Washington Office on Latin America 114. WOLA is a non-profit, non-governmental organization based in Washington D.C. WOLA promotes human rights, democracy, and social justice by working with partners in Latin America and the Caribbean to shape policies in the United States and abroad. WOLA is regularly called upon for its research and analysis by policymakers, the media, and academics in the U.S. and Latin America. To further this work, WOLA gathers and publishes information about U.S. policies concerning Latin America, U.S. assistance (military or otherwise) to Latin American countries, and U.S. immigration practices, among other things. 115. WOLA engages in international and domestic internet communications that are essential to its mission. Among other things, WOLA’s U.S.-based staff routinely engage in sensitive and confidential internet communications with non-U.S. persons located abroad in carrying out WOLA’s research, policy, and advocacy work.
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116. WOLA’s communications are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of WOLA’s communications and it violates WOLA’s right to control those communications and the information they contain.
117. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates WOLA’s international communications because WOLA is communicating with or about persons the government has targeted for Upstream surveillance. For instance, WOLA communicates with foreign government officials located abroad—including at times presidents and foreign ministers. Similarly, it communicates with policymakers, academics, journalists, human rights defenders, victims of human rights abuses, and staff from multilateral institutions, such as the Organization of American States, the Inter-American Development Bank, and the United Nations, some of whom are also likely targets. WOLA’s communications with these contacts frequently concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” WOLA communicates both with and about these likely targets. WOLA’s international communications contain, among other things, details about its foreign contacts and other important sources of information—details such as the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to WOLA’s work.
118. Upstream surveillance undermines WOLA’s ability to conduct its work. WOLA’s research and advocacy depend on the confidentiality of its communications, including its ability to assure its contacts that their communications—and, in some cases, even their identities—will not be revealed. Due in part to NSA surveillance, including Upstream surveillance, WOLA has undertaken burdensome and costly measures to secure and protect its communications, including adopting more secure methods of electronic communication,
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traveling to conduct in-person meetings, and in some instances avoiding sensitive topics or forgoing communications altogether. Despite these precautions, WOLA believes that Upstream surveillance reduces the likelihood that policymakers, foreign government officials, experts, witnesses, and victims of human rights abuses will share sensitive information with WOLA’s staff, because they fear that their communications will be intercepted by the U.S. government and also shared with the other governments, intelligence services, and organizations with which the U.S. government cooperates.
CAUSES OF ACTION 119. Upstream surveillance exceeds the authority granted by 50 U.S.C. § 1881a, and therefore violates 5 U.S.C. § 706. 120. Upstream surveillance violates the Fourth Amendment to the Constitution. 121. Upstream surveillance violates the First Amendment to the Constitution. 122. Upstream surveillance violates Article III of the Constitution.
PRAYER FOR RELIEF WHEREFORE Plaintiffs respectfully request that the Court:
1. Exercise jurisdiction over Plaintiffs’ Complaint; 2. Declare that Upstream surveillance violates 50 U.S.C. § 1881a and 5 U.S.C. § 706; 3. Declare that Upstream surveillance is unconstitutional under the First and Fourth Amendments, and under Article III; 4. Permanently enjoin Defendants from continuing Upstream surveillance; 5. Order Defendants to purge all records of Plaintiffs’ communications in their possession obtained pursuant to Upstream surveillance;
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6. Award Plaintiffs fees and costs pursuant to 28 U.S.C. § 2412; 7. Grant such other and further relief as the Court deems just and proper.

Dated: March 10, 2015 Baltimore, Maryland

Respectfully submitted,
/s/ Deborah A. Jeon Deborah A. Jeon (Bar No. 06905) jeon@aclu-md.org David R. Rocah (Bar No. 27315) rocah@aclu-md.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND 3600 Clipper Mill Rd., #350 BaltImore, MD 21211 Phone: (410) 889-8555 Fax: (410) 366-7838
Patrick Toomey (admission pro hac vice pending) ptoomey@aclu.org Jameel Jaffer (admission pro hac vice pending) jjaffer@aclu.org Alex Abdo (admission pro hac vice pending) aabdo@aclu.org Ashley Gorski (admission pro hac vice pending) agorski@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654
Charles S. Sims (admission pro hac vice pending) csims@proskauer.com David A. Munkittrick (admission pro hac vice pending)
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Case 1:15-cv-00662-RDB Document 1 Filed 03/10/15 Page 42 of 42 dmunkittrick@proskauer.com John M. Browning (admission pro hac vice pending) jbrowning@proskauer.com PROSKAUER ROSE LLP Eleven Times Square New York, NY 10036 Phone: (212) 969-3000 Fax: (212) 969-2900
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 Case 1:15-cv-00662-TSE Document 77-1 Filed 08/06/15 Page 1 of 62

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

_______________________________________

)

WIKIMEDIA FOUNDATION, et al.,

)

)

Plaintiffs,

)

)

Civil Action No.

v.

)

)

1:15-cv-00662-TSE

NATIONAL SECURITY AGENCY, et al., )

)

Defendants.

)

_______________________________________)

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

Date: August 6, 2015

BENJAMIN C. MIZER Principal Deputy Assistant Attorney General
JOSEPH H. HUNT Director, Federal Programs Branch
ANTHONY J. COPPOLINO Deputy Branch Director
JAMES J. GILLIGAN Special Litigation Counsel
RODNEY PATTON JULIA A. BERMAN CAROLINE J. ANDERSON Trial Attorneys
U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 6102 Washington, D.C. 20044 Phone: (202) 514-3358 Fax: (202) 616-8470 E-mail: james.gilligan@usdoj.gov
Counsel for Defendants

Case 1:15-cv-00662-TSE Document 77-1 Filed 08/06/15 Page 2 of 62
TABLE OF CONTENTS
PAGE
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................4
The Foreign Intelligence Surveillance Act ......................................................................................4
The FISA Amendments Act of 2008 ...............................................................................................6
Upstream Collection Under Section 702 .........................................................................................9
Plaintiffs’ Allegations ....................................................................................................................10
ARGUMENT .................................................................................................................................14
I. LEGAL STANDARDS .....................................................................................................14
A. Pleading Standards Under Twombly and Iqbal ......................................................14
B. The Requirements of Standing...............................................................................14
II. PLAINTIFFS HAVE NOT PLAUSIBLY ALLEGED THAT THEY HAVE BEEN INJURED BY THE INTERCEPTION, COPYING, AND REVIEW OF THEIR ONLINE COMMUNICATIONS IN THE UPSTREAM COLLECTION PROCESS..........................................................................16
A. Plaintiffs Have Not Plausibly Alleged That Upstream Collection Involves the Interception, Copying, and Selector Review of Substantially All International Online Communications Transiting the United States ...............16
B. Neither the Alleged “Extraordinarily High Volume” and Global Distribution of Wikimedia’s Communications, Nor Plaintiffs’ Unilateral Assumptions About How Upstream Surveillance “Must Be” Conducted to Achieve Its Objectives, Establishes That Any of the Plaintiffs’ Communications (Including Wikimedia’s) Are Intercepted, Copied, or Reviewed for Selectors in the Upstream Collection Process..................................................................................................20
1. Wikimedia’s Co-Plaintiffs Cannot Base Their Standing on the Alleged Number and Distribution of Visits to Wikimedia Websites .....................................................................................................21

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PAGE
2. Wikimedia’s Alleged International Online Communications Represent Only a Small Proportion of the Total Volume of Communications Carried on the Internet...............................................24
3. Wikimedia’s Allegation That the Volume of its Communications Makes Interception of at Least Some of Those Communications a Virtual Certainty is Statistically Unsupported ........................................27
4. Wikimedia’s Allegation That the Geographic Distribution of its Communications Makes Interception of Those Communications a Virtual Certainty Also Rests on Unsupported Speculation About the Manner in Which Upstream Surveillance is Conducted ......................29
5. The Allegation that the Volume and Distribution of Wikimedia’s Communications Make it Likely That They Have Been Intercepted, Copied, and Reviewed in the Upstream Process is Legally Insufficient, Under Amnesty International, to Establish Wikimedia’s Standing................................................................................32
C. Wikimedia Has Alleged No Injury from the Claimed Interception, Copying and Review of Its Online Communications ............................................34
III. PLAINTIFFS HAVE NOT PLAUSIBLY ALLEGED THAT COMMUNICATIONS OF THEIRS ARE RETAINED, READ, AND DISSEMINATED BY THE NSA AS PART OF THE UPSTREAM SURVEILLANCE PROCESS ...........................................................................................40
A. Plaintiffs’ Allegations That Their Staffs Engage in Communications With Likely Targets of Upstream Surveillance, About Topics That Could Be Considered Foreign-Intelligence Information, Are Insufficient Under Amnesty International to Establish Their Standing.................40
B. NACDL Has Not Established Its Standing to Sue on Behalf of its Members ................................................................................................................42
IV. PLAINTIFFS’ ALLEGATIONS THAT UPSTREAM COLLECTION “UNDERMINES [THEIR] ABILITY TO CONDUCT [THEIR] WORK” ALSO FAIL TO ESTABLISH AN INJURY SUFFICIENT TO CONFER STANDING .......................................................................................................................47
CONCLUSION ..............................................................................................................................50
ii

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TABLE OF AUTHORITIES

CASES

PAGE(S)

American Immigration Lawyers Ass’n v. Reno, 199 F.3d 1352 (D.C. Cir. 2000) ................................................................................................ 39

Amnesty Int'l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011), rev’d, 133 S. Ct. 1138 (2013) .................................................... 11

Ashcroft v. Iqbal, 556 U.S. 662 (2009)........................................................................................................... passim

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)........................................................................................................... passim

Blum v. Yaretsky, 457 U.S. 991 (1982).................................................................................................................. 23

Burke v. City of Charleston, 139 F.3d 401 (4th Cir. 1998) .............................................................................................. 14, 15

California Bankers Ass’n v. Schultz, 416 U.S. 21 (1974).................................................................................................................... 39

[Caption Redacted], 2011 WL 10945618 (F.I.S.C. Oct. 3, 2011) ....................................................................... 19, 45

[Caption Redacted], 2011 WL 10947772 (F.I.S.C. Nov. 30, 2011) .......................................................................... 19

Carey v. Population Servs. Int’l , 431 U.S. 678 (1979).................................................................................................................. 39

Clapper v. Amnesty Int'l, USA, 133 S. Ct. 1138 (2013) ....................................................................................................... passim

David v. Alphin, 704 F.3d 327 (4th Cir. 2013) .............................................................................................. 14, 34

Doe v. Va. Dept. of St. Police, 713 F.3d 745 (4th Cir. 2013) ........................................................................................ 15, 16, 37

Fenstermaker v. Bush, 2007 WL 1705068 (S.D.N.Y. June 12, 2007) .......................................................................... 39

iii

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PAGE(S)
Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (4th Cir. 2002) .............................................................................................. 15, 38
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs., 528 U.S. 167 (2000).................................................................................................................. 23
Jewel v. NSA, 2015 WL 545925 (N.D. Cal. Feb. 10, 2015) .................................................................. 4, 32, 40
Katz v. United States, 389 U.S. 347 (1967).................................................................................................................. 36
Kowalski v. Tesmer, 543 U.S. 125 (2004)...................................................................................................... 15, 37, 38
Laird v. Tatum, 408 US. 1 (1972)....................................................................................................................... 50
Lewis v. Casey, 518 U.S. 343 (1996).................................................................................................................. 23
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)............................................................................................................ 15, 23
Maryland v. Macon, 472 U.S. 463 (1985).................................................................................................................. 36
Miller v. Albright, 523 U.S. 420, 449 (1998).......................................................................................................... 40
Murphy-Taylor v. Hofmann, 968 F. Supp. 2d 693 (D. Md. 2013) .......................................................................................... 19
Rakas v. Illinois, 439 U.S. 128 (1978).................................................................................................................. 39
In re Motion for Release of Court Records, 526 F. Supp. 2d 484 (F.I.S.C. 2007) ........................................................................................... 5
Shenandoah Valley Network v. Capka, 669 F.3d 194 (4th Cir. 2012) .................................................................................................... 15
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976).................................................................................................................... 23
iv

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PAGE(S)
Singleton v. Wulff, 428 U.S. 106 (1976).................................................................................................................. 39
Southern Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175 (4th Cir. 2013)................................................................. 20, 43
Stephens v. City of Albermarle, Virginia, 524 F.3d 485 (4th Cir. 2008) .............................................................................................. 15, 17
Summers v. Earth Island, Inst., 555 U.S. 488 (2009)........................................................................................................... passim
United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544 (1996).................................................................................................................. 43
United States v. Baalerud, 2015 WL 1349821 (W.D.N.C. Mar. 25, 2015)......................................................................... 36
United States v. Hasbajrami, 1:11-cr-00623 (E.D.NY.), ECF No. 65 (Feb. 24, 2014) ........................................................... 46
United States v. Moalin, , 2013 WL 6079518 (S.D. Cal. Nov. 18, 2013) .......................................................................... 47
Unites States v. Mohamud, 2014 WL 2866749 (June 24, 2014) ................................................................................... 39, 46
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).................................................................................................................. 39
United States ex rel. Oberg v. Pennsylvania Higher Educ. Assistance Agency, 745 F.3d 131 (4th Cir. 2014) .................................................................................................... 18
Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982)................................................................... 14, 16, 22
Velasco v. Gov't of Indonesia, 370 F.3d 392 (4th Cir.2004) ..................................................................................................... 19
Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527 (4th Cir. 2013) .................................................................................................... 14
v

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PAGE(S) Warth v. Seldin,
422 U.S. 490 (1975)............................................................................................................ 15, 16 Zander v. United States,
786 F. Supp. 2d 880 (D. Md. 2011) .................................................................................... 14, 34
STATUTES 50 U.S.C. § 1801.................................................................................................................... passim 50 U.S.C. § 1803............................................................................................................................. 5 50 U.S.C. § 1804............................................................................................................................. 5 50 U.S.C. § 1805............................................................................................................................. 5 50 U.S.C. § 1881a ............................................................................................................. 7, 8, 9, 41 The FISA Amendments Act of 2008 (“FAA”),
Pub. L. No. 110-261 (2008) ............................................................................................... passim
LEGISLATIVE MATERIALS Executive Order 12333, 46 Fed. Reg. 59941 (Dec. 4, 1981),
reprinted as amended, 50 U.S.C. § 3001 .............................................................................. 6, 42 H.R. Rep. No. 645(II), 112th Cong., 2d Sess. (2012)................................................................... 10 H.R. Rep. No. 95-1283(I), 95th Cong., 2d Sess. (1978) ................................................................ 6 Modernization of the FISA: Hearing before the S. Select Comm. on Intel.,
110th Cong., 1st Sess. (2007) ................................................................................................ 6, 7 S. Rep. No. 110-209 (2007) ........................................................................................................... 6 S. Rep. No. 209, 110th Cong., 1st Sess. (2007) ............................................................................. 6 S. Rep. No. 174, 112th Cong., 2d Sess. (2012) ............................................................................ 10 S. Rep. No. 604, 95th Cong., 1st Sess. (1977)............................................................................ 4, 5 S. Rep. No. 701, 95th Cong., 2d Sess. (1978) ............................................................................ 5, 6
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INTRODUCTION One of the greatest challenges the United States faces in combating international terrorism and other potentially catastrophic threats to the safety and welfare of our Nation is identifying terrorist operatives and networks, and other foreign dangers. The Government’s exploitation of our foreign enemies’ communications is a critical tool in this effort. Plaintiffs in this case ask the Court to invalidate and enjoin a uniquely valuable means by which the National Security Agency (“NSA”), acting under the authority and oversight of the Foreign Intelligence Surveillance Court (“FISC”), gathers communications by and among our foreign adversaries in order to detect and thwart peril to our Nation and its people. Plaintiffs seek to contest the legality of NSA “Upstream” surveillance, a program under which the NSA targets certain non-U.S. persons reasonably believed to be located outside the United States in order to acquire foreign-intelligence information. The NSA targets these individuals by acquiring online communications as they transit the Internet “backbone” networks of U.S. telecommunications service providers. Upstream surveillance is conducted under authority of Section 702 of the Foreign Intelligence Surveillance Act (“FISA”), pursuant to targeting and minimization procedures (procedures to minimize the acquisition, retention, and dissemination of U.S.-person information) that must be approved by the FISC as consistent with statutory requirements and the Constitution. Upstream’s unique capabilities and contributions to national security have been recognized by all three branches of the Federal Government. Plaintiffs nevertheless maintain that Upstream collection exceeds the Government’s authority under Section 702, violates the Constitution, and should be permanently enjoined. These claims should be dismissed, because Plaintiffs have not established their standing to assert them. Although the technical operational details of Upstream surveillance remain classified, Plaintiffs hypothesize that it involves an initial stage at which the NSA intercepts, copies, and

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TABLE OF AUTHORITIES

CASES

PAGE(S)

American Immigration Lawyers Ass’n v. Reno, 199 F.3d 1352 (D.C. Cir. 2000) ................................................................................................ 39

Amnesty Int'l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011), rev’d, 133 S. Ct. 1138 (2013) .................................................... 11

Ashcroft v. Iqbal, 556 U.S. 662 (2009)........................................................................................................... passim

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)........................................................................................................... passim

Blum v. Yaretsky, 457 U.S. 991 (1982).................................................................................................................. 23

Burke v. City of Charleston, 139 F.3d 401 (4th Cir. 1998) .............................................................................................. 14, 15

California Bankers Ass’n v. Schultz, 416 U.S. 21 (1974).................................................................................................................... 39

[Caption Redacted], 2011 WL 10945618 (F.I.S.C. Oct. 3, 2011) ....................................................................... 19, 45

[Caption Redacted], 2011 WL 10947772 (F.I.S.C. Nov. 30, 2011) .......................................................................... 19

Carey v. Population Servs. Int’l , 431 U.S. 678 (1979).................................................................................................................. 39

Clapper v. Amnesty Int'l, USA, 133 S. Ct. 1138 (2013) ....................................................................................................... passim

David v. Alphin, 704 F.3d 327 (4th Cir. 2013) .............................................................................................. 14, 34

Doe v. Va. Dept. of St. Police, 713 F.3d 745 (4th Cir. 2013) ........................................................................................ 15, 16, 37

Fenstermaker v. Bush, 2007 WL 1705068 (S.D.N.Y. June 12, 2007) .......................................................................... 39

iii

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PAGE(S)
Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (4th Cir. 2002) .............................................................................................. 15, 38
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs., 528 U.S. 167 (2000).................................................................................................................. 23
Jewel v. NSA, 2015 WL 545925 (N.D. Cal. Feb. 10, 2015) .................................................................. 4, 32, 40
Katz v. United States, 389 U.S. 347 (1967).................................................................................................................. 36
Kowalski v. Tesmer, 543 U.S. 125 (2004)...................................................................................................... 15, 37, 38
Laird v. Tatum, 408 US. 1 (1972)....................................................................................................................... 50
Lewis v. Casey, 518 U.S. 343 (1996).................................................................................................................. 23
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)............................................................................................................ 15, 23
Maryland v. Macon, 472 U.S. 463 (1985).................................................................................................................. 36
Miller v. Albright, 523 U.S. 420, 449 (1998).......................................................................................................... 40
Murphy-Taylor v. Hofmann, 968 F. Supp. 2d 693 (D. Md. 2013) .......................................................................................... 19
Rakas v. Illinois, 439 U.S. 128 (1978).................................................................................................................. 39
In re Motion for Release of Court Records, 526 F. Supp. 2d 484 (F.I.S.C. 2007) ........................................................................................... 5
Shenandoah Valley Network v. Capka, 669 F.3d 194 (4th Cir. 2012) .................................................................................................... 15
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976).................................................................................................................... 23
iv

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PAGE(S)
Singleton v. Wulff, 428 U.S. 106 (1976).................................................................................................................. 39
Southern Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175 (4th Cir. 2013)................................................................. 20, 43
Stephens v. City of Albermarle, Virginia, 524 F.3d 485 (4th Cir. 2008) .............................................................................................. 15, 17
Summers v. Earth Island, Inst., 555 U.S. 488 (2009)........................................................................................................... passim
United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544 (1996).................................................................................................................. 43
United States v. Baalerud, 2015 WL 1349821 (W.D.N.C. Mar. 25, 2015)......................................................................... 36
United States v. Hasbajrami, 1:11-cr-00623 (E.D.NY.), ECF No. 65 (Feb. 24, 2014) ........................................................... 46
United States v. Moalin, , 2013 WL 6079518 (S.D. Cal. Nov. 18, 2013) .......................................................................... 47
Unites States v. Mohamud, 2014 WL 2866749 (June 24, 2014) ................................................................................... 39, 46
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).................................................................................................................. 39
United States ex rel. Oberg v. Pennsylvania Higher Educ. Assistance Agency, 745 F.3d 131 (4th Cir. 2014) .................................................................................................... 18
Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982)................................................................... 14, 16, 22
Velasco v. Gov't of Indonesia, 370 F.3d 392 (4th Cir.2004) ..................................................................................................... 19
Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527 (4th Cir. 2013) .................................................................................................... 14
v

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PAGE(S) Warth v. Seldin,
422 U.S. 490 (1975)............................................................................................................ 15, 16 Zander v. United States,
786 F. Supp. 2d 880 (D. Md. 2011) .................................................................................... 14, 34
STATUTES 50 U.S.C. § 1801.................................................................................................................... passim 50 U.S.C. § 1803............................................................................................................................. 5 50 U.S.C. § 1804............................................................................................................................. 5 50 U.S.C. § 1805............................................................................................................................. 5 50 U.S.C. § 1881a ............................................................................................................. 7, 8, 9, 41 The FISA Amendments Act of 2008 (“FAA”),
Pub. L. No. 110-261 (2008) ............................................................................................... passim
LEGISLATIVE MATERIALS Executive Order 12333, 46 Fed. Reg. 59941 (Dec. 4, 1981),
reprinted as amended, 50 U.S.C. § 3001 .............................................................................. 6, 42 H.R. Rep. No. 645(II), 112th Cong., 2d Sess. (2012)................................................................... 10 H.R. Rep. No. 95-1283(I), 95th Cong., 2d Sess. (1978) ................................................................ 6 Modernization of the FISA: Hearing before the S. Select Comm. on Intel.,
110th Cong., 1st Sess. (2007) ................................................................................................ 6, 7 S. Rep. No. 110-209 (2007) ........................................................................................................... 6 S. Rep. No. 209, 110th Cong., 1st Sess. (2007) ............................................................................. 6 S. Rep. No. 174, 112th Cong., 2d Sess. (2012) ............................................................................ 10 S. Rep. No. 604, 95th Cong., 1st Sess. (1977)............................................................................ 4, 5 S. Rep. No. 701, 95th Cong., 2d Sess. (1978) ............................................................................ 5, 6
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reviews substantially all international online communications—including theirs—as they transit U.S. telecommunications networks, to identify communications containing selectors associated with the NSA’s surveillance targets. Plaintiffs allege that targeted communications, once identified, are retained in Government databases for analysis and dissemination of any foreignintelligence information they contain. They allege further that communications of theirs are substantially likely to be among those retained, read, and disseminated by the NSA. Plaintiffs maintain that Upstream surveillance invades their interest in the privacy of their online communications and violates their right to control the information they contain.
This case does not mark the first occasion on which litigants have sought to challenge alleged NSA surveillance activities conducted under Section 702. In Clapper v. Amnesty Int’l, USA, 133 S. Ct. 1138 (2013), various human rights, labor, and media organizations—six of which are also plaintiffs in this case—sought to mount a facial constitutional challenge to Section 702. They alleged that communications of theirs would likely be subject to Government surveillance, because they interacted and communicated with persons who were probable targets of surveillance under Section 702. Id. at 1145–46. The Supreme Court held, however, that these allegations were insufficient to confer standing, because it was “speculative whether the Government [would] imminently target communications to which [the plaintiffs] [we]re parties.” Id. at 1148. Rather, the Court held that the plaintiffs’ harm rested on a “speculative chain of possibilities,” including “[that] the Government [would] target the communications of non-U.S. persons with whom they communicate,” that the Government would succeed in intercepting those communications, and that the plaintiffs would “be parties to the particular communications the Government intercepts.” Id. at 1148–50. Amnesty International controls the disposition of this case, because Plaintiffs here have likewise made no well-pleaded, non-speculative allegations plausibly establishing that their online communications have been intercepted, copied
2

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or reviewed for selectors at the alleged initial stages of Upstream collection, or that communications of theirs have been retained, read, and disseminated by the NSA.
Plaintiffs’ allegation that their communications are intercepted, copied, and reviewed is predicated first on their conclusory assertion that the NSA intercepts, copies, and reviews for selectors “substantially all” international online communications carried in the U.S. But the Amended Complaint contains no factual enhancement to support this allegation, and under the plausibility standard of pleading announced in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), it is not entitled to the assumption of truth.
Plaintiffs also allege that they “collectively” engage in more than a trillion online communications each year, and that their “sheer volume” and global distribution make it “virtually certain” that the NSA intercepts “at least one of the Plaintiffs’ communications.” But the Amended Complaint makes clear that the overwhelming number of these communications are communications involving Plaintiff Wikimedia Foundation (“Wikimedia”) alone—the online transmissions of information that occur when individual Internet users visit Wikimedia websites. The other Plaintiffs cannot establish their standing based on an alleged certainty that Wikimedia’s communications are intercepted and reviewed for selectors by the NSA.
Furthermore, Wikimedia’s allegations regarding the volume and distribution of its websites’ communications with Internet users fail to establish even its own standing. In an era when yearly Internet traffic is measured in tens, even hundreds of trillions of communications, Wikimedia’s alleged “extraordinarily high volume of internet communications” is merely a drop in the torrent, and the claimed “99.9999999999%” certainty that the NSA intercepts its communications is statistically unsupported (indeed, contradicted) by Plaintiffs’ own allegations. The related claim that the global distribution of Wikimedia’s communications also makes interception by the NSA a virtual certainty, rests on erroneous assumptions about Internet
3

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technology, as well as speculation about technical details of Upstream collection that remain classified, and that Plaintiffs could not attempt to confirm without implicating potential state secrets. See Jewel v. NSA, 2015 WL 545925 (N.D. Cal. Feb. 10, 2015). Moreover, Wikimedia identifies no privacy interest of its own in these communications; rather, it asserts that NSA surveillance invades the privacy of anonymous Internet users who view, download, or contribute information displayed on its public websites. Wikimedia lacks standing, however, to assert the legal rights and interests of these unidentified third parties.
Plaintiffs’ further allegation, that it is “substantially likely” the NSA has also retained, read, and disseminated communications of theirs, likewise fails for two reasons. First, they have not plausibly alleged the interception of their communications to begin with. Second, claims that their communications are likely retained by the NSA because they communicate with probable targets of NSA surveillance echo the very factual claims that Amnesty International held were legally insufficient to establish Article III injury. In short, Plaintiffs’ allegations rest on speculation concerning the focus and reach of Government intelligence-gathering programs, which Amnesty International teaches is insufficient to demonstrate standing.
For these reasons, discussed more fully below, Plaintiffs have not plausibly alleged facts establishing, with the genuine certainty required by Amnesty International, that they are suffering injury attributable to Upstream surveillance. Therefore they lack standing to contest the legality of this critical national-security program, and the Amended Complaint should be dismissed.
BACKGROUND The Foreign Intelligence Surveillance Act Congress enacted FISA in 1978 “to regulate the use of electronic surveillance within the United States for foreign intelligence purposes.” S. Rep. No. 604, 95th Cong., 1st Sess., at 7 (1977). The statute was a response to revelations of unlawful Government surveillance directed
4

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at specific U.S. citizens and political organizations. Id. at 7–8. FISA provides a check against such abuses by placing certain types of foreign-intelligence surveillance under FISC oversight.1
Before the Government may conduct “electronic surveillance,” as defined in FISA, to
obtain foreign-intelligence information, the statute generally requires the Government to obtain an order from a FISC judge. See 50 U.S.C. §§ 1803(a), 1804(a), 1805.2 To obtain such an order,
the Government must establish “probable cause to believe that . . . the target of the electronic
surveillance is a foreign power or an agent of a foreign power,” and that “each of the facilities or
places at which the surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.” Id. § 1805(a)(2).3
When Congress enacted FISA in 1978, it focused on the domestic collection of foreign-
intelligence by limiting the definition of “electronic surveillance” regulated by FISA to the
acquisition of communications to or from (or other information about) persons located in the
United States. Id. § 1801(f). Congress intentionally excluded from FISA the vast majority of
Government surveillance then conducted outside the U.S., even if it targeted U.S. persons abroad
or incidentally acquired communications to or from U.S. persons or persons located in the U.S.
See S. Rep. No. 701, 95th Cong., 2d Sess., at 7, 34–35, 71 (1978) (the Act “does not deal with
1 The FISC is an Article III court comprised of 11 U.S. district judges, appointed by the Chief Justice of the United States, with authority to consider applications for and grant orders authorizing electronic surveillance and other forms of Government intelligence-gathering regulated by FISA. See 50 U.S.C. § 1803(a); In re Motion for Release of Court Records, 526 F. Supp. 2d 484, 486 (F.I.S.C. 2007).
2 Generally speaking, “foreign intelligence information” as defined under FISA includes information relating to international terrorism and terrorist attacks, the international proliferation of weapons of mass destruction, and clandestine intelligence activities, conducted by foreign powers, as well as other information regarding foreign powers that relates to the national security or the foreign affairs of the United States. Id. § 1801(e).
3 The statute defines “foreign power” and an “agent of a foreign power” to include nonU.S. persons and foreign entities “engaged in international terrorism or activities in preparation therefor,” and those “engaged in the international proliferation of weapons of mass destruction.” 50 U.S.C. § 1801(a)(4), (7); id. § 1801(b)(1)(C)–(E).
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international signals intelligence activities” engaged in by the NSA or “electronic surveillance conducted” overseas); H.R. Rep. No. 1283(I), 95th Cong., 2d Sess., at 50–51 (1978).4
The FISA Amendments Act of 2008 In 2006, Congress began consideration of amendments to modernize FISA, because of changes in communications technology and the President’s acknowledgment of the (now terminated) Terrorist Surveillance Program. S. Rep. No. 209, 110th Cong., 1st Sess., at 2–5 (2007); see Amnesty Int’l, 133 S. Ct. at 1143–44. As Congress concluded, FISA’s definition of “electronic surveillance” was “tie[d] . . . to a snapshot of outdated technology.” Modernization of the FISA: Hearing before the S. Select Comm. on Intel., 110th Cong., 1st Sess., at 19 (2007) (“FISA Modernization Hrg.”). In 1978, Congress excluded international radio communications from FISA’s definition of “electronic surveillance” to allow the Government to monitor international radio traffic outside FISA’s confines, even when intercepted in the United States.5 But whereas international communications were predominantly carried by radio or satellite when FISA was enacted, by the early 2000s they were predominantly carried by fiber-optic cables, and potentially qualified as wire communications subject to FISA when intercepted in the U.S. Thus, many international communications that generally would have fallen beyond FISA’s ambit in 1978 were now potentially included, due merely to a change in technology. Id. at 18–19. Further, with respect to wire or other non-radio communications, FISA’s definition of electronic surveillance “place[d] a premium on the location of the collection”: intercepts conducted inside the United States were covered, while those conducted outside the U.S.
4 Electronic surveillance conducted by the Intelligence Community outside the United States is generally governed by Executive Order No. 12333, 46 Fed. Reg. 59941 (Dec. 4, 1981), reprinted as amended, 50 U.S.C. § 3001 note.
5 Compare 50 U.S.C. § 1801(f)(2) (defining wire communication as “electronic surveillance” if, inter alia, one party is in the United States), with id. § 1801(f)(3) (defining radio communication as “electronic surveillance” only if all intended parties are in the United States).
6

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generally were not. Id. at 19; 50 U.S.C. § 1801(f)(2). Technological advances had rendered this distinction outmoded too. “Legislators in 1978” had not predicted “an integrated global communications grid” on which a communication “can transit the world even if the two people communicating are only located a few miles apart.” FISA Modernization Hrg. at 19. Due to these technological changes, the Government had to expend significant time and resources seeking FISC approval for surveillance that was originally intended to be outside FISA’s scope, id. at 18, thus suffering delays that resulted in the loss of important foreign-intelligence information, see Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the FISA (“PCLOB Report”) (Exh. 1, hereto). The fix needed for this problem was a “technology-neutral” framework for surveillance of foreign targets, focused not on “how a communication travels or where it is intercepted,” but instead on “who is the subject of the surveillance, which really is the critical issue for civil liberties purposes.” FISA Modernization Hrg. at 46.
Congress ultimately addressed this problem through the FISA Amendments Act of 2008 (“FAA”), Pub. L. No. 110-261 (2008). The FAA added a new Title VII to FISA to establish procedures and requirements for the authorization of surveillance targeting persons located outside the United States. See id. § 101(a); 50 U.S.C. §§ 1881a-1881g. FISA section 702, 50 U.S.C. § 1881a, the provision implicated in this case, “supplements pre-existing FISA authority by creating a new framework under which the Government may seek the FISC’s authorization of certain foreign intelligence surveillance targeting . . . non-U.S. persons located abroad,” Amnesty Int’l, 133 S. Ct. at 1144, without regard to the location of the collection. 50 U.S.C. § 1881a(a), (b). Section 702 generally provides that upon the FISC’s approval of a “certification” submitted by the Government, the Attorney General and the Director of National Intelligence may jointly authorize, for up to one year, the “targeting of [non-U.S.] persons
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reasonably believed to be located outside the United States to acquire foreign intelligence information.” 50 U.S.C. § 1881a(a), (b), (g). The statute expressly prohibits, however, the intentional targeting of any person known at the time of acquisition to be in the United States, or any U.S. person reasonably believed to be located outside the United States. Id. § 1881a(b). The acquisition must also be “conducted in a manner consistent with the [F]ourth [A]mendment.” Id.
To meet the statutory requirements for FISC approval, the Government’s certification must attest, inter alia, that a significant purpose of the acquisition is to obtain foreignintelligence information either from or with the assistance of an electronic-communicationservice provider. Id. § 1881a(g)(2)(A)(v), (vi). The Government must also certify that the acquisition will be conducted in accordance with targeting and minimization procedures meeting the statute’s requirements. Id. § 1881a(d), (e), (g)(2)(B). Before approving a certification, the FISC must find that the Government’s targeting procedures are reasonably designed (i) to ensure that acquisition is limited to targeting persons reasonably believed to be located outside the United States, and (ii) to prevent the intentional acquisition of wholly domestic communications. See id. § 1881a(d)(1), (i)(2)(B). The FISC must also find that the Government’s minimization procedures are “reasonably designed . . . to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreignintelligence information.” Id. § 1881a(i)(2)(C); see also id. §§ 1801(h), 1821(4). The FISC must also conclude that both the targeting and minimization procedures “are consistent with . . . the [F]ourth [A]mendment.” Id. § 1881a(i)(3)(A). The Government’s exercise of its authority under Section 702 and its compliance with statutory requirements are also subject to regular interagency reviews and assessments, and reporting to both the FISC and Congress. Id. § 1881a(l).
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Upstream Collection Under Section 702 As the Plaintiffs observe, the collection of communications under Section 702 has been publicly described, in general terms, in a number of public Government reports and declassified FISC opinions. See First Amended Complaint for Declaratory and Injunctive Relief (ECF No. 70) (the “Amended Complaint,” or “Am. Compl.”) ¶ 37. Upon FISC approval of a certification under Section 702, NSA analysts identify non-U.S. persons located outside the United States who are reasonably believed to possess or receive, or are likely to communicate, foreignintelligence information designated in the certification. Such a person might be an individual who belongs to a foreign terrorist organization or facilitates its activities. See Liberty and Security in a Changing World: Report and Recommendations of the President’s Review Group on Intelligence and Communications Technologies, at 136 (Dec. 12, 2013) (“PRG Report”) (Exh. 2, hereto). Once the NSA has designated such a person as a target, it then attempts to identify a specific means by which the target communicates, such as an e-mail address or a telephone number, which is referred to as a “selector.” Selectors may not be key words or the names of targeted individuals, but must be specific communications identifiers. Id.; PCLOB Report at 32–33, 36. To effect acquisition on appropriately identified selectors, the Government may issue a Section 702 “directive” to an electronic-communication-service provider in the United States requiring the provider to assist the Government in acquiring communications involving those selectors. 50 U.S.C. § 1881a(h); PCLOB Report at 32–33. The NSA acquires communications associated with tasked selectors using two methods, known respectively as “Upstream” and “PRISM.” See PCLOB Report at 33. Under PRISM collection, the Government notifies U.S.-based Internet service providers (“ISPs”) of selectors identified for tasking, and the providers furnish the NSA with electronic communications to or from these selectors. See id. (Plaintiffs do not challenge PRISM collection in this case. See
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Am. Compl. ¶ 40.) In contrast, Upstream involves the collection of communications as they transit the Internet “backbone” networks of U.S. telecommunications-service providers. See PCLOB Report at 35; PRG Report at 141 n.137. Tasked selectors are sent to providers operating these networks, whereupon they must assist the Government in acquiring communications to, from, or otherwise containing these selectors while they transit the “backbone.” PCLOB Report at 36–37. Communications are filtered for the purpose of eliminating wholly domestic communications, and then scanned to capture communications containing tasked selectors. Id. at 37. Communications passing both these screens are ingested into NSA databases. Id. Further operational details regarding the mechanics of Upstream collection remain classified.
Upstream collection has been critical to Government efforts to combat international terrorism and other threats to the United States and its interests. Upstream is a “unique[ly] valu[able]” component of the Section 702 intelligence program, which “is critically important to maintaining our national security.” PCLOB Report at 124; H.R. Rep. No. 645(II), 112th Cong., 2d Sess., at 3, 5 (2012); S. Rep. No. 174, 112th Cong., 2d Sess., at 2 (2012). The Section 702 program has “helped the United States learn more about the membership, leadership structure, priorities and plans of international terrorist organizations,” “enabled the discovery of previously unknown terrorist operatives” and disruption “of previously unknown terrorist plots,” and is also used to counter the proliferation of weapons of mass destruction. PCLOB Report at 107, 110.
Plaintiffs’ Allegations Plaintiffs are nine self-described “educational, legal, human rights, and media organizations” that allegedly “routinely engage in sensitive, confidential, and privileged internet communications with non-U.S. persons located abroad.” Am. Compl. ¶¶ 2, 55, 78, 88, 93,102, 112-13, 130-31, 135-36, 140-41, 145-46, 150-51, 155-56, 160-61. Plaintiffs allege that they “collectively” engage in “more than a trillion” such communications “over the [I]nternet each
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year,” with individuals “in virtually every country on [E]arth,” id. ¶¶ 2, 58, 60, 88. Plaintiffs maintain that “[t]he ability to exchange information in confidence, free from warrantless government monitoring, is essential to [their] work,” and that Upstream collection “violates [their] privacy and undermines their ability to carry out activities crucial to their missions.” Id. ¶¶ 2, 70, 76, 89, 108-10, 118, 129, 134, 139, 144, 149, 154, 159, 164. Plaintiffs sue on behalf of themselves and, purportedly, their staffs. Id. ¶¶ 6–14. Plaintiff National Association of Criminal Defense Lawyers (“NACDL”) also purports to sue on behalf of its members. Id. ¶ 7.6
According to Plaintiffs, the NSA conducts Upstream surveillance “by connecting surveillance devices to multiple major [I]nternet cables, switches, and routers on the [I]nternet backbone,” the international submarine and high-capacity terrestrial cables “that carry [I]nternet communications into and out of the United States,” id. ¶¶ 46, 47, 60. Plaintiffs allege that Upstream “is intended to enable the comprehensive monitoring of international [I]nternet traffic,” allowing the NSA to “cop[y] and review[ ] all international e-mails and other ‘textbased’ communications.” Id. ¶ 48. Plaintiffs describe Upstream as encompassing four processes: (1) copying, during which “the NSA makes a copy of substantially all international text-based communications”; (2) filtering, during which “[t]he NSA attempts to filter out and discard some wholly domestic communications from the stream of internet data”; (3) content review of the copied communications—“including their full content—for instances of [the NSA’s] search terms [selectors]”; and (4) retention by the NSA of “all communications that contain selectors associated with its targets, as well as those that happened to be bundled with them in transit,” for further review and analysis and dissemination of the results. Id. ¶ 49.
6 Six of the Plaintiffs, Human Rights Watch, Amnesty International USA, the PEN American Center, the Global Fund for Women, the Nation Magazine, and the Washington Office on Latin America, were also plaintiffs in Amnesty International. See Compl. ¶¶ 8–12, 14; Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011), rev’d, 133 S. Ct. 1138 (2013).
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Based on the allegation that Upstream surveillance involves “intercepting, copying, and reviewing substantially all international text-based communications . . . as they transit telecommunications networks inside the United States,” Plaintiffs assert that the NSA intercepts, copies, and reviews for selectors the international online communications in which their staffs (or, in NACDL’s case, its members) engage in furtherance of their organizational (or professional) missions. Am. Compl. ¶¶ 56, 103, 113-14, 131-32, 136-37, 141-42, 146-47, 15152, 156-57, 161-62; see also id. ¶¶ 1, 38, 40, 48, 49, 50. Wikimedia also alleges that the NSA intercepts, copies, and reviews two other categories of “Wikimedia[’s] communications,” specifically: (1) the allegedly more than one trillion annual “communications” that occur when individuals, “located in virtually every country on [E]arth,” view Wikimedia websites to “read and contribute to [them] and [to] use [them] to interact with each other”; and (2) Wikimedia’s “logs” of online requests by such users to view its webpages. Id. ¶¶ 81, 86, 88, 93.
According to Plaintiffs, their claim that the NSA intercepts, copies, and reviews their communications is also “well-founded,” Am. Compl. ¶ 57, because of (1) the “sheer volume” of their international online communications, id. ¶ 58; (2) the “geographic distribution” of their communications “across the globe,” id. ¶¶ 60-61; (3) the manner in which the NSA “must be” conducting Upstream surveillance to “reliably obtain” all communications to, from, or about its targets, id. ¶¶ 62-64; and (4) the Government’s alleged “strong incentive” to intercept communications at as many Internet backbone “chokepoints” as possible, id. ¶ 65.
Plaintiffs maintain that the alleged interception, copying and selector review of their communications invades their privacy and the privacy of their staffs, Wikimedia’s users, and NACDL’s members, and infringes on “their right to control [their] communications and the information they contain.” Am. Compl. ¶¶ 103, 114, 132, 137, 142, 147, 152, 157, 162.
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In addition to the claimed interception, copying, and selector review of their communications, Plaintiffs also allege that there is a “substantial likelihood” that their intercepted communications (in the case of NACDL, its members’ communications) are “retained, read, and disseminated” by the NSA. Id. ¶ 71. The retention, analysis, and dissemination of their communications is likely, Plaintiffs maintain, because they allegedly communicate online with people “whom the [G]overnment is likely to target when conducting Upstream surveillance,” and a “significant amount of the information” they exchange with those persons constitutes “foreign intelligence information” within the meaning of FISA. Id. ¶¶ 73–74; see also id. ¶¶ 104-07, 115, 124-27, 133, 138, 143, 148, 153, 158, 163. Plaintiffs contend the alleged “retention, reading, and dissemination of Plaintiffs’ communications is a further, discrete violation of [their] reasonable expectation of privacy in those communications,” and of their “right to control those communications and the information they reveal and contain.” Id. ¶ 72.
Plaintiffs further allege that Upstream surveillance “undermines their ability to carry out activities crucial to their missions,” first by forcing them “to take burdensome and sometimes costly measures to minimize the chance that the confidentiality of their sensitive information will be compromised,” and second by “reduc[ing] the likelihood that . . . individuals will share sensitive information with [them].” Am. Compl. ¶¶ 2, 75, 76; see also id. ¶¶ 108, 109, 118, 128, 129, 134, 139, 144, 149, 154, 159, 164. Plaintiffs contend that Upstream surveillance exceeds the Government’s authority under Section 702 and violates the First and Fourth Amendments and Article III of the Constitution. Id. ¶¶ 165–168. By way of relief, Plaintiffs seek a declaration that Upstream surveillance is unlawful, an injunction prohibiting Upstream surveillance of their communications, and a purge from Government databases of any of their communications acquired through Upstream surveillance. Id. ¶ 3; id. at 55-56 (prayer for relief).
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ARGUMENT I. LEGAL STANDARDS
A. Pleading Standards Under Twombly and Iqbal The Amended Complaint must be dismissed for lack of subject-matter jurisdiction, because it contains no well-pleaded allegations that plausibly establish Plaintiffs’ standing. To withstand a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 543 (4th Cir. 2013). Mere “labels and conclusions” and “naked assertion[s] devoid of further factual enhancement” are not sufficient. Iqbal, 556 U.S. at 678. Rather, a court must disregard “pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth,” and determine whether the remaining “well-pleaded factual allegations . . . plausibly give rise to an entitlement to relief.” Id. at 679; see id. at 680– 81; Vitol, 708 F.3d at 543. The plausibility standard of pleading applies to both the elements of a claim and the plaintiff’s allegations of standing. See David v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013). A court will find that a complaint plausibly alleges standing only if the “wellpleaded allegations” allow it to “draw the reasonable inference”—and do not merely give rise to a “sheer possibility,” Iqbal, 556 U.S. at 678–79—that the plaintiff has standing. David, 704 F.3d at 333; Zander v. United States, 786 F. Supp. 2d 880, 883 (D. Md. 2011). B. The Requirements of Standing “The judicial power of the United States . . . is not an unconditioned authority to determine the [validity] of legislative or executive acts,” but is limited by Article III of the Constitution “to the resolution of ‘cases’ and ‘controversies.’” Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982); Burke v.
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City of Charleston, 139 F.3d 401, 404 (4th Cir. 1998). A demonstration by plaintiffs of their standing to sue “is an essential and unchanging part of the case-or-controversy requirement,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), and as such is a threshold jurisdictional requirement, “determining the power of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498–99 (1975). The Supreme Court emphasized in Amnesty International that the standing inquiry must be “especially rigorous when reaching the merits of the dispute would force [a court] to decide whether an action taken by one of the other two branches of the Federal Government,” particularly “in the fields of intelligence gathering and foreign affairs,” “was unconstitutional.” 133 S. Ct. at 1147 (citations omitted).
To establish Article III standing, Plaintiffs must seek relief from an injury that is “‘concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’” Id. As “[t]he part[ies] invoking federal court jurisdiction,” Plaintiffs “bear[ ] the burden of establishing these elements.” Doe v. Va. Dep’t of State Police, 713 F.3d 745, 753 (4th Cir. 2013). The alleged injury must be “real and immediate,” not “conjectural or hypothetical,” Shenandoah Valley Network v. Capka, 669 F.3d 194, 202 (4th Cir. 2012) (citations omitted). Speculative claims of injury will not support Article III standing. Amnesty Int’l, 133 S. Ct. at 1150; see Stephens v. Cnty. of Albermarle, Va., 524 F.3d 485, 492– 93 (4th Cir. 2008).
In addition to “‘constitutional limitations on federal-court jurisdiction,’” the standing inquiry “involves . . . ‘prudential limitations on its exercise.’” Kowalski v. Tesmer, 543 U.S. 125, 128–29 (2004) (quoting Warth, 422 U.S. at 498); Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 214–15 (4th Cir. 2002). Among these prudential limitations is “the rule that a party ‘generally must assert [its] own legal rights and interests, and cannot rest [its] claim to relief on the legal rights or interests of third parties.’” Tesmer, 543 U.S. at 129 (quoting Warth,
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422 U.S. at 499); Valley Forge, 454 U.S. at 474 (same); Doe, 713 F.3d at 753 (“[T]he Supreme Court has explained that prudential standing encompasses the general prohibition on a litigant’s raising another person’s legal rights.”) (citation omitted).
Plaintiffs’ assertions of injury are essentially two-fold. They first claim injury based on the alleged “interception, copying, and review” of their communications during the Upstream process, and second claim an additional discrete injury based on the alleged “substantial likelihood” that communications of theirs are “retained, read, and disseminated” by the NSA. Am. Compl. ¶¶ 70–71. The first of these claims of injury rests on the wholly conclusory assertion that the NSA intercepts substantially all international online communications transiting the United States, alleged statistical “certainties” based on hypothetical premises, and other stated and unstated assumptions about the manner in which the NSA “must be” conducting Upstream surveillance, for which the Amended Complaint offers no supporting factual allegations. It amounts therefore, to nothing more than a speculative claim of injury that Amnesty International teaches will not support Article III standing. Plaintiffs’ second claim of injury simply repeats the very allegations that the Supreme Court held were legally insufficient in Amnesty International. For these and the further reasons discussed below, Plaintiffs have not plausibly alleged injuries to their own legal rights that are fairly traceable to Upstream surveillance. Their claims challenging Upstream surveillance must therefore be dismissed. II. PLAINTIFFS HAVE NOT PLAUSIBLY ALLEGED THAT THEY HAVE BEEN
INJURED BY THE INTERCEPTION, COPYING, AND REVIEW OF THEIR ONLINE COMMUNICATIONS IN THE UPSTREAM COLLECTION PROCESS. A. Plaintiffs Have Not Plausibly Alleged That Upstream Collection Involves
the Interception, Copying, and Selector Review of Substantially All International Online Communications Transiting the United States. Plaintiffs’ claims that they are injured through alleged NSA interception, copying, and selector review of online communications are insufficient to establish the requisite Article III
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injury, because they have not plausibly alleged that any of their online communications are intercepted, copied, or reviewed during the Upstream process. As discussed supra, at 11, Plaintiffs allege that Upstream collection involves initial interception and copying of online communications to review them for selectors (such as e-mail addresses) associated with targets of NSA surveillance; communications found to contain such selectors are thereafter retained in NSA databases for further analysis. Am. Compl. ¶¶ 42–43. The assertion that their communications are intercepted, copied and reviewed is first predicated on the “bald allegation[ ],” Iqbal, 556 U.S. at 681, that the NSA intercepts, copies, and reviews “substantially all international [online] communications . . . as they transit telecommunications networks inside the United States.” Id. ¶¶ 1, 38, 48-50, 56, 103, 114, 132, 137, 142, 147, 152, 157, 162.
But this “bare assertion[ ]” is unaccompanied by “factual matter” that raises it “above the speculative level,” and as such it is neither entitled to the presumption of truth nor sufficient, therefore, to state a plausible claim of standing. Iqbal, 556 U.S. at 681; Twombly, 550 U.S. at 555. Plaintiffs, for example, cite no statements by Government officials acknowledging that Upstream involves the collection of all (or substantially all) international online communications transiting the United States. To the contrary, Upstream’s scope and the scale on which it operates remain classified. Thus, Plaintiffs can only speculate whether the NSA has ever intercepted, collected, or reviewed their communications for selectors in conducting Upstream surveillance. Amnesty International makes clear that injury so speculative and conjectural is insufficient to establish Article III standing, especially the standing of litigants who ask the courts to determine the constitutionality of the Government’s actions in the field of foreign intelligence. Amnesty Int’l, 133 S. Ct. at 1147–50; see also Stephens, 524 F.3d at 493.
The Amended Complaint refers to a number of public Government reports and recently declassified FISC opinions which, according to Plaintiffs, “indicate that FAA surveillance results
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in the wide-ranging and persistent interception of U.S. persons’ communications.” Am. Compl. ¶ 37. But a nebulous allegation that “FAA surveillance” is “wide-ranging” stops far short of plausibly establishing that Upstream surveillance involves the interception, copying, and review for selectors of all or even “substantially all,” id. ¶¶ 1, 48, international online communication carried on U.S. networks. Twombly, 550 U.S. at 556–57. This is especially so considering that Upstream, the only surveillance program challenged by Plaintiffs, is just one of the programs conducted under authority of the FAA. See supra, at 10; Am. Compl. ¶¶ 39–40.
The public documents alluded to by Plaintiffs fall short in the same ways. Plaintiffs refer to a report by the Office of the Director of National Intelligence (“ODNI”), which estimates that in 2014 the Intelligence Community relied on Section 702 to conduct surveillance of 92,707 persons, groups, or organizations. Am. Compl. ¶ 37; see ODNI, Statistical Transparency Report Regarding Use of National Security Authorities (April 22, 2015) (“ODNI Transparency Report”) (Exh. 3, hereto) at 1, 2.7 This figure lends no support to the allegation that Upstream collection involves the interception of all international online communications traversing U.S. providers’ networks. First, the report does not reveal how many of these 92,707 persons, groups, and organizations were targets of Upstream as opposed to PRISM surveillance. ODNI Transparency Report at 1. But even if all 92,707 were targets of Upstream collection (out of roughly three billion Internet users worldwide, see Declaration of Robert T. Lee8 (attached hereto) (“Lee
7 In ruling on a motion to dismiss, a court may “consider documents incorporated into the complaint by reference.” United States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014) (citation omitted).
8 Mr. Lee is a consultant “specializing in information security, incident response, and digital forensics.” Lee Decl. ¶ 1. With more than 15 years of experience in, inter alia, computer forensics, vulnerability, and intrusion detection/prevention,” Mr. Lee is currently the curriculum lead for digital forensic and incident response training at the SANS Institute. Id. Previously, he served in the U.S. Air Force in a unit focused on information warfare, and “led a team conducting computer crime investigations, incident response, and computer forensics.” Id. He
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Decl.”) ¶ 25)9 that says nothing about the scale on which Upstream collection is conducted to maintain surveillance on those targets. Thus it fails to raise the claim that the NSA intercepts, copies, and reviews for selectors all international online communications sent or received in the U.S. “above the speculative level.” Twombly, 550 U.S. at 555.
Plaintiffs also point to a now declassified opinion in which the FISC, conducting review of the NSA’s targeting and minimization procedures for Upstream collection, observed that the NSA annually collected more than 250 million online communications pursuant to Section 702. Am. Compl. ¶ 37; [Caption Redacted], 2011 WL 10945618, at *9 (F.I.S.C. Oct. 3, 2011) (“Oct. 3, 2011 FISC Op.”).10 The FISC also found, however, “[that] the vast majority of these communications [were] obtained from Internet service providers” via PRISM collection, not Upstream. Id. at *9 & n.24. “Indeed, NSA’s [U]pstream collection constitute[d] only approximately 9% of the total Internet communications [then] acquired by [the] NSA under Section 702,” id. at *9; see also id. at *7 n.21, *26, or roughly 25 million communications out of the many trillions that traverse the Internet each year. See Lee Decl. ¶¶ 27-3213–19. Nothing in the FISC’s October 3, 2011 opinion suggests that the NSA, in order to collect this tiny
has worked with law enforcement and the intelligence community “as a technical lead” on projects including “computer forensic and security software development” and “cyberforensics.” Id. Mr. Lee has also co-authored a book in this field, Know Your Enemy (2d ed.).
9 When subject matter jurisdiction is challenged via a Rule 12(b)(1) motion to dismiss, “the district court . . . may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); Murphy-Taylor v. Hofmann, 968 F. Supp. 2d 693, 712 (D. Md. 2013).
10 In that decision the FISC largely approved the NSA’s targeting and minimization procedures as consistent with statutory and constitutional requirements, but concluded that they fell short so far as “multi-communication transactions” were concerned. Oct. 3, 2011 FISC Op., 2011 WL at 10945618, at *5–6. Thereafter the NSA amended its procedures, and the FISC concluded the amendments “[had] adequately corrected the deficiencies identified” in its October 3, 2011 opinion. [Caption Redacted], 2011 WL 10947772, at *8 (F.I.S.C. Nov. 30, 2011).
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percentage of online communications, first intercepts, copies, and reviews for selectors almost every international communication carried on U.S. telecommunications networks.
Lastly, Plaintiffs rely on the PCLOB and PRG Reports, Am. Compl. ¶ 37, but these reports simply repeat the figures in the ODNI Transparency Report and the FISC’s October 3, 2011 opinion. See PCLOB Report at 33 & n.116, 37 & n.134, 113, 116 n.487; PRG Report at 142. They add nothing regarding the scope or scale on which Upstream collection operates.
In short, Plaintiffs’ “naked assertions” are unsupported by any well-pleaded, nonconclusory allegations from which it could plausibly be concluded that the NSA, when conducting Upstream surveillance, intercepts, copies, and reviews for selectors “substantially all” international online communications that traverse the United States. Consequently, they have failed to plausibly allege interception, copying, or review of their communications so as to support their Article III standing. Iqbal, 556 U.S. at 678; Southern Walk at Broadlands Homeowner’s Ass’n, Inc. v. Open Band at Broadlands, LLC, 713 F.3d 175, 182 (4th Cir. 2013).
B. Neither the Alleged “Extraordinarily High Volume” and Global Distribution of Wikimedia’s Communications, Nor Plaintiffs’ Unilateral Assumptions About How Upstream Surveillance “Must Be” Conducted To Achieve Its Objectives, Establishes That Any of the Plaintiffs’ Communications (Including Wikimedia’s) Are Intercepted, Copied, or Reviewed for Selectors in the Upstream Collection Process.
Plaintiffs next allege that the “sheer volume” and “geographic distribution” of their online communications also make it “virtually certain” that the NSA intercepts, copies and reviews for selectors “at least some of their communications.” Am. Compl. ¶¶ 58-67. First, they assert that because Plaintiffs “collectively engage” in more than a trillion international online communications each year, “the odds of the [NSA] copying and reviewing at least one of the Plaintiffs’ communications in a one-year period [is] greater than 99.9999999999 %.” Id. ¶ 58. And because Plaintiffs allegedly communicate “with individuals in virtually every country on [E]arth,” they assert that “[their] communications almost certainly traverse every international
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backbone link connecting the United States with the rest of the world,” at least some of which, they maintain, are “monitor[ed]” by the NSA. Id. ¶¶ 61, 63.
As explained below, these allegations are also insufficient to establish that any of the Plaintiffs’ communications are intercepted, copied and reviewed by the NSA. The Amended Complaint makes plain that when Plaintiffs speak of the alleged volume and global distribution of their “collective[ ]” communications they effectively mean the data transmissions that occur when anonymous Internet users from around the world view and download pages on Wikimedia websites. See id. ¶ 88. The eight other Plaintiffs cannot base their standing, however, on the alleged interception, copying, and review of Wikimedia’s communications. See § II.B.1, infra.
Moreover, Plaintiffs’ allegations fail even to establish Wikimedia’s standing. The alleged number of page views on Wikimedia’s websites represents a relatively small portion of total Internet traffic, and the claim that the volume of these page views makes it over 99% certain that the NSA is intercepting, copying, and reviewing even Wikimedia’s communications is statistically unsupported—indeed, contradicted—by the Amended Complaint’s allegations. See §§ II.B.2, B.3, infra. Likewise, the proposition that the alleged worldwide distribution of requests to view Wikimedia webpages also makes it virtually certain that Wikimedia’s “communications” are intercepted, copied and reviewed for selectors, Am. Compl. ¶¶ 62-65, rests on unsupported speculation about how the NSA “must be” conducting Upstream surveillance to achieve its supposed objectives. See § II.B.4, infra. Under Amnesty International, the statistical assumptions and speculation on which Plaintiffs rely are insufficient, as a matter of law, to establish the injury required for purposes of Article III. See § II.B.5, infra.
1. Wikimedia’s Co-Plaintiffs Cannot Base Their Standing on the Alleged Number and Distribution of Visits to Wikimedia Websites.
The Amended Complaint alleges that “[i]n the course of a year, Plaintiffs”—nine entities in all—“collectively engage in more than one trillion international [I]nternet communications,”
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and that they “communicate with individuals in virtually every country on [E]arth.” Am. Compl. ¶¶ 58, 61. In Plaintiffs’ view, the “sheer volume” and “geographic distribution” of the communications in which they “collectively” engage make it “virtually certain that the NSA has intercepted, copied, and reviewed Plaintiffs’ communications.” Id. ¶¶ 58, 60.
The Amended Complaint makes it clear, however, that the vast majority of the online communications in which Plaintiffs say they “collectively” engage are communications in which Wikimedia alone claims to engage, the data transmissions that occur when Internet users view or download information appearing on Wikimedia’s public websites. Plaintiffs allege that Wikimedia alone “engages in more than one trillion international communications each year, with individuals who are located in virtually every country on [E]arth,” based on the alleged 88 billion monthly requests it receives from Internet users outside the United States to view, download, or edit the content on Wikimedia websites. Id. ¶ 88; see also id. ¶ 87 (“As the operator of one of the most-visited websites in the world [Wikipedia], Wikimedia engages in an extraordinarily high volume of [I]nternet communications.”).
Thus, the face of the Amended Complaint itself makes clear that when Plaintiffs speak of the “more than one trillion international [I]nternet communications” in which they “collectively engage,” id. ¶ 58, they mean the more than one trillion so-called communications in which Wikimedia alone engages, plus the relatively inconsequential numbers of each of the other Plaintiffs’ online communications, which the Amended Complaint does not even bother to quantify. But even if the “sheer volume” and distribution of Wikimedia’s communications were sufficient to establish Wikimedia’s standing—which, as discussed in §§ II.B.2, B.3, infra, it is not—it proves nothing about the likelihood of intercepting the communications of the other eight Plaintiffs. See Valley Forge, 454 U.S. at 472 (“Art[icle] III requires [a] party who invokes the court’s authority to show that [it] personally has suffered some actual or threatened injury . . . .”)
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(citation omitted); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 39 (1976) (a party seeking judicial review “must [it]self have suffered an injury”).
Plaintiffs maintain that because of the “collective[]” volume of their communications, the odds are at least “99.9999999999%” that the NSA intercepts, copies, and reviews “at least one of the Plaintiffs’ communications in a one-year period.” Am. Compl. ¶ 58 (emphasis added). But even if that claim were statistically supported by Plaintiffs’ allegations—which it is not, see § II.B.2, infra—the chances that the NSA intercepts, copies, and reviews “at least one communication for a particular Plaintiff” other than Wikimedia are “likely much lower.” Declaration of Dr. Alan Salzberg (attached hereto) (“Salzberg Decl.”) ¶ 12.11 For example, even accepting Plaintiffs’ assumptions, see Am. Compl. ¶ 58, if another of the Plaintiff organizations conducted as many as one million online communications each year, “the chances that at least one of that Plaintiff’s communications (as opposed to Plaintiff Wikimedia’s communications) would be [intercepted,] copied, and reviewed would be [just] 1 in 10,000.” Salzberg Decl. ¶ 13.
Moreover, Plaintiffs’ communal theory of injury, that all of them have standing because “at least one of [their] communications” statistically must have been intercepted, is foreign to the principles of standing. “Standing is not dispensed in gross.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 185 (2000) (quoting Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996)). “It is not enough [to show] that the conduct of which [a] plaintiff complains will injure someone,” Blum v. Yaretsky, 457 U.S. 991, 999 (1982); rather, “[a] party seeking review [must] be [it]self among the injured.” Defenders of Wildlife, 504 U.S. at 563. It does not meet any of
11 Dr. Salzberg is the Principal (and owner) of Salt Hill Statistical Consulting. He received a Ph.D. in Statistics from the University of Pennsylvania, has taught courses in statistics and quantitative methods at the University of Pennsylvania and American University, has published several statistics papers in peer-reviewed journals, and is the co-inventor of a patented statistical process designed to test the systems of telecommunications companies. Dr. Salzberg’s work involves statistical sampling, analysis, and review conducted in a wide variety of matters for government and industry. Salzberg Decl. ¶¶ 1-3.
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the Plaintiffs’ burden under Article III to allege that “at least one” of them has been injured without specifying which one (or more) of them, if any, has (or have) actually suffered concrete harm because of the Government’s alleged conduct. Cf. Summers v. Earth Island Inst., 555 U.S. 488, 497-99 (2009) (even a “statistical probability that some of [an organization’s] members are threatened with concrete injury” could not establish the organization’s standing absent “specific allegations establishing that at least one identified member had suffered or would suffer harm”).
2. Wikimedia’s Alleged International Online Communications Represent Only a Small Proportion of the Total Volume of Communications Carried on the Internet.
The “sheer volume” of Wikimedia’s international online communications, allegedly “more than one trillion . . . each year,” Am. Compl. ¶ 88, also fails to support an inference, much less establish a certainty, that the NSA intercepts, copies, and reviews any of Wikimedia’s communications. Id. ¶ 58. Traffic on the Internet includes numerous forms of communications, including “e-mail, web browsing, social media, audio and video streaming, Voice Over Internet Protocol (Internet telephony), video conferencing, and peer to peer sharing.” Lee Decl. ¶ 26. This traffic totals about 2.4 billion gigabytes of data traversing the Internet per day, about 875 billion gigabytes per year. Id. Wikimedia does not plead what portion of these communications, even the text-based communications, see id. ¶¶ 26-34, may be attributed to its communications. In other words, Wikimedia provides no context with which to evaluate whether a trillion Internet “communications” constitutes a comparatively large or comparatively small share of the total.12
Wikimedia appears to calculate its alleged one trillion international online “communications” by totaling the number of HTTP (or HTTPS) (hereinafter HTTP/S)13
12 Put simply, Wikimedia has told the Court how many drops of water it has in the bucket, without telling the Court how much water is in the bucket.
13 An HTTP request is a means of asking for data transfer on the Internet; if the communication stream is encrypted, the request is an HTTPS request. Lee Decl. ¶ 18 & nn.7-8.
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“requests” that Wikimedia websites receive when users “view, search, log in [to], edit, or contribute to a Wikimedia Project webpage,” Am. Compl. ¶ 88, the sites’ responses thereto, and the number of “corresponding log entr[ies]” that the sites create to track each of those requests. Id. ¶ 93.14 Wikimedia alleges that its U.S.-based servers received more than 88 billion HTTP/S requests in May 2015, equating to more than one trillion a year, see id. ¶ 88.
The number of HTTP/S requests, however, is not a reliable measure of the relative volume of a website’s traffic. Webpages may consist of many, even hundreds, of files depending on their complexity and graphic content. When a user sends a request to view a webpage, the website’s host computers send each of the files comprising that webpage in a separate HTTP/S transmission. Lee Decl. ¶ 18. Thus, for example, to permit a user “to view a webpage containing fifteen graphics, the webpage’s host computer (or computers) would send sixteen files to the user’s computer—one file to convey the text, and fifteen files to convey each of the images appearing on that page.” Id. Because the number of HTTP/S requests a page view will generate depends on such factors as the number of graphics and advertisements on a webpage, see id. ¶ 32 n.34, they are “not a reliable metric for determining the comparative popularity and usage of websites,” id. ¶ 18 n.8, and thus not a reliable baseline for comparing the volume of Wikimedia’s “communications” (as Plaintiffs define that term) to that of other websites.
A more reliable metric, and one relied on by private industry to track website usage, is webpage views. Lee Decl. ¶¶ 24, 30. Wikimedia alleges that from “April 1, 2014 to March 31,
14 Wikimedia also alleges that it “engages in communications that permit its users to interact with one another more directly” such as by “send[ing] an e-mail via Wikimedia to another registered user.” Am. Compl. ¶ 92. Similarly, Wikimedia alleges that it “allows users to interact in small or limited groups” and “[s]ome of these communications are transmitted by HTTP or HTTPS.” Id. Wikimedia also alleges that its “staff” also engages in online communications. Id. ¶ 86. Since the Amended Complaint does not purport to quantify these communications separate and apart from the alleged total of one trillion, presumably their number is minuscule in comparison to the volume of Wikimedia’s Internet traffic.
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2015, [its] websites received over 255 billion page views,” Am. Compl. ¶ 87, that is,
approximately 21.25 billion per month. These numbers, while apparently large, pale in
comparison to the number of page views for other websites. Similar Web, one of a number of
commercial organizations that track website usage, ranks Wikipedia (Wikimedia’s most popular
site) as number eight worldwide, id. ¶¶ 30-31, behind such Internet giants as Facebook.com and
Google.com. Id. According to Similar Web, Facebook.com had an estimated 354 billion web
page views per month in June 2015, or about 4.2 trillion each year; and Google.com had about 207 billion web page views per month, or about 2.5 trillion per year. See id. ¶ 31.15
Similar Web also publishes monthly page view data for the top 50 websites; in June
2015, the monthly total for the top 50 sites was 1.167 trillion, or 14 trillion per year, see Lee
Decl. ¶ 32 & Exh. T, compared to Wikimedia’s alleged monthly total of 21.25 billion, or 255 billion per year. Am. Compl. ¶ 87.16 Thus, Wikimedia’s “extraordinarily large” number of page
views equals less than two percent (1.82%) of the views on the top 50 websites alone. That
proportion “would fall much further if the total monthly page views of the approximately 244
million currently active websites” were known and used to calculate Wikimedia’s share instead.
Lee Decl. ¶ 32.
Wikimedia’s 21.25 billion page views per month also pale in comparison to the total
number of other text-based communications on the Internet, principally e-mail. Recent data
15 If HTTP/S requests were used as the basis for comparison instead of page views, the volume of Wikimedia’s communications would appear even smaller in relation to sites such as Facebook. This is so because “[t]ypically . . . a single page view on a site like Facebook.com, which contains many graphics and advertisements, will require many more HTTP requests than a page view on a text-heavy site, like Wikipedia, with few graphics and no ads.” Lee Decl. ¶ 32 n.34; see also id. ¶ 18.
16 Accepting Wikimedia’s alleged 21.25 billion page views per month as a basis for comparison is likely generous to Wikimedia. Similar Web estimates that Wikipedia, by far the most popular of the Wiki projects, received only 7.92 billion page views in June 2015. Lee Decl. ¶ 31. None of Wikimedia’s other websites ranks among the top 50 sites, see id., Exh. T. It is unlikely they collectively receive nearly 14 billion page views per month.
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indicate that approximately 207 billion e-mails are sent every day, see Lee Decl. ¶ 27, that is, about 6.21 trillion per month, or 75.6 trillion per year. Thus, Wikimedia’s alleged volume of page views corresponds to approximately three-tenths of one percent (0.34%) of just the e-mail traffic carried on the Internet. See id. ¶ 28. Wikimedia’s page views amount to less than threetenths of a percent (0.29%) of the combined traffic attributable to e-mail (75 trillion) and the top 50 websites (14 trillion). Id. ¶ 33.
In short, Wikimedia’s “extraordinarily high volume of internet communications” is minuscule when compared to the total volume of Internet traffic. Regardless of its “sheer volume,” Wikimedia’s “comparatively small” share of Internet traffic, Lee Decl. ¶ 34, does not itself plausibly establish a “virtual[ ] certain[ty]” that Wikimedia’s communications are intercepted, copied, and reviewed during the Upstream process.
3. Wikimedia’s Allegation That the Volume of its Communications Makes Interception of at Least Some of Those Communications a Virtual Certainty is Statistically Unsupported.
Notwithstanding its diminutive share of total Internet traffic, Wikimedia alleges that the “odds of the [NSA] copying and reviewing at least one of [its] communications in a one-year period would be greater than 99.9999999999%.” Am. Compl. ¶ 58. While this figure gives the appearance of near statistical certainty, it rests on explicit and implicit assumptions which, if incorrect, would invalidate Plaintiffs’ calculation, see Salzberg Decl. ¶¶ 4-6, yet for which the Amended Complaint gives no factual support. Critical assumptions underlying the calculation are in fact contradicted by Plaintiffs’ allegations, such that the chances of copying and reviewing one of Wikimedia’s communications “could be far less than 100%.” See id. ¶¶ 11, 18—20.
Plaintiffs’ calculation depends on two implied yet “sweeping” assumptions that lack “statistical foundation” in the Amended Complaint. Id. ¶¶ 5, 14, 15, 16. These two assumptions are of “‘independence’” and “identical distribut[ion],” meaning that “the chances of copying and
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reviewing” communications “are the same for all communications and that the chances of any one [communication] being copied and reviewed does not vary based on whether any other [communication] is copied and reviewed.” Id. ¶ 14.17 In practice, this two-fold assumption would mean that “communications from anywhere in the world all have equal chances of being copied and reviewed,” whether a communication originates in Iran or Ireland. Id. Similarly, it means that a communication from someone’s computer in Iran has no greater or lesser chance of being copied and reviewed than a communication “one second later” by someone using the same computer in Iran. See id. For Plaintiffs’ calculation to be accurate, Upstream surveillance, in practice, would have to conform to this “studiously random statistical model.” Id. ¶ 18.
But that is not how Plaintiffs have alleged that Upstream collection operates. See id. ¶¶ 14, 18, 19. In fact, Plaintiffs’ “statistical assumptions . . . are inconsistent with how they say [the] . . . process works.” Id. ¶ 18. Plaintiffs maintain that Upstream involves the installation of surveillance devices “at key access points” so that copying occurs at “certain high-capacity cables, switches, and routers.” Am. Compl. ¶ 49 (emphasis added). “Any [resulting] clustering of the copying and reviewing of communications, whether by country or some other criteria, would mean [1] that some groups [of communications] would have different chances of being copied than some other groups and [2] that the fact that a particular communication in one group is reviewed or copied means [that] other communications in that group are more likely to be copied.” Salzberg Decl. ¶ 15. In this way, “even a very large operation of copying and reviewing communications may completely miss some communications while copying and reviewing nearly 100% of others.” Id. ¶ 19. In short, the interception, copying, and selector
17 The calculation also “assumes a 0.00000001% chance” of the “NSA copying and reviewing any particular communication.” Am. Compl. ¶ 58. But there is “no statistical foundation” for that assumption “in the Amended Complaint,” and if the assumption is incorrect, then the conclusion could be “drastically affect[ed]” as a result. Salzberg Decl. ¶¶ 5, 11.
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review of communications alleged by Plaintiffs is not random, as Wikimedia assumes in calculating the chances of intercepting its communications.
Thus, the Amended Complaint fails to substantiate and indeed contradicts a key assumption which, if incorrect, would invalidate the calculated odds of intercepting Wikimedia’s communications. Id. ¶¶ 6, 14-15, 19-20. On the facts alleged in the Amended Complaint, “it is not statistically inconsistent for the NSA to have reviewed a very large number of communications but still have reviewed none” of Wikimedia’s. Id. ¶ 8.
4. Wikimedia’s Allegation That the Geographic Distribution of its Communications Makes Interception of Those Communications a Virtual Certainty Also Rests on Unsupported Speculation About the Manner in Which Upstream Surveillance is Conducted.
Wikimedia also cites the alleged geographic distribution of its communications, together with its assessment of how the NSA “must be” conducting Upstream collection to “reliably” achieve its objectives, as establishing a virtual certainty that its communications are intercepted as part of that program. See Am. Compl. ¶¶ 60–69. But Wikimedia’s analysis is flawed. The operational details of Upstream collection remain classified, and Wikimedia’s allegations regarding the manner in which Upstream surveillance “must be” conducted are based on technological misperceptions of how communications travel on the Internet. Thus, whether the NSA does or does not carry out Upstream surveillance in the manner Wikimedia describes remains a matter of speculation on par with that rejected by the Court in Amnesty International.
To establish that its communications “must” be collected as part of Upstream surveillance as an operational matter, Wikimedia first juxtaposes the alleged worldwide distribution of its communications with the limited number of locations at which Internet traffic might enter or exit the country. Plaintiffs allege that “almost all international [I]nternet traffic . . . flows” into or out of the United States at “chokepoints” where “approximately 49 international submarine cables” enter the country. Am. Compl. ¶ 60. Given the “relatively small number of international
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chokepoints,” Wikimedia claims that its “communications almost certainly traverse every [such] international backbone link.” Id. ¶ 61. Wikimedia infers that if Upstream collection is occurring on any one of these links, it must be capturing Wikimedia’s communications. See id. ¶¶ 60–61.
But Wikimedia’s description oversimplifies—and assumes, incorrectly, that to intercept some communications carried on a backbone cable requires intercepting them all. While it may be accurate to say that the Internet “backbone” includes approximately 49 submarine cables on which international communications may travel, “[e]very such modern fiber-optic cable, in turn, consists of multiple smaller sub-cables housed inside that can each contain up to one thousand silica glass fibers.” Lee Decl. ¶ 11. Importantly, “it would not be necessary, as a technical matter, to copy all the streams of communications on an entire backbone cable in order to copy all of the communications traveling across a particular sub-cable within that backbone cable.”18 Id. ¶ 13; see also id. ¶ 2. Thus, even if the NSA were copying and reviewing streams of electronic communications on a given backbone cable through which Wikimedia’s communications passed, it does not necessarily follow that the NSA would be copying and reviewing all streams carried on that cable, or even the streams carried on the particular subcables through which Wikimedia’s (or any of the Plaintiffs’) communications passed. See id. ¶ 13. Wikimedia can only speculate whether that is the case, or not, which is insufficient for purposes of establishing its standing.
Nor does the fact that communications travel on the Internet in discrete “packets” compel the conclusion that the NSA intercepts, copies, and reviews for selectors all communications that transit a given backbone link. Wikimedia contends that because communications traverse the Internet in packets that “travel independently of one another,” “the government must first copy
18 Mr. Lee emphasizes that he “[has] no knowledge of how the NSA conducts the surveillance at issue in this case” but is providing this assessment “as a matter of technology.” Lee Decl. at 7, n.5.
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all such packets traversing a given backbone link” to “reliably” obtain the packets necessary to reconstruct any communications of interest. Id. ¶ 63. On this basis, Wikimedia concludes that, “even if the NSA conducts Upstream surveillance on only a single internet backbone link,” it must be copying all communications flowing across that link, including Wikimedia’s. Id. ¶ 64.
But Wikimedia overstates matters, at best. “Generally, all of the packets comprising a single communication travel on the same single hair-thin glass fiber” within a single sub-cable. Lee Decl. ¶ 12. “When information is broken into packets pursuant to the TCP/IP protocol19 . . . it is possible, but unlikely, that routers will direct the packets to different paths.” Id. “Typically, the packets of one communication will be separated and sent on different paths only if a change in conditions—such as a suddenly high volume of traffic on the initial path—renders a different path more advantageous than the route initially selected.” Id. Thus, “[b]ecause the packets constituting a single communication are likely to travel on the same fiber within a sub-cable of a backbone cable, it would not be necessary, as a technical matter, to copy the entire stream of communications carried on every fiber within a sub-cable,” id. ¶ 13, much less to copy the entire stream of communication carried on the larger backbone cable, to reliably obtain the packets comprising one communication.20
Finally, Wikimedia alleges that the NSA must be intercepting, copying, and reviewing all communications carried on “many different” backbone links because of its “strong incentive” to ensure that it has “reliably” and “comprehensively” obtained all communications associated with its targets. Am. Compl. ¶ 62, 64-66. But that is mere conjecture. Plaintiffs “have no actual
19 “‘Transport Control Protocol/Internet Protocol’ (‘TCP/IP’) is “a set of rules or protocols” that “devices connected to the Internet follow.” Lee Decl. ¶ 6. It “facilitates communication between different computers or networks of computers, and, among other things, it establishes rules for breaking communications into ‘packets’ that can travel efficiently.” Id.
20 Furthermore, “not all packets of a given TCP stream are necessary to intelligibly assemble its contents.” Id. ¶ 13 n.4. Thus, it is not always necessary to collect every packet associated with a communication to reconstruct the contents of a TCP stream.
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knowledge of the [NSA’s] targeting practices,” Amnesty Int’l, 133 S. Ct. at 1148-49. They have no idea how the NSA has defined the operational objectives of Upstream surveillance in practice, or the extent to which the NSA has committed its technical, financial, and personnel resources to the achievement of those objectives as opposed to providing operational support for other forms of surveillance it must also conduct to protect national security. Plaintiffs’ speculation “as to how the [NSA] will exercise its discretion in determining which communications to target,” and how, is insufficient to establish Wikimedia’s standing. Id. at 1149.
Wikimedia’s allegations regarding the manner in which it believes Upstream surveillance must be conducted touch on highly sensitive and classified operational details about the program. Any attempt on Plaintiffs’ part to discover the truth of these matters (were this case to proceed beyond the pleading stage) would potentially implicate privileged state secrets. See Jewel, 2015 WL 545925, at *1, 5. For present purposes, however, it suffices to observe that Plaintiffs can only guess whether Upstream surveillance is carried out in any manner resembling their allegations. For this reason as well, the “virtual[ ] certain[ty]” that the NSA intercepts, copies, and reviews Wikimedia’s communications for selectors amounts to nothing more than speculation, and will not suffice to establish Wikimedia’s Article III standing.
5. The Allegation that the Volume and Distribution of Wikimedia’s Communications Make it Likely That They Have Been Intercepted, Copied, and Reviewed in the Upstream Process is Legally Insufficient, Under Amnesty International, to Establish Wikimedia’s Standing.
Wikimedia’s standing arguments are not only factually unsubstantiated, they are foreclosed as a matter of law by Supreme Court precedent. In Amnesty International, the plaintiffs challenged the legality of Section 702 on the day it was enacted. See 133 S. Ct. at 1146. Lacking “any evidence that their communications ha[d] been monitored under” any program authorized by the statute, “a failure,” the Court noted, that “substantially undermine[d] their standing theory,” id. at 1148, the plaintiffs claimed instead that they had standing because
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there was an “objectively reasonable likelihood” that their communications “[would] be intercepted” “in the future.” Id. at 1147.
The Supreme Court rejected this “novel view of standing,” id. at 1146, because it was “inconsistent with [its] requirement that the threatened injury must be certainly impending to constitute injury in fact.” Id. at 1147. In so holding, the majority declined to follow the approach advocated by the dissenting Justices, who, relying on “commonsense inferences,” found a “very high likelihood” that the Government would “intercept at least some of the” plaintiffs’ communications. Id. at 1157 (Breyer, J., dissenting). The dissent relied on a combination of facts, including (1) that the plaintiffs regularly engaged in the type of electronic communications—with and about suspected foreign terrorists, their families and associates, and their activities—that the Government had “the capacity” to collect and was highly “motivated,” for counter-terrorism purposes, to intercept, and (2) that the Government had in fact intercepted such communications on thousands of occasions in the past. Id. at 1156–59.
Like the plaintiffs in Amnesty International, Wikimedia “fail[s] to offer” any well-pled allegations “that [its] communications have been monitored under” Upstream, id. at 1148, and instead it tacitly advances a “likelihood” theory of standing —oversold as a “virtual[] certain[ty],” Am. Compl. ¶ 58—that is remarkably similar to the one rejected in Amnesty International. Wikimedia would have the Court infer that the NSA intercepts its communications—without any allegations of specific facts demonstrating that to be so—based on generalized allegations about the volume and distribution of its communications, and uninformed speculation about how the NSA “must be” conducting Upstream surveillance that rests on assumptions (of the very kind rejected by the majority in Amnesty International) about the NSA’s motives and capabilities. See id. ¶¶ 57-67.
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The Court should reject this repackaged theory of standing. Amnesty International teaches that relying solely on supposedly “commonsense inferences,” id. at 1157 (Breyer, J., dissenting), based on limited knowledge—or, more accurately, “mere[ ] speculat[ion],” without any “actual knowledge,” id. at 1148—about the scope and operation of the Government’s classified intelligence-gathering activities, is not a sufficiently “rigorous” basis on which to find standing to challenge those activities. See id. at 1147. Rather, at a minimum, the Amended Complaint must adequately plead facts plausibly demonstrating that Wikimedia’s communications have been or imminently will be intercepted under the program. See id. at 1149; Iqbal, 556 U.S. at 678–79; David, 704 F.3d at 333; Zander, 786 F. Supp. 2d at 883. As discussed above, Wikimedia has made no such specific allegations.
C. Wikimedia Has Alleged No Injury from the Claimed Interception, Copying and Review of Its Online Communications.
Even if Wikimedia plausibly alleged a likelihood that the NSA intercepts, copies, and reviews for selectors Wikimedia’s “communications with its community members” and the logs thereof, Am. Compl. ¶ 86, and even if that alleged likelihood were sufficient, under Amnesty International, to confer Article III standing, Wikimedia would still lack prudential standing to challenge the alleged interception, copying, and review of these communications. This is so because Wikimedia lacks third-party standing to raise the legal rights and interests of these unidentified Internet users who view, contribute to or otherwise interact online with its websites.
As discussed above, by “communications with its community members” Wikimedia principally means Internet users visiting its web pages, to read or sometimes edit their content, or to communicate with one another through a Wikimedia website. Id. ¶¶ 81, 86. To communicate on the Internet, whether to send and receive e-mail, “browse” the World Wide Web, or otherwise, a user must obtain a connection from an Internet service provider (“ISP”). Lee Decl.
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¶ 5.21 When a user, by means of a computer or other device, makes a request to view or
download information located on a website, the ISP through which the user accesses the Internet
at that particular time and place assigns a public Internet Protocol (“IP”) address to communications associated with the user’s device. Id. ¶¶ 9, 15.22 The global communications
network then routes the user’s request, together with the assigned public IP address, to the public
IP address of the computers on which the website is housed. Id. ¶ 16. Upon receiving the
request, the website’s host computers automatically generate and send one or more return
messages that include the information requested by the user (usually broken down into packets)
and the public IP address previously assigned to the user’s request, which the global network
then uses to route the response (via the ISP) to the user’s device. Id. ¶ 17; see id. ¶¶ 6-7.
At no time during this automated process do the website’s operators learn the identity of
the user (unless the user him or herself has conveyed that information to the website). Id. ¶ 10.
The request is identified by the public IP address associated with it; the ISP may (or may not)
know the identity of the user who made the request, but the website does not. Id. Furthermore,
the IP address associated with future requests by the same user may change, depending on when and where the user makes those future requests. Id. ¶ 21.23
21 Users may connect, for example, at home through service to which they personally subscribe; at work, through their employer’s ISP; or through an ISP furnishing service to a public establishment such as an “Internet café” or a Starbucks. Lee Decl. ¶ 21a–e.
22 The IP address may be static (permanent), as some ISPs assign to home subscribers, or a dynamic (temporary) IP address that may change after a period of time, such as an hour, a day, or the duration of the user’s Internet session, depending on the ISP’s practices. Lee Decl. ¶ 15.
23 For example, a request sent from an individual’s home will be associated with an IP address that was assigned by the ISP to whose service the homeowner subscribes, but the user could be the homeowner, or a family member, using the homeowner’s personal computer, or a visitor using his or her own laptop computer who connects through the homeowner’s Wi-Fi network. Lee Decl. ¶ 21.a. A request made by a user at his or her place of employment, using an employer-provided desktop computer, will be associated with a public IP address assigned by the employer’s ISP, which may be assigned the next day, hour, or even moment to the online communications of other individuals working for the same employer. Id. ¶ 21.b.
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In short, what Plaintiff Wikimedia calls “communications with its community members,”
Am. Compl. ¶ 86, are nothing more than automated transmissions of publicly available
information displayed on its websites, transmissions made at the initiation of anonymous
electronic requests identified by IP addresses. The information is not created by Wikimedia but
supplied by other, typically anonymous third parties, see id. ¶¶ 79–80; Wikimedia provides only the “technical infrastructure” needed to post it on the World Wide Web, id. ¶ 82.24 The content
is not privately held but made publicly available on Wikimedia websites for the use, education, and enjoyment of anyone in the world—Wikimedia’s self-stated raison d’être. Id. ¶¶ 6, 78.25
These transmissions are not initiated by Wikimedia nor does any living being employed by
Wikimedia select their contents. Rather, they are the mechanized responses of Wikimedia
computers to electronic requests received from digital devices belonging to individual Internet
users, who designate the content they wish to receive. Lee Decl. ¶¶ 17, 19.
Nor does Wikimedia know (or care, see Am. Compl. ¶ 78) to whom it sends the
information. It knows only the IP addresses associated with the communications in which these
requests are received. Lee Decl. ¶¶ 16-20. It knows nothing about the actual identities of the
24 As stated in the overview to Wikimedia’s own Terms of Use for contributors, authors, and editors, http://wikimediafoundation.org/wiki/Terms_of_Use (last visited on August 5, 2015), Wikimedia does not “contribute, monitor, or delete content” on its websites, it “merely host[s] this content,” “maintaining the infrastructure and organizational framework that allows [its] users to build the Wikimedia [websites] by contributing and editing [the] content themselves.” See also id. (“Our Services”) (Wikimedia “do[es] not take an editorial role” but “simply provide[s] access to the content that . . . users have contributed and edited.”).
25 See Maryland v. Macon, 472 U.S. 463, 469 (1985) (undercover officer did not infringe on a legitimate expectation of privacy by entering bookstore and examining books “that were intentionally exposed to all who frequent[ed] the place of business”) (citing Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection.”)); see also United States v. Baalerud, 2015 WL 1349821, at *8 (W.D.N.C. Mar. 25, 2015) (noting that every court of appeals to consider the question has held that there is no reasonable expectation of privacy in personal computer files that are made publicly available through use of peer-to-peer software) (citing cases).
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users who view or download contents from its websites unless those users specifically provide
that information to the websites. Id. ¶¶ 19-21.
It comes as little surprise, therefore, that the Amended Complaint identifies no privacy
interest of Wikimedia’s in these “communications with its community members,” or in
Wikimedia’s internal “log[s]” of the communications. Id. ¶ 86. Rather, it speaks only in terms
of users’ privacy interests. According to the Amended Complaint, “Wikimedia’s
communications with its community members, as well as its internal [log] communications . . .
are often sensitive and private,” because they “reveal a detailed picture of the everyday concerns
and reading habits of Wikimedia’s users, and often constitute a record of their political, religious, sexual, medical, and expressive interests.” Id. ¶ 95.26 Thus, even if Wikimedia adequately
alleged NSA interception, copying and selector review of these communications, the Amended Complaint alleges no resulting injury except (arguably) to the privacy of online users. 27
Wikimedia lacks standing, however, to assert the privacy rights of unidentified Internet
users who happen to view, download, or even edit information on its websites. Prudential limits
on standing generally bar litigants from basing their claims on the legal rights and interests of
third parties not before the court. Tesmer, 543 U.S. at 129; Doe, 713 F.3d at 754. The rule
against third-party standing may be overcome only where a plaintiff “demonstrate[s]: (1) an
26 See also id. ¶¶ 89-94. (alleging that online communications with Wikimedia websites reveal what users read or write on, or the information they request from, Wikimedia websites, as well as other information about them including IP addresses, their user names and other log-in credentials, the type of devices they use online, and their approximate geographic location); id. ¶¶ 93-94 (alleging that Wikimedia’s internal log communications contain similar information about online users who view, contribute to or otherwise communicate via Wikimedia websites).
27 Wikimedia also alleges no privacy interest of its own in the communications through which its users “interact” with one another. The Amended Complaint describes these communications as including e-mail among registered users of Wikimedia accounts, restrictedaccess wikis (collaborative web pages), and user mailing lists. Am. Compl. ¶ 92. Although Wikimedia allegedly supplies the technical infrastructure to make these user-to-user communications possible, see id.¶ 82 (much like a typical Internet service provider), Wikimedia identifies no privacy interest it possesses in these communications between and among users.
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injury-in-fact; (2) a close relationship between [itself] and the person[s] whose right[s] [it] seeks
to assert; and (3) a hindrance to the third part[ies’] ability to protect [their] interests.” Freilich,
313 F.3d at 215 (citation omitted). Wikimedia satisfies none of these requirements so far as
transmissions between its websites and anonymous users, and its logs thereof, are concerned.
First, as discussed supra, at 39, the Amended Complaint does not even purport to identify
an injury to Wikimedia’s privacy interests from the alleged NSA interception, copying, and
selector review of transmissions between Wikimedia websites and Internet users. See generally Am. Compl. ¶¶ 78–109.28 Second, the Amended Complaint does not plausibly allege a “close
relationship” between Wikimedia and the alleged hundreds of millions of anonymous visitors to
its websites, id. ¶¶ 2, 79, ordinary persons, browsing the Internet, whose identities are entirely
unknown to it, see supra, at 38. Cf. Tesmer, 543 U.S. at 130–31 (attorneys seeking to challenge
constitutionality of state law restricting appointment of appellate counsel for indigent defendants
did not have a “close relationship” with “as yet unascertained . . . criminal defendants”).
Third, even if Wikimedia met these first two requirements, it has not alleged a hindrance
to users’ ability to bring suits such as this on their own. Wikimedia suggests that the rights of its
“community members” will be impaired if it is not permitted to maintain this suit, because they
“are so numerous, because they are dispersed across the globe, and because millions of them
choose to interact with Wikimedia anonymously.” Am. Compl. ¶ 111. But the numerosity of
28 Wikimedia alleges in passing that its communications “also reveal private information about its operations, including details about its technical infrastructure, its data flows, and its member community writ large.” Am. Compl. ¶ 99. Even to begin to glean such information, however, would require more than simply intercepting, copying, and reviewing online communications for targeted selectors. “[S]ubstantially all of the traffic flowing to and from [a] website’s servers . . .would need to be recorded, ingested into a database, and then . . . analyzed to try to piece together the infrastructure and data flows involved.” Lee Decl. ¶ 8 n.3. As discussed in § III, infra, none of the Plaintiffs, including Wikimedia, has plausibly alleged that any of their online communications are actually retained and reviewed in NSA databases. Thus the Amended Complaint alleges no infringement on the privacy interest asserted in paragraph 99 that could support Wikimedia’s standing.
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Wikimedia’s “community members” (allegedly hundreds of millions) makes it far more likely, not less, that willing and able plaintiffs can be found among them. See American Immigration Lawyers Ass’n v. Reno, 199 F.3d 1352, 1363 (D.C. Cir. 2000) (denying third-party standing to immigrant rights organization where approximately 10,000 potential plaintiffs were available to contest allegedly unlawful removal procedures). And courts have rejected the proposition that overseas aliens, as such, face such insuperable barriers to suit in the United States that third parties must be permitted to assert their rights, especially where organizations such as Plaintiffs here (and their counsel) are in a position to provide legal assistance to potential plaintiffs. See American Immigration Lawyers Ass’n, 199 F.3d at 1362-63; Fenstermaker v. Bush, 2007 WL 1705068 *5 & n.6 (S.D.N.Y. June 12, 2007).29
The anonymity of typical users’ interactions with Wikimedia’s websites is not a matter of conscious choice, as Plaintiffs suggest, but the default condition when users view or download information available on a Wikimedia website, or any of the millions of other sites found on the World Wide Web. Lee Decl. ¶¶ 19-21. Revealing that one uses the Internet hardly amounts to the kind of privacy concern that has been recognized as a deterrent to rightholders’ defense of their own interests. See Carey v. Population Servs. Int’l, 431 U.S. 678, 684 n.4 (1977) (vendor had third-party standing to challenge law restricting sale of contraceptives to minors because potential purchasers may be chilled from asserting their own rights by a desire to protect their privacy) (citing Singleton v. Wulff, 428 U.S. 106, 117 (1976) (plurality opinion) (physicians may assert rights of patients to obtain abortions because desire to protect the privacy of their decision
29 If Plaintiffs’ objective in this case is to litigate whether Upstream surveillance violates the Fourth Amendment rights of non-U.S. persons located outside the United States who use the Internet, then—if Plaintiffs had standing—this case could be easily decided. The protections of the Fourth Amendment do not extend to non-U.S. persons located abroad. United States v. Verdugo-Urquidez, 494 U.S. 259, 264-67 (1990); see United States v. Mohamud, 2014 WL 2866749 *13 (D. Or. June 24, 2014). Moreover, as the Supreme Court has often held, Fourth Amendment rights are personal rights that cannot be asserted vicariously. Rakas v. Illinois, 439 U.S. 128, 140 (1978); California Bankers Ass’n v. Schultz, 416 U.S. 21, 69-70 n.8 (1974).
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may prevent patients from filing suit)); see also Miller v. Albright, 523 U.S. 420, 449 (1998) (O’Connor, J., concurring). Indeed, the presence of eight other plaintiffs to this suit alone, and the multiple plaintiffs who challenged Upstream collection in Jewel, 2015 WL 545925, at *1–2, belies any sweeping claim that Internet users as a class face obstacles that deter them from mounting legal challenges to Upstream surveillance.
In short, Plaintiffs have not plausibly alleged injuries to themselves that are sufficient under Amnesty International to confer standing to contest the legality of alleged NSA interception, copying, and selector review of international online communications during the Upstream collection process. III. PLAINTIFFS HAVE NOT PLAUSIBLY ALLEGED THAT COMMUNICATIONS
OF THEIRS ARE RETAINED, READ, AND DISSEMINATED BY THE NSA AS PART OF THE UPSTREAM SURVEILLANCE PROCESS. Because Plaintiffs do not plausibly allege initial NSA interception, copying, and selector review of their online communications, it necessarily follows that they have not adequately alleged that any of their communications are retained, read, or disseminated by the NSA, and the standing inquiry should end there. But even if they had adequately pled interception, copying, and review, Plaintiffs would still fail to establish their standing to challenge the subsequent alleged retention, analysis, and dissemination of their communications, for precisely the same reasons that the plaintiffs failed to establish their Article III standing in Amnesty International. A. Plaintiffs’ Allegations That Their Staffs Engage in Communications
With Likely Targets of Upstream Surveillance, About Topics That Could Be Considered Foreign-Intelligence Information, Are Insufficient Under Amnesty International to Establish Their Standing. Plaintiffs allege that they communicate with people “whom the government is likely to target when conducting Upstream surveillance,” such as foreign government officials, journalists, experts, human rights defenders, victims of human rights abuses, and others believed to have information relevant to counterterrorism efforts, and that “[a] significant amount of the
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information that Plaintiffs exchange over the internet is ‘foreign intelligence information’ within the meaning of the FAA.” Am. Compl. ¶¶ 73–74; see also id. ¶¶ 104, 105, 115, 125, 126, 133, 138, 143, 148, 153, 158, 163. Plaintiffs do not claim to communicate with particular individuals whom the Government has acknowledged as targets of Upstream surveillance. Indeed, the Government has not publicly disclosed whom it targets under the program, or the particular categories of foreign-intelligence information that it is authorized to acquire. See PCLOB Report at 24-25 & n.70 (noting that the Government’s Section 702 certifications, see supra, at 7-8, “identify categories of foreign intelligence information” whose acquisition is authorized). Rather, Plaintiffs surmise that “because of the nature of their communications, and the location and identities of the individuals and groups with whom and about whom they communicate, there is a substantial likelihood that Plaintiffs’ communications intercepted by the NSA through Upstream surveillance are retained, read, and disseminated.” Am. Compl. ¶ 71.
These allegations are nearly identical, however, to the allegations the Supreme Court rejected as too speculative in Amnesty International. See 133 S. Ct. at 1148–50. There, the plaintiffs alleged that “[b]ecause of the nature of their communications and the identities and geographic location of the individuals with whom they communicate, plaintiffs reasonably believe that their communications will be acquired, analyzed, retained, and disseminated under the challenged law.” See, e.g., Amnesty Int’l, USA v. Clapper, No. 08-cv-6259 (S.D.N.Y.), Pls. Mot. for Summ. Judg. at 11 (Exh. 4, hereto). While the plaintiffs in Amnesty International asserted that they “reasonably believe[d] that their communications [would] be acquired, analyzed, retained, and disseminated under [Section 702],” id. (emphasis added), Plaintiffs here allege a “substantial likelihood that Plaintiffs’ communications intercepted by the NSA through Upstream surveillance are retained, read, and disseminated.” Am. Compl. ¶ 71 (emphasis added). But regardless of whether Plaintiffs purport to hold a “reasonable belief” or assert a
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“substantial likelihood” of retention, the result is the same: the Supreme Court explicitly rejected the notion that an “objectively reasonable likelihood” standard is consistent with the “requirement that threatened injury must be certainly impending to constitute injury in fact.” Amnesty Int’l, 133 S. Ct. at 1147 (citation omitted).
Consequently, Plaintiffs’ assertion here, like the one made by the plaintiffs in Amnesty International, that the Government “will target . . . [plaintiffs’] foreign contacts,” id. at 1148, is “necessarily conjectural,” because Plaintiffs have “no actual knowledge of the Government’s” “targeting practices,” id. at 1148–49. Instead of adequately pleading facts “demonstrating that the communications of their foreign contacts will be targeted,” id. at 1148–49, Plaintiffs “merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired under [Section 702].” Id. at 1148. This is insufficient to confer standing.30
Moreover, even if Plaintiffs had plausibly alleged that their foreign contacts’ or their own communications were retained, they would still need to show that their injury is fairly traceable to Upstream surveillance. See id. at 1147. Because Plaintiffs can only speculate whether any asserted acquisition occurred via Upstream collection as opposed to PRISM, some other authority under FISA, or Executive Order 12333, they cannot demonstrate that their injury is “fairly traceable” to the Government conduct they seek to challenge. See id. at 1149.
B. NACDL Has Not Established Its Standing to Sue on Behalf of its Members. In contrast to the other eight Plaintiffs, NACDL alleges the retention, analysis and dissemination of its individual members’ communications, and purports to sue on their behalf. 30 Indeed, Plaintiffs’ allegations here often contain less specificity than the declarations found wanting in Amnesty International. Compare Am. Compl. ¶¶ 130–134 (describing in general terms the types of foreign individuals and entities with whom Human Rights Watch (“HRW”) communicates about “topics that fall within the FAA’s expansive definition of ‘foreign intelligence information’”), with Mariner Decl. ¶¶ 4–9 (filed in Amnesty International) (attached as Exh. 5, hereto) (identifying particular individuals with whom an HRW Program Director communicates abroad, such as HRW’s Pakistan researcher based in Europe, and specifying putative subjects of foreign-intelligence information, such as the CIA rendition program).
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Am. Compl. ¶¶ 7, 115–16. NACDL asserts that its members’ communications are likely retained by the NSA because they engage in communications with or about “likely targets” of Upstream surveillance regarding topics that could be considered foreign-intelligence information. Id. ¶ 115. It also contends that the communications of defense attorneys in prosecutions where the Government has acknowledged use of FAA surveillance are “especially likely” to be retained as part of the Upstream collection process, id. ¶ 116, and identifies one of its members, Joshua L. Dratel, as one such attorney whose communications are “especially likely” to be retained by the NSA, id. ¶ 127. As discussed in § III.A, above, such speculative assertions are insufficient for purposes of establishing that any of NACDL’s members, including Mr. Dratel, have suffered injury traceable to Upstream surveillance. Amnesty Int’l, 133 S. Ct. at 1149. Thus, NACDL fails to establish its associational standing to sue on its members’ behalf.
An organization “can assert standing . . . as a representative of its members” if: “(1) its own members would have standing to sue in their own right; (2) the interests the organization seeks to protect are germane to the organization’s purpose; and (3) neither the claim nor the relief sought requires the participation of individual members in the lawsuit.” Southern Walk, 713 F.3d at 182, 183–84 (citations omitted). Regarding the first prong of this test, “[t]he Supreme Court has clarified that to show that its members would have standing, an organization must ‘make specific allegations establishing that at least one identified member ha[s] suffered or [will] suffer harm.’” Id. at 184 (quoting Summers, 555 U.S. at 498 (emphasis by the Court of Appeals)). This aspect of the test is grounded in “the constitutional requirement of a case or controversy,” United Food & Commercial Workers v. Brown Group, Inc., 517 U.S. 544, 554–55 (1996), and is thus “an Article III necessity for an association’s representative suit,” id. at 555.
In accordance with that requirement, the Supreme Court in Summers specifically rejected a theory of representational standing based on “a statistical probability that some of [an
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organization’s] members are threatened with concrete injury.” 555 U.S. at 497. In particular, the Court held that an uncontested showing that “it [was] possible—perhaps even likely—that one individual [would] meet all of [the] criteria” for standing “[did] not suffice.” Id. at 499.
Yet that is the very approach NACDL urges here. NACDL alleges only “a substantial likelihood that the NSA retains, reads, and disseminates international communications of NACDL’s members,” Am. Compl. ¶ at 115 (emphasis added), and refers to a group of members, including Mr. Dratel, that it claims “is especially likely to have [its] communications retained, read, and disseminated in the course of Upstream surveillance,” id. ¶ 116 (emphasis added); see also id. ¶ 127. Claiming organizational standing on the basis of such allegations is contrary to the Supreme Court’s express instructions in Summers: even if it is “likely” that some member will meet the criteria for standing, “that speculation does not suffice,” 555 U.S. at 499; an organization must identify specific members “who have suffered the requisite harm.” Id.
Moreover, in support of its claim generally that its members’ communications are retained by the NSA as part of the Upstream process, NACDL relies on assertions regarding its members’ communications with “likely targets” of surveillance about subjects that could be considered foreign-intelligence information, Am. Compl. ¶ 115, allegations that, as discussed in § III.A, above, were rejected as inadequate in Amnesty International. For this reason, as well, NACDL’s allegations are insufficient to establish its members’ standing, and therefore its own.
NACDL next contends that the communications of a particular group of its members, defense attorneys (including Mr. Dratel) “who represent individuals in criminal prosecutions in which the government has acknowledged its use [of] FAA surveillance,” are “especially likely” to be retained by the NSA as part of the Upstream collection process. Am. Compl. ¶ 116. But this asserted basis for the standing of NACDL’s members likewise rests on a “speculative chain of possibilities,” 133 S. Ct. at 1150, similar to that rejected in Amnesty International.
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To begin with, “FAA surveillance” is not synonymous with Upstream collection. Rather, under Section 702 of the FAA, the NSA may use two different means to acquire a target’s electronic communications, either Upstream collection of communications as they transit the Internet “backbone,” or the acquisition of communications directly from U.S.-based providers as part of its PRISM collection. See supra, at 10. Indeed, in a 2011 opinion, the FISC observed that the “vast majority of communications” acquired pursuant to Section 702, more than 90 percent, were acquired using PRISM collection, rather than Upstream. Oct. 3, 2011 FISC Op. at 29-30. Thus, in any case where the Government provided notice of use of FAA-derived information, the information may have been acquired through PRISM or Upstream, yet to establish its standing, NACDL “would . . . need to show that [its members’] injury is fairly traceable to [the surveillance program that it challenges here]. But, because [NACDL and its members] can only speculate as to whether any (asserted) interception [was] under [Upstream] or [PRISM], they cannot satisfy the ‘fairly traceable’ requirement.” Id.
Additionally, just as in Amnesty International, Plaintiffs here “have no actual knowledge of the Government’s . . . targeting practices” employed in Upstream surveillance, 133 S. Ct. at 1148, and thus can “merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired” under the program they challenge. Id. Contrary to Plaintiffs’ allegations that the targeted selectors “in several of these cases” have been identified in press reports or other publicly-available documents, see Am. Compl. ¶ 116, the Government’s targeting practices employed in Upstream surveillance remain classified. Without true knowledge regarding the targets of the Government’s surveillance, NACDL and its members can only speculate that they communicated with or about a target such that their communications would have been acquired. Likewise, NACDL and its members can only
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speculate that an individual who was a target of surveillance at one time remained a target by the time defense counsel began working on the case in which that individual was involved.
All the same is true regarding Mr. Dratel, on whom NACDL focuses in an apparent effort to satisfy the requirement of identifying at least one of its members who has suffered injury in fact. See Summers, 555 U.S. at 498. Although the claims regarding the alleged surveillance of his communications are emphatic, see Am. Compl. ¶ 127, at bottom, they are no different from the speculative claims discussed above. Just like NACDL’s other members, Mr. Dratel can only guess at whether the particular individuals with whom he communicates are targets of surveillance at all, much less Upstream surveillance. Because the allegations about Mr. Dratel fail to establish that he has standing in his own right, they fail to establish NACDL’s organizational standing as well. Summers, 555 U.S. at 498.
The Amended Complaint refers to a client of Mr. Dratel’s “who has received notice of FAA surveillance.” Id. ¶ 121. Defendants have identified two cases to which this allegation may refer: Unites States v. Mohamud, and United States v. Hasbajrami.31 In neither case did the Government indicate whether the information at issue was derived from Upstream or PRISM collection.32 Additionally, contrary to Plaintiffs’ suggestion that targeted selectors were disclosed in these cases, see Am. Compl. ¶ 116, the Government has not declassified any of the targeting procedures or selectors in question, or even whether the defendants were the targets of the surveillance or merely subjects of incidental collection. (In any event, NACDL fails to
31 See Government’s Supplemental FISA Notification, Unites States v. Mohamud, 3:10cr-00475 (D. Or.), ECF No. 486 (Nov. 19, 2013) (Exh. 6, hereto) (“Mohamud Notice”); Letter re Supplemental Notification, United States v. Hasbajrami, 1:11-cr-00623 (E.D.NY.), ECF No. 65 (Feb. 24, 2014) (Exh. 7, hereto) (“Hasbajrami Notice”).
32 Indeed, in Hasbajrami, counsel for Plaintiffs here wrote, as amicus curiae: “the government conducts two types of surveillance under the FAA: PRISM surveillance and Upstream surveillance . . . . The government has not disclosed which specific program or programs it relied upon in this case.” Brief of Amici Curiae [ACLU] and Electronic Frontier Found. in Supp. of Def.’s Mot. to Suppress, 11-cr-00623, ECF No 94-1 (Exh. 8, hereto) at 7.
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explain how the alleged identification of the selectors reveals whether Upstream or PRISM collection was employed.) The notices at issue also provide no information regarding the nature of the FAA-derived information. See Mohamud Notice at 1–2; Hasbajrami Notice at 1–2. There is simply no non-speculative basis on which to conclude that Mr. Dratel (or any other particular individual) was subject to Upstream surveillance based on his involvement in these proceedings.
Plaintiffs also aver that Mr. Dratel previously represented a client “where officials have told Congress that the government used FAA surveillance in the course of its investigation.” Am. Compl. ¶ 121. Plaintiffs appears to be referring to Hasanoff v. United States and the Congressional testimony given by Sean Joyce, then-Deputy Director of the FBI, regarding FAAobtained communications between an extremist in Yemen and a person in the United States, other than Mr. Dratel’s client, Mr. Hasanoff. See Mem. of Law, Hasanoff v. United States, 10 Cr. 162 (S.D.N.Y.), ECF No. 208 (Exh. 9, hereto) at 10–11. Nothing in that testimony suggests that either Mr. Dratel, or his client, Mr. Hasanoff, were subject to FAA surveillance. See id.33
In sum, Plaintiffs’ allegations do not establish that any member of NACDL—including Mr. Dratel—has sustained an injury that is “fairly traceable to” Upstream surveillance. 133 S. Ct. at 1150. Under Amnesty International and Summers, this Court should reject NACDL’s assertion of representational standing. IV. PLAINTIFFS’ ALLEGATIONS THAT UPSTREAM COLLECTION
“UNDERMINES [THEIR] ABILITY TO CONDUCT [THEIR] WORK” ALSO FAIL TO ESTABLISH AN INJURY SUFFICIENT TO CONFER STANDING. Plaintiffs’ and Mr. Dratel’s claims that Upstream collection inhibits their ability to conduct their work are also inadequate under Amnesty International to establish standing. The 33 The Amended Complaint refers to three other clients of Mr. Dratel, Wadith El Hage, David Hicks, and Baasaly Moalin, but NACDL does not allege that any of those individuals were subject to Upstream or even FAA surveillance. Am. Compl. ¶ 120. Indeed, in Mr. Moalin’s case, the Government acknowledged using a different provision of FISA (50 U.S.C. § 1861) to obtain business records containing telephony metadata, not FAA surveillance. See United States v. Moalin, 2013 WL 6079518, at *5 (S.D. Cal. Nov. 18, 2013).
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injuries Plaintiffs claim to suffer as a result of Upstream collection—the adoption of costly measures to minimize the risk of surveillance and the reduced likelihood that third parties will share sensitive information with them for fear of surveillance—arise from speculation as to how Upstream collection operates as well as the subjectively held, unsubstantiated fears of third parties. Such injuries are not fairly traceable to Upstream collection for Article III purposes.
Plaintiffs and Mr. Dratel first allege that Upstream collection injures them because it requires them to adopt taxing measures to reduce the risk that their communications will be acquired. To this end, Plaintiffs allege that they “have had to take burdensome and sometimes costly measures to minimize the chance that the confidentiality of their sensitive information will be compromised,” such as developing new protocols for transmitting information, traveling long distances to collect information, and in some circumstances forgoing particularly sensitive communications altogether. See Am. Compl. ¶¶ 75, 128. As a result, Plaintiffs and Mr. Dratel emphasize that they are unable to gather and relay information, represent their clients, and engage in domestic and international advocacy as they would in the absence of the feared surveillance. See id. ¶ 76; see also id. ¶¶ 108, 109, 118, 128, 129, 134, 139, 144, 149, 154, 159, 164. Remarkably, Plaintiffs, which allegedly communicate with people in repressive countries that would seek to punish or retaliate against them for their activities, claim that it is the possibility of surveillance by the United States that has led them to take expensive precautions against the interception of their communications.34 But even accepting these allegations at face value, they are insufficient, under Amnesty International, to confer standing.
34 To be precise, Plaintiffs allege that they have taken these burdensome precautions only “in part [due] to NSA surveillance, including Upstream surveillance,” Am. Compl. ¶¶ 109, 118, 128, 134, 139, 144, 149, 154, 159, 164, thus acknowledging that there are other reasons why they have taken these precautions, and raising the question whether this alleged injury is redressable by enjoining alleged Upstream surveillance of their communications.
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In Amnesty International, the plaintiffs advanced and the Supreme Court rejected essentially indistinguishable arguments. See 133. S. Ct. at 1150–51 (“[Plaintiffs] assert that they are suffering ongoing injuries . . . because the risk of surveillance under § 1881a requires them to take costly and burdensome measures to protect the confidentiality of their communications.”). In dismissing these arguments, the Court explained that plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Id. at 1151. Thus, “[a]ny ongoing injuries that [plaintiffs] are suffering are not fairly traceable to [Section 702].” Id.
The Court’s reasoning applies directly to Plaintiffs’ and Mr. Dratel’s claims regarding Upstream collection. Their alleged adoption of costly measures to minimize the chance of their communications being acquired by Upstream collection is a self-inflicted injury based on a purely speculative threat. See id. at 1151–52. Because “the costs that they have incurred to avoid” such scrutiny “are simply the product of their fear of surveillance,” any resulting injures are “insufficient to create standing.” Id. at 1152. Indeed, “[i]f the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear.” Id. at 1151. Thus, Amnesty International compels the conclusion that voluntary expenditures motivated by fears of hypothetical surveillance are an insufficient basis for Article III standing.
Plaintiffs and Mr. Dratel next allege that “ongoing government surveillance, including Upstream surveillance,” inhibits their ability to conduct their work because it “reduces the likelihood that clients, users, journalists, witnesses, experts, civil society organizations, foreign government officials, victims of human rights abuses, and other individuals will share sensitive information with Plaintiffs.” Am. Compl. ¶ 76; see also id. ¶¶ 89, 98, 108, 109, 110, 118, 128, 129, 134, 139, 144, 149, 154, 159, 164. The Court in Amnesty International disposed of the
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precise claim that “third parties might be disinclined to speak with [the plaintiffs] due to a fear of surveillance” as insufficient to confer standing. 133 S. Ct. at 1152 n.7. In so doing, the Court reasoned that even if such an assertion were factual, it would “not establish an injury that [was] fairly traceable” to the challenged statute, because it was “based on third parties’ subjective fear of surveillance.” Id. (citing Laird v. Tatum, 408 US. 1, 10–14 (1972)).
The Court’s reasoning in Amnesty International controls here. Hypothetical assertions of a “chill” upon the willingness of third parties to communicate with Plaintiffs or Mr. Dratel “do not establish injury that is fairly traceable to” Upstream collection “because they are based on third parties’ subjective fear of surveillance,” and not on the actual operation of the program. Id. at 1152 n.7. And, Plaintiffs’ mere allegation of a “reduced likelihood” that third parties will share information with them is insufficient to plausibly establish that such harm is occurring in the first place. The Amended Complaint contains no factual support for Plaintiffs’ and Mr. Dratel’s conjecture that their third-party contacts have in fact declined or are reluctant to communicate with them because of Upstream collection. As the Supreme Court explained, “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Id. at 1152 (citing Laird, 408 U.S. at 13–14). Thus, the subjective fears of third parties and any alleged accompanying consequences upon Plaintiffs do not establish Plaintiffs’ standing.
CONCLUSION For all the foregoing reasons, the Plaintiffs’ claims should be dismissed for lack of subject-matter jurisdiction.
Dated: August 6, 2015
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Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General JOSEPH H. HUNT Director, Federal Programs Branch ANTHONY J. COPPOLINO Deputy Branch Director JAMES J. GILLIGAN Special Litigation Counsel
/s/ James J. Gilligan RODNEY PATTON JULIA A. BERMAN CAROLINE J. ANDERSON Trial Attorneys U.S Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 6102 Washington, D.C. 20044 Phone: (202) 514-3358 Fax: (202) 616-8470 james.gilligan@usdoj.gov Counsel for Defendants
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UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

WIKIMEDIA FOUNDATION 149 New Montgomery Street, 6th Floor San Francisco, CA 94105;
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS 1660 L Street, NW, 12th Floor Washington, DC 20036;
HUMAN RIGHTS WATCH 350 Fifth Avenue, 34th Floor New York, NY 10118;
AMNESTY INTERNATIONAL USA 5 Pennsylvania Plaza, 16th Floor New York, NY 10001;
PEN AMERICAN CENTER 588 Broadway, Suite 303 New York, NY 10012;
GLOBAL FUND FOR WOMEN 222 Sutter Street, Suite 500 San Francisco, CA 94108;
THE NATION MAGAZINE 33 Irving Place, 8th Floor New York, NY 10003;
THE RUTHERFORD INSTITUTE P.O. Box 7482 Charlottesville, VA 22906;
WASHINGTON OFFICE ON LATIN AMERICA 1666 Connecticut Avenue, NW, Suite 400 Washington, DC 20009,
Plaintiffs,
v.
NATIONAL SECURITY AGENCY / CENTRAL SECURITY SERVICE

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Civil Action No. 15-cv-00662-TSE
Hon. T. S. Ellis, III

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9800 Savage Road Fort Meade, Anne Arundel County, MD 20755;
ADM. MICHAEL S. ROGERS, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service, National Security Agency / Central Security Service 9800 Savage Road Fort Meade, Anne Arundel County, MD 20755;
OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE Washington, DC 20511;
JAMES R. CLAPPER, in his official capacity as Director of National Intelligence, Office of the Director of National Intelligence Washington, DC 20511;
DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Washington, DC 20530;
LORETTA E. LYNCH, in her official capacity as Attorney General of the United States, Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530,
Defendants.

Deborah A. Jeon (Bar No. 06905) jeon@aclu-md.org David R. Rocah (Bar No. 27315) rocah@aclu-md.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND 3600 Clipper Mill Rd., #350 Baltimore, MD 21211 Phone: (410) 889-8555 Fax: (410) 366-7838

Patrick Toomey (pro hac vice) ptoomey@aclu.org Jameel Jaffer (pro hac vice) jjaffer@aclu.org Alex Abdo (pro hac vice) aabdo@aclu.org Ashley Gorski (pro hac vice) agorski@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION

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June 19, 2015

125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654
Charles S. Sims (pro hac vice) csims@proskauer.com David A. Munkittrick (pro hac vice) dmunkittrick@proskauer.com John M. Browning (pro hac vice) jbrowning@proskauer.com PROSKAUER ROSE LLP Eleven Times Square New York, NY 10036 Phone: (212) 969-3000 Fax: (212) 969-2900

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. This lawsuit challenges the suspicionless seizure and searching of internet traffic
by the National Security Agency (“NSA”) on U.S. soil. The NSA conducts this surveillance, called “Upstream” surveillance, by tapping directly into the internet backbone inside the United States—the 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 the course of this surveillance, the NSA is seizing Americans’ communications en masse while they are in transit, and it is searching the contents of substantially all international text-based communications—and many domestic communications as well—for tens of thousands of search terms. The surveillance exceeds the scope of the authority that Congress provided in the FISA Amendments Act of 2008 (“FAA”) and violates the First and Fourth Amendments. Because it is predicated on programmatic surveillance orders issued by the Foreign Intelligence Surveillance Court (“FISC”) in the absence of any case or controversy, the surveillance also violates Article III of the Constitution.
2. Plaintiffs are educational, legal, human rights, and media organizations that collectively engage in more than a trillion sensitive international communications over the internet each year. Plaintiffs communicate with, among many others, journalists, clients, experts, attorneys, civil society organizations, foreign government officials, and victims of human rights abuses. Plaintiff Wikimedia Foundation communicates with the hundreds of millions of individuals who visit Wikipedia webpages to read or contribute to the vast repository of human knowledge that Wikimedia maintains online. The ability to exchange information in confidence, free from warrantless government monitoring, is essential to each of
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the Plaintiffs’ work. The challenged surveillance violates Plaintiffs’ privacy and undermines their ability to carry out activities crucial to their missions.
3. Plaintiffs respectfully request that the Court declare the government’s Upstream surveillance to be unlawful; enjoin the government from continuing to conduct Upstream surveillance of Plaintiffs’ communications; and require the government to purge from its databases all of Plaintiffs’ communications that Upstream surveillance has already allowed the government to obtain.
JURISDICTION AND VENUE 4. This case arises under the Constitution and the laws of the United States and presents a federal question within this Court’s jurisdiction under Article III of the Constitution and 28 U.S.C. § 1331. The Court also has jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 702. The Court has authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202. The Court has authority to award costs and attorneys’ fees under 28 U.S.C. § 2412. 5. Venue is proper in this district under 28 U.S.C. § 1391(b)(2), (e)(1).
PLAINTIFFS 6. Wikimedia Foundation (“Wikimedia”) is a non-profit organization based in San Francisco, California, that operates twelve free-knowledge projects on the internet. Wikimedia’s mission is to empower people around the world to collect and develop free educational content. Wikimedia does this by developing and maintaining “wiki”-based projects, and by providing the full contents of those projects to individuals around the world free of charge. Wikimedia sues on its own behalf and on behalf of its staff and users.
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7. The National Association of Criminal Defense Lawyers (“NACDL”) is a membership organization based in Washington, D.C. NACDL advocates for rational and humane criminal justice policies at all levels of federal, state, and local government, and seeks to foster the integrity, independence, and expertise of the criminal defense profession. NACDL sues on its own behalf and on behalf of its members.
8. Human Rights Watch (“HRW”) is a non-profit, non-governmental human rights organization headquartered in New York City with offices around the world. It reports on abuses in all regions of the globe and advocates for the protection of human rights. HRW researchers conduct fact-finding investigations into human rights abuses in over 90 countries and publish their findings in hundreds of reports, multi-media products, and other documents every year, as well as through social media accounts. HRW sues on its own behalf and on behalf of its staff.
9. Amnesty International USA (“AIUSA”), headquartered in New York City, is the largest country section of Amnesty International, with hundreds of thousands of members and other supporters who work for human rights, including through national online networks, high schools, colleges, and community groups. AIUSA sues on its own behalf and on behalf of its staff and members.
10. PEN American Center (“PEN”) is a human rights and literary association based in New York City. Committed to the advancement of literature and the unimpeded flow of ideas and information, PEN fights for freedom of expression; advocates on behalf of writers harassed, imprisoned, and sometimes killed for their views; and fosters international exchanges, dialogues, discussions, and debates. PEN sues on its own behalf and on behalf of its staff and members.
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11. Global Fund for Women (“GFW”) is a non-profit grantmaking foundation based in San Francisco, California, and New York City. GFW advances women’s human rights worldwide by providing funds to women-led organizations that promote the economic security, health, safety, education, and leadership of women and girls. GFW sues on its own behalf and on behalf of its staff.
12. The Nation Magazine (“The Nation”), which is published by The Nation Company, LLC, and based in New York City, is America’s oldest weekly magazine of opinion, news, and culture. It serves as a critical, independent voice in American journalism, exposing abuses of power through its investigative reporting, analysis, and commentary. In recent years, The Nation’s journalists have reported on a wide range of issues relating to international affairs, including the wars in Iraq and Afghanistan, the Israel–Palestine conflict, protest activities in China and elsewhere in East Asia, and conflicts in Africa and Latin America. The Nation sues on behalf of itself, its staff, and certain of its contributing journalists.
13. The Rutherford Institute (“Rutherford”) is a civil liberties organization based in Charlottesville, Virginia, committed to protecting the constitutional freedoms of Americans and the human rights of all people. Rutherford provides free legal services in defense of civil liberties and educates the public about constitutional and human rights issues. It also advocates on behalf of individuals abroad whose rights are threatened by foreign governments. Rutherford sues on its own behalf and on behalf of its staff.
14. The Washington Office on Latin America (“WOLA”) is a non-profit, nongovernmental organization based in Washington, D.C., that conducts research, advocacy, and education designed to advance human rights and social justice in the Americas. WOLA sues on its own behalf and on behalf of its staff.
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DEFENDANTS 15. Defendant National Security Agency / Central Security Service (“NSA”), headquartered in Fort Meade, Maryland, is the agency of the United States government responsible for conducting the surveillance challenged in this case. 16. Defendant Adm. Michael S. Rogers is the Director of the NSA and the Chief of the Central Security Service. Defendant Rogers is sued in his official capacity. 17. Defendant Office of the Director of National Intelligence (“ODNI”) is the agency of the United States government responsible for directing and coordinating the activities of the intelligence community, including the NSA. 18. Defendant James R. Clapper is the Director of National Intelligence (“DNI”). Together with the Attorney General, the DNI authorizes warrantless surveillance of U.S. citizens’ and residents’ international communications under the FAA, including Upstream surveillance. Defendant Clapper is sued in his official capacity. 19. Defendant Department of Justice (“DOJ”) is one of the agencies of the United States government responsible for authorizing and overseeing surveillance conducted pursuant to the FAA, including Upstream surveillance. 20. Defendant Loretta E. Lynch is the Attorney General of the United States. Together with the DNI, the Attorney General authorizes warrantless surveillance of U.S. citizens’ and residents’ international communications under the FAA, including Upstream surveillance. Defendant Lynch is sued in her official capacity.
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LEGAL AND FACTUAL BACKGROUND The Foreign Intelligence Surveillance Act
21. In 1978, Congress enacted the Foreign Intelligence Surveillance Act (“FISA”) to govern surveillance conducted for foreign intelligence purposes. The statute created the Foreign Intelligence Surveillance Court (“FISC”) and empowered the court to grant or deny government applications for surveillance orders in certain foreign intelligence investigations.
22. Congress enacted FISA after years of in-depth congressional investigation by the committees chaired by Senator Frank Church and Representative Otis Pike, which revealed that the Executive Branch had engaged in widespread warrantless surveillance of United States citizens—including journalists, activists, and members of Congress—“who engaged in no criminal activity and who posed no genuine threat to the national security.”
23. Congress has amended FISA multiple times since 1978. 24. Prior to 2007, FISA generally required the government to obtain an individualized order from the FISC before conducting electronic surveillance on U.S. soil. To obtain a traditional FISA order, the government was required to make a detailed factual showing with respect to both the target of the surveillance and the specific communications facility—often a telephone line or email account—to be monitored. The government was also required to certify that a “significant purpose” of the surveillance was to obtain foreign intelligence information. 50 U.S.C. § 1804(a)(6)(B). 25. The FISC could issue such an order only if it found, among other things, that there was probable cause to believe that “the target of the electronic surveillance is a foreign power or an agent of a foreign power,” and that “each of the facilities or places at which the
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electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.” Id. § 1805(a)(2)(A)–(B).
26. The framework established by FISA remains in effect today, but it has been modified by the FAA to permit the acquisition of U.S. citizens’ and residents’ international communications without probable cause or individualized suspicion, as described below.
The Warrantless Wiretapping Program 27. On October 4, 2001, President George W. Bush secretly authorized the NSA to conduct a program of warrantless electronic surveillance inside the United States. This program, which was known as the President’s Surveillance Program (“PSP”), was reauthorized repeatedly by President Bush between 2001 and 2007. 28. According to public statements by senior government officials, the PSP involved the warrantless interception of emails and telephone calls that originated or terminated inside the U.S. According to then-Attorney General Alberto Gonzales and then-NSA Director General Michael Hayden, NSA “shift supervisors” initiated surveillance when in their judgment there was a “reasonable basis to conclude that one party to the communication [was] a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.” 29. On January 17, 2007, then-Attorney General Alberto Gonzales publicly announced that a judge of the FISC had “issued orders authorizing the Government to target for collection international communications into or out of the United States where there [was] probable cause to believe that one of the communicants [was] a member or agent of al Qaeda or an associated terrorist organization.” The Attorney General further stated that “[a]s a result of
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these orders, any electronic surveillance that was occurring” as part of the PSP would thereafter “be conducted subject to the approval of the Foreign Intelligence Surveillance Court.”
30. In April 2007, when the government sought reauthorization of the FISC’s previous orders, a different judge of the FISC determined that key elements of the government’s request were incompatible with FISA. Following the FISC’s refusal to renew certain portions of its January 2007 orders, executive-branch officials appealed to Congress to amend the statute.
The Protect America Act 31. Congress enacted the Protect America Act (“PAA”) in August 2007. The PAA expanded the executive’s surveillance authority and provided legislative sanction for surveillance that the President had previously been conducting under the PSP. Because of a “sunset” provision, the amendments to FISA made by the PAA expired on February 17, 2008.
The FISA Amendments Act 32. President Bush signed the FISA Amendments Act (“FAA”) into law on July 10, 2008. The FAA radically revised the FISA regime that had been in place since 1978 by authorizing the acquisition without individualized suspicion of a wide swath of communications, including U.S. persons’ international communications, from companies inside the United States.1 33. In particular, the FAA allows the Attorney General and Director of National Intelligence to “authorize jointly, for a period of up to 1 year . . . the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence
1 Plaintiffs use the term “international” to describe communications that either originate or terminate outside the United States, but not both—i.e., communications that are foreign at one end.
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information.” 50 U.S.C. § 1881a(a). The statute requires the Attorney General, in consultation with the Director of National Intelligence, to adopt “targeting procedures” and “minimization procedures,” id. § 1881a(d)–(e), that govern who may be targeted for surveillance by executivebranch employees and how communications are to be handled once intercepted.
34. The FISC’s role in overseeing the government’s surveillance under the statute consists principally of reviewing these general procedures. The FISC never reviews or approves the government’s individual surveillance targets or the facilities it intends to monitor. Rather, when the government wishes to conduct surveillance under the statute, it must certify to the FISC that the court has approved its targeting and minimization procedures or that it will shortly submit such procedures for the FISC’s approval. See id. § 1881a(g), (i). If the government so certifies, the FISC authorizes the government’s surveillance for up to a year at a time. A single such order may result in the acquisition of the communications of thousands of individuals.
35. The effect of the FAA is to give the government sweeping authority to conduct warrantless surveillance of U.S. persons’ international communications. While the statute prohibits the government from intentionally targeting U.S. persons, it authorizes the government to acquire U.S. persons’ communications with the foreigners whom the NSA chooses to target. Moreover the statute does not meaningfully restrict which foreigners the government may target. The statute does not require the government to make any finding—let alone demonstrate probable cause to the FISC—that its surveillance targets are foreign agents, engaged in criminal activity, or connected even remotely with terrorism. The government may target any person for surveillance if it has a reasonable belief that she is a foreigner outside the United States who is likely to communicate “foreign intelligence information”—a term that is
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defined so broadly as to encompass virtually any information relating to the foreign affairs of the United States. Id. §§ 1881a(a), 1801(e). The government may target corporations and associations under the same standard.
36. Thus, though the FAA is nominally concerned with the surveillance of individuals and groups outside the United States, it has far-reaching implications for U.S. persons’ privacy. The targets of FAA surveillance may include journalists, academic researchers, human rights defenders, aid workers, business persons, and others who are not suspected of any wrongdoing. In the course of FAA surveillance, the government may acquire the communications of U.S. citizens and residents with all these persons.
THE GOVERNMENT’S IMPLEMENTATION OF THE FAA 37. The government has implemented the FAA expansively, with significant consequences for Americans’ privacy. The Director of National Intelligence has reported that, in 2014, the government relied on the FAA to target 92,707 individuals, groups, or organizations for surveillance under a single court order. According to the FISC, the government gathered 250 million internet communications under the FAA in 2011 alone—at a time when the NSA had far fewer targets than it has today. Moreover, as described below, that figure does not reflect the far greater number of communications that the NSA searched for references to its targets before discarding them. Intelligence officials have declined to determine, or even estimate, how many of the communications intercepted under the FAA are to, from, or about U.S. citizens or residents. However, opinions issued by the FISC, reports by the President’s Review Group on Intelligence and Communications Technologies and the Privacy and Civil Liberties Oversight Board, and media accounts indicate that FAA
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surveillance results in the wide-ranging and persistent interception of U.S. persons’ communications.
38. In at least one respect, the government has engaged in surveillance that exceeds even the broad authority that Congress granted in the FAA. As described below, the government has interpreted the FAA to allow it to intercept, copy, and review essentially everyone’s internet communications in order to search for identifiers associated with its targets. This intrusive and far-reaching practice has no basis in the statute. The statute authorizes surveillance only of targets’ communications; it does not authorize surveillance of everyone.
Upstream Surveillance of Internet Communications 39. The government conducts at least two kinds of surveillance under the FAA. Under a program called “PRISM,” the government obtains stored and real-time communications directly from U.S. companies—such as Google, Yahoo, Facebook, and Microsoft—that provide communications services to targeted accounts. 40. This case concerns a second form of surveillance, called Upstream. Upstream surveillance involves the NSA’s seizing and searching the internet communications of U.S. citizens and residents en masse as those communications travel across the internet “backbone” in the United States. The internet backbone is the network of high-capacity cables, switches, and routers that facilitates both domestic and international communication via the internet.
Background: Internet Communications 41. The internet is a global network of networks. It allows machines of different types to communicate with each other through a set of intermediating networks. At its most basic level, it consists of (1) computers and the connections between them, (2) the
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communications transmitted to, by, or through those computers and connections, and (3) the
rules that direct the flow of these communications.
42. All communications on the internet are broken into “packets”—discrete chunks
of information that are relatively small. The packets are sent from machine to machine (and
network to network) and may traverse a variety of physical circuits connecting different
machines before reaching their destination. Once the packets that make up a particular
communication reach their final destination, they are reassembled so that the recipient can
“read” the message being sent—whether an email, a webpage, or a video.
43. Internet packets can be thought of in layers. Although computer scientists
describe these layers differently depending on the context, there are three layers relevant here:
x The Networking Layer: The Networking Layer of a packet is like an address block on an envelope. It contains, among other things, the packet’s source and destination addresses. On the internet, addresses are represented as numeric strings known as Internet Protocol (“IP”) addresses. To send a packet from one IP address to another, a computer on the internet creates a packet, addresses the packet with the source and destination IP addresses, and then transmits the packet to a neighboring computer that is closer to the destination. That computer then transmits the packet to another that is closer still to the destination. This process continues until the packet reaches its destination.
x The Transport Layer: The Transport Layer of a packet contains information that allows it to be grouped with other packets that are part of the same session or class of communication. For example, a packet sent using the most common Transport Layer protocol (the Transmission Control Protocol (“TCP”)) contains, among other things, (1) a sequence number, which allows the recipient to reassemble the packets of a communication in order, and (2) source and destination “ports,” which are, in effect, internal addresses used by the sending and receiving computers.
x The Application Layer: The Application Layer of a packet is akin to the inside of an envelope—it contains the actual content of the communications being transmitted. If the content is too large to fit into a single packet, then the Application Layers of several different packets would need to be reassembled in order for the recipient to be able to read or interpret the communication. For example, HTTP is the Application Layer protocol used to transmit webpages. Because most websites exceed the size of a single internet packet, their contents are transmitted in a series of HTTP packets that must be reassembled before display. Other common Application Layer protocols that, like
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HTTP, contain text-searchable data are SMTP (for the sending of email), IMAP and POP (for the receiving of email), and DNS (which allows computers to learn a website’s IP address based on its domain name). 44. In some cases, internet packets stay on a single network (e.g., two machines in the same office talking to each other), but in other cases, the packets may traverse dozens of intermediate networks before reaching their destination. The network path can change radically and dynamically as devices and connections are added or removed from the network. 45. Often, there are multiple routes that an internet packet could follow to reach its destination. Some connected networks may be faster, cheaper, or have a wider reach. Moreover, many high-bandwidth connections route traffic based on complex contractual arrangements, which take into account factors such as cost, the type of traffic, or the balance between inbound and outbound traffic. Networks that are strategically well-connected and have high bandwidth are likely to be used for transit by packets coming from other, less-wellconnected networks. These more strategically connected networks, which often link large metropolitan areas, are collectively referred to as the internet “backbone.” The overwhelming majority of backbone links are fiber-optic cables, because fiber-optic connections have high bandwidth and can distribute data over long distances. 46. The internet backbone includes the approximately 49 international submarine cables that carry internet communications into and out of the United States and that land at approximately 43 different points within the country. The vast majority of international traffic into and out of the United States traverses this limited number of submarine cables.
Upstream Surveillance 47. The NSA conducts Upstream surveillance by connecting surveillance devices to multiple major internet cables, switches, and routers on the internet backbone inside the United
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States. These access points are controlled by the country’s largest telecommunications
providers, including Verizon Communications, Inc. and AT&T, Inc. In some or all instances,
aspects of Upstream surveillance may be conducted by the telecommunications providers on
the government’s behalf.
48. Upstream surveillance is intended to enable the comprehensive monitoring of
international internet traffic. With the assistance of telecommunications providers, the NSA
intercepts a wide variety of internet communications, including emails, instant messages,
webpages, voice calls, and video chats. It copies and reviews substantially all international
emails and other “text-based” communications—i.e., those whose content includes searchable
text.
49. More specifically, Upstream surveillance encompasses the following processes,
some of which are implemented by telecommunications providers acting at the NSA’s
direction:
x Copying. Using surveillance devices installed at key access points along the internet backbone, the NSA makes a copy of substantially all international text-based communications—and many domestic ones—flowing across certain high-capacity cables, switches, and routers. The copied traffic includes email, internet-messaging communications, web-browsing content, and search-engine queries.
x Filtering. The NSA attempts to filter out and discard some wholly domestic communications from the stream of internet data, using IP filters for instance, while preserving international communications. The NSA’s filtering out of domestic communications is incomplete, however, for multiple reasons. Among them, the NSA does not eliminate bundles of domestic and international communications that transit the internet backbone together. Nor does it eliminate domestic communications that happen to be routed abroad.
x Content Review. The NSA reviews the copied communications—including their full content—for instances of its search terms. The search terms, called “selectors,” include email addresses, phone numbers, IP addresses, and other identifiers that NSA analysts believe to be associated with foreign intelligence targets. Again, the NSA’s targets are not limited to suspected foreign agents and terrorists, nor are its selectors limited to individual email addresses. The NSA may monitor or “task” selectors used by large
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groups of people who are not suspected of any wrongdoing—such as the IP addresses of computer servers used by hundreds of different people. x Retention and Use. The NSA retains all communications that contain selectors associated with its targets, as well as those that happened to be bundled with them in transit. As discussed further below, NSA analysts may read, query, data-mine, and analyze these communications with few restrictions, and they may share the results of those efforts with the FBI, including in aid of criminal investigations. 50. One aspect of the processes outlined above bears emphasis: Upstream surveillance is not limited to communications sent or received by the NSA’s targets. Rather, it involves the surveillance of essentially everyone’s communications. The NSA systematically examines the full content of substantially all international text-based communications (and many domestic ones) for references to its search terms. In other words, the NSA copies and reviews the communications of millions of innocent people to determine whether they are discussing or reading anything containing the NSA’s search terms. The NSA’s practice of reviewing the content of communications for selectors is sometimes called “about” surveillance. This is because its purpose is to identify not just communications that are to or from the NSA’s targets but also those that are merely “about” its targets. This is the digital analogue of having a government agent open every piece of mail that comes through the post to determine whether it mentions a particular word or phrase. Most pieces of mail—or email— will contain nothing of interest, but the government must still look through each one to find out. Although it could do so, the government makes no meaningful effort to avoid the interception of communications that are merely “about” its targets; nor does it later purge those communications. 51. Prior to the summer of 2013, the government had not publicly disclosed the fact that, under the FAA, it routinely reviews communications that are neither to nor from its targets. As the Privacy and Civil Liberties Oversight Board observed, “The fact that the
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government engages in such collection is not readily apparent from the face of the statute, nor was collection of information ‘about’ a target addressed in the public debate preceding the enactment of FISA or the subsequent enactment of the FISA Amendments Act.”
Targeting and Minimization Procedures 52. As indicated above, the FAA requires the government to adopt targeting and minimization procedures that govern who may be targeted for surveillance by executive-branch employees and how communications are to be handled once intercepted. These procedures are extremely permissive, and to the extent they impose limitations, those restrictions are riddled with exceptions. 53. Nothing in the targeting procedures meaningfully constrains the government’s selection of foreign targets. Nor do the targeting procedures require the government to take measures to avoid intercepting U.S. persons’ international communications. The targeting procedures expressly contemplate “about” surveillance, and thus the interception and review of communications between non-targets. 54. The minimization procedures are equally feeble. They impose no affirmative obligation on the NSA to promptly identify and purge U.S. persons’ communications once they have been obtained. Rather, they allow the NSA to retain communications gathered via Upstream surveillance for as long as three years by default. It can retain those communications indefinitely if the communications are encrypted; if they are found to contain foreign intelligence information (again, defined broadly); or if they appear to be evidence of a crime. Indeed, the NSA may even retain and share wholly domestic communications obtained through the accidental targeting of U.S. persons if the NSA determines that the communications contain “significant foreign intelligence information” or evidence of a crime. The minimization
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procedures also expressly contemplate that the NSA will intercept, retain, and disseminate attorney-client privileged communications. The minimization procedures bar the NSA from querying Upstream data using identifiers associated with specific U.S. persons, but they do not otherwise prohibit the NSA from conducting queries designed to reveal information to, from, or about U.S. persons.
The Surveillance of Plaintiffs 55. Plaintiffs are educational, legal, human rights, and media organizations. Their work requires them to engage in sensitive and sometimes privileged communications, both international and domestic, with journalists, clients, experts, attorneys, civil society organizations, foreign government officials, and victims of human rights abuses, among others. 56. By intercepting, copying, and reviewing substantially all international text-based communications—and many domestic communications as well—as they transit telecommunications networks inside the United States, the government is seizing and searching Plaintiffs’ communications in violation of the FAA and the Constitution. 57. The conclusion that the government is seizing and searching Plaintiffs’ communications is well-founded for at least four reasons. 58. First, the sheer volume of Plaintiffs’ communications makes it virtually certain that the NSA has intercepted, copied, and reviewed at least some of their communications. In the course of a year, Plaintiffs collectively engage in more than one trillion international internet communications. As explained further below, Upstream surveillance could achieve the government’s stated goals only if it entailed the copying and review of a large percentage of international text-based traffic. However, even if one assumes a 0.00000001% chance—one one-hundred millionth of one percent—of the NSA copying and reviewing any particular
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communication, the odds of the government copying and reviewing at least one of the Plaintiffs’ communications in a one-year period would be greater than 99.9999999999%.
59. In reality, this calculation understates the likelihood that the NSA has intercepted, copied, and reviewed Plaintiffs’ communications, because large swaths of internet traffic that are not amenable to the text-based searches conducted in the course of Upstream surveillance and are likely of no foreign-intelligence interest to the government. By some estimates, for example, two-thirds of internet traffic consists of video traffic. The NSA could readily configure its surveillance equipment to ignore that traffic, or at least the significant portions of it (e.g., Netflix traffic) that are almost certainly of no interest. Because of the substantial efficiency gains to be had, it is extremely likely that the government engages in this kind of filtering, allowing it to more comprehensively monitor text-searchable traffic like that of Plaintiffs.
60. Second, the geographic distribution of Plaintiffs’ contacts and communications across the globe makes it virtually certain that the NSA has intercepted, copied, and reviewed Plaintiffs’ communications. As noted above, the internet backbone includes the approximately 49 international submarine cables carrying the vast majority of internet traffic into and out of the United States. It also includes the limited number of high-capacity terrestrial cables that carry traffic between major metropolitan areas within the United States, or between the United States and Canada or Mexico. The junctions where these backbone cables meet are in essence “chokepoints”—because almost all international internet traffic (as well as a significant share of domestic traffic) flows through one or more of them. Prime examples are the points where international submarine cables come ashore. The government has acknowledged using
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Upstream surveillance to monitor communications at “international Internet link[s]” on the internet backbone.
61. Given the relatively small number of international chokepoints, the immense volume of Plaintiffs’ communications, and the fact that Plaintiffs communicate with individuals in virtually every country on earth, Plaintiffs’ communications almost certainly traverse every international backbone link connecting the United States with the rest of the world.
62. Third, and relatedly, in order for the NSA to reliably obtain communications to, from, or about its targets in the way it has described, the government must be copying and reviewing all the international text-based communications that travel across a given link. That is because, as a technical matter, the government cannot know beforehand which communications will contain selectors associated with its targets, and therefore it must copy and review all international text-based communications transiting that circuit in order to identify those of interest. As the Privacy and Civil Liberties Oversight Board explained with respect to Upstream surveillance, “Digital communications like email, however, enable one, as a technological matter, to examine the contents of all transmissions passing through collection devices and acquire those, for instance, that contain a tasked selector anywhere within them.” Because backbone cables carry vast amounts of internet traffic, the number of communications whose contents will be copied and reviewed will be enormous, regardless of how many the government ultimately retains.
63. There is an even more basic reason that, in conducting Upstream surveillance, the government must be monitoring all the international text-based communications that travel across a given link. To search the contents of any text-based communication for instances of the NSA’s “selectors” as that communication traverses a particular backbone link, the
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government must first copy and reassemble all of the packets that make up that communication. Those packets travel independently of one another, intermingled with packets of other communications in the stream of data. Where the government seeks to identify communications to, from, or about its many targets, as it does using Upstream surveillance, the packets of interest cannot be segregated from other, unrelated packets in advance. Rather, in order to reliably intercept the communications it seeks, the government must first copy all such packets traversing a given backbone link, so that it can reassemble and review the transiting communications in the way it has described.
64. In short, for every backbone link that the NSA monitors using Upstream surveillance, the monitoring must be comprehensive in order for the government to accomplish its stated goals. Accordingly, even if the NSA conducts Upstream surveillance on only a single internet backbone link, it must be intercepting, copying, and reviewing at least those communications of Plaintiffs traversing that link. In fact, however, the NSA has confirmed that it conducts Upstream surveillance at more than one point along the internet backbone, through the compelled assistance of multiple major telecommunications companies.
65. Fourth, given the way the government has described Upstream surveillance, it has a strong incentive to intercept communications at as many backbone chokepoints as possible. The government’s descriptions of Upstream surveillance make clear that the government is interested in obtaining, with a high degree of confidence, all international communications to, from, or about its targets. For example, the Privacy and Civil Liberties Oversight Board has described the use of Upstream surveillance to collect “about” communications as “an inevitable byproduct of the government’s efforts to comprehensively acquire communications that are sent to or from its targets.” And it has said about Upstream
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surveillance more generally that its “success . . . depends on collection devices that can reliably acquire data packets associated with the proper communications.”
66. If the government’s aim is to “comprehensively” and “reliably” obtain communications to, from, and about targets scattered around the world, it must conduct Upstream surveillance at many different backbone chokepoints. That is especially true because the communications of individual targets may take multiple paths when entering or leaving the United States. When two people communicate in real-time, the communications they exchange frequently take different routes across the internet backbone, even though the end-points are the same. In other words, in the course of a single exchange, the communications from a target frequently follow a different path than those to the target. Relatedly, a target’s location may vary over time, as do the network conditions that determine a given communication’s path from origin to destination. As a result, a target’s communications may traverse one backbone cable or chokepoint at one moment, but a different one later. In fact, as the Privacy and Civil Liberties Oversight Board observed, even a single email “can be broken up into a number of data packets that take different routes to their common destination.” Because of these variables, Upstream surveillance would be comprehensive only if it were implemented at a number of backbone chokepoints.
67. For the four reasons stated above, it is a virtual certainty that the NSA is intercepting, copying, and reviewing Plaintiffs’ communications.
68. This conclusion is corroborated by government documents that have been published in the press. For example, one NSA slide illustrates the Upstream surveillance facilitated by just a single provider (referred to as “STORMBREW”) at seven major international chokepoints in the United States:
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69. Similarly, another NSA document states that, in support of FAA surveillance, the “NSA has expended a significant amount of resources to create collection/processing capabilities at many of the chokepoints operated by U.S. providers through which international communications enter and leave the United States.” In fact, in describing the scale and operation of Upstream surveillance, The New York Times has reported, based on interviews with senior intelligence officials, that “the N.S.A. is temporarily copying and then sifting through the contents of what is apparently most e-mails and other text-based communications that cross the border.”
70. The government’s interception, copying, and review of Plaintiffs’ communications while in transit is a violation of Plaintiffs’ reasonable expectation of privacy in
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those communications. It is also a violation of Plaintiffs’ right to control those communications and the information they reveal and contain.
71. Furthermore, because of the nature of their communications, and the location and identities of the individuals and groups with whom and about whom they communicate, there is a substantial likelihood that Plaintiffs’ communications intercepted by the NSA through Upstream surveillance are retained, read, and disseminated.
72. The retention, reading, and dissemination of Plaintiffs’ communications is a further, discrete violation of Plaintiffs’ reasonable expectation of privacy in those communications. It is also a further, discrete violation of Plaintiffs’ right to control those communications and the information they reveal and contain.
73. Plaintiffs, in connection with constitutionally protected activities, communicate with people whom the government is likely to target when conducting Upstream surveillance, including foreign government officials, journalists, experts, human rights defenders, victims of human rights abuses, and individuals believed to have information relevant to counterterrorism efforts.
74. A significant amount of the information that Plaintiffs exchange over the internet is “foreign intelligence information” within the meaning of the FAA.
75. Because of ongoing government surveillance, including Upstream surveillance, Plaintiffs have had to take burdensome and sometimes costly measures to minimize the chance that the confidentiality of their sensitive information will be compromised. Plaintiffs have variously had to develop new protocols for transmitting sensitive information, to travel long distances to collect information that could otherwise have been shared electronically, and in some circumstances to forgo particularly sensitive communications altogether.
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76. Because of ongoing government surveillance, including Upstream surveillance, Plaintiffs are not able to gather and relay information, represent their clients, and engage in domestic and international advocacy as they would in the absence of the surveillance. Upstream surveillance reduces the likelihood that clients, users, journalists, witnesses, experts, civil society organizations, foreign government officials, victims of human rights abuses, and other individuals will share sensitive information with Plaintiffs.
77. Upstream surveillance is inhibiting the constitutionally protected communications and activities of Plaintiffs and others not before the Court.
Wikimedia Foundation 78. Wikimedia is a non-profit organization dedicated to encouraging the growth, development, and distribution of free, multilingual, educational content. In this effort, it develops and maintains “wiki”-based projects, and provides the full contents of those projects to individuals around the world free of charge. At present, Wikimedia operates twelve freeknowledge projects (“Projects”) as well as other related websites and pages on the internet. 79. The best-known of Wikimedia’s Projects is Wikipedia—a free internet encyclopedia that is one of the top ten most-visited websites in the world and one of the largest collections of shared knowledge in human history. In 2014, Wikipedia contained more than 33 million articles in over 275 languages, and Wikimedia sites received between approximately 412 and 495 million monthly visitors. Wikipedia’s content is collaboratively researched and written by millions of volunteers, many of whom choose not to identify themselves, and is in most instances open to editing by anyone. Volunteers also use Wikipedia discussion forums and “discussion pages” to debate the editorial policies and decisions required for reliable and neutral content.
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80. Other Projects include Wikimedia Commons, an online repository of free images, sound, and other media files; Wikinews, a collaborative journalism platform for volunteers to create and edit original news articles; and Wikibooks, a platform for the creation of free textbooks and annotated texts that anyone can edit consistent with the policies of the site.
81. Wikimedia encourages individuals around the world to contribute to the Projects by communicating information to Wikimedia. Wikimedia receives and maintains this information, and subsequently communicates it to the many other individuals who seek to access, engage with, and further add to Wikimedia’s store of knowledge. The principal way in which Wikimedia communicates with its community—which, at its broadest level, consists of individuals who access or contribute to the body of knowledge comprising the twelve Projects—is via the internet.
82. Wikimedia provides the technical infrastructure for the Projects, much of which is hosted on Wikimedia’s servers in Virginia, Texas, and California. In addition, Wikimedia develops software and provides tools for others to develop software platforms; develops mobile phone applications and enters into partnerships; administers grants to support activity that benefits the Wikimedia user community and the Wikimedia movement; provides administrative support to grantees; works with community members to organize conferences and communityoutreach events globally; and engages in advocacy on issues that affect the Wikimedia community.
83. Wikimedia maintains an active and close relationship with the volunteers, contributors, and many other users who comprise the Wikimedia community. Wikimedia exists for this community and depends upon it: the user community plays a vital role in many of
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Wikimedia’s functions, including the creation of Wikimedia content, the development and enforcement of Wikimedia policies, the donation of funds that help Wikimedia thrive, and the governance of the organization as a whole. In short, Wikimedia operates interdependently with its user community in pursuit of a shared set of free-knowledge values.
84. Wikimedia’s corporate structure and decision-making reflect this interdependence. In accordance with Wikimedia’s bylaws, at least half of Wikimedia’s Board of Trustees is selected by Wikimedia community members. That Board relies, in turn, on several user-staffed committees to oversee Board elections, consider grant applications, and recommend new Wikimedia chapters or community organizations. More generally, Wikimedia makes core organizational decisions after soliciting the input and preferences of its users on topics including its public-policy positions, the creation of new features and Projects, corporate strategy, and budgetary matters. For instance, Wikimedia staff frequently engage in “Community Consultations,” in which community members can offer their views on these and other matters directly.
85. Wikimedia’s community of volunteers, contributors, and readers consists of individuals in virtually every country on earth. Among many others, the Wikimedia community includes U.S. persons who are located abroad and who engage in international communications with Wikimedia.
86. Upstream surveillance implicates at least three categories of Wikimedia communications: (i) Wikimedia communications with its community members, who read and contribute to Wikimedia’s Projects and webpages, and who use the Projects and webpages to interact with each other; (ii) Wikimedia’s internal “log” communications, which help it to
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monitor, study, and improve its community members’ use of the Projects; and (iii) communications by Wikimedia staff.
87. As the operator of one of the most-visited websites in the world, Wikimedia engages in an extraordinarily high volume of internet communications. From April 1, 2014 to March 31, 2015, Wikimedia websites received over 255 billion “page views.” Over the lifespan of the Wikimedia Projects, Wikimedia’s users have edited its pages more than two billion times. Each of these activities involves internet communications between Wikimedia and its users—the majority of whom are located abroad.
88. Indeed, Wikimedia engages in more than one trillion international communications each year, with individuals who are located in virtually every country on earth. For a user to view, search, log in, edit, or contribute to a Wikimedia Project webpage, the user’s device must send at least one HTTP or HTTPS “request” to a Wikimedia server. “HTTP” and “HTTPS” are common protocols for transmitting data via the internet, including the content of many webpages. The number of requests required for a user to access a particular webpage depends on the number of graphics, videos, and other specialized components featured on the page. After receiving such a user request, the Wikimedia server transmits an HTTP or HTTPS “response” to the user’s device, where the content of the requested webpage component is rendered and displayed to the user. In May 2015, Wikimedia’s U.S.-based servers received more than 88 billion HTTP or HTTPS requests from outside the United States. At this rate, Wikimedia receives more than one trillion HTTP or HTTPS requests annually, and transmits more than one trillion HTTP or HTTPS responses back to those Wikimedia users abroad.
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89. Wikimedia’s HTTP and HTTPS communications are essential to its organizational mission, as is its ability to control and maintain the privacy of these communications. The communications reveal and contain some of the most sensitive information that Wikimedia possesses: which specific webpages each particular person is editing or visiting. In other words, they reveal who is reading—or writing—what.
90. For example, among other private information, HTTP and HTTPS requests reveal or contain the user’s IP address; the URL of the webpage sought by the user, which often conveys information about the content of the requested page; and the “user agent,” which may identify the manufacturer, model, version, and other information about the user’s device. Many requests also contain other types of private information, such as a user’s log-in credentials; the referrer, which reflects information about the previous webpage the user visited; the search terms a user entered to query Wikimedia’s webpages; “cookies,” which include information that can be used to link a user to his or her prior Wikimedia requests and prior approximate geolocation; a user’s non-public “draft” contributions to Wikimedia; or a user’s private questions, comments, or complaints, submitted via Wikimedia’s online feedback platform.
91. In much the same way, Wikimedia’s HTTP and HTTPS responses may reveal or contain, among other private information, the user’s IP address; the content of the requested webpage component; the URL of the webpage the user should be redirected to; “cookies,” which include information used to link a user to subsequent Wikimedia requests and his or her approximate geolocation; search terms; a user’s username; a user’s non-public “draft” contributions; and a user’s private questions, comments, or complaints.
92. In furtherance of its mission, Wikimedia also frequently engages in communications that permit its users to interact with one another more directly. For example, a
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registered user of Wikimedia may send an email via Wikimedia to another registered user, so long as both have enabled email communications on their Wikimedia accounts. Similarly, Wikimedia engages in communications that allow users to interact in small or limited groups— including over wikis that only certain users, such as user-community leaders, have access to, and mailing lists with restricted membership. Some of these communications are transmitted via HTTP or HTTPS; others rely on different protocols. All of these interactions involve communications between Wikimedia and its community members.
93. The second category of Wikimedia communications are its internal, proprietary “log” communications, which help it to monitor, study, and improve the Projects. In particular, every time Wikimedia receives an HTTP or HTTPS request from a person accessing a Project webpage, it creates a corresponding log entry. Among other private information, logs contain the user’s IP address; the URL of the webpage sought by the user; the time the request was received by Wikimedia’s server; and the “user agent,” which may identify the manufacturer, model, version, and other information about the user’s device. Depending on the location of the user and the routing of her request, the log may be generated by Wikimedia’s servers abroad, which in turn send the log to Wikimedia in the United States. In May 2015, Wikimedia transmitted more than 140 billion logs from its servers abroad to its servers in the United States. The organization relies on its logs for a variety of analytical projects, which are designed to improve Wikimedia’s operations and the experience of those using the Projects.
94. Wikimedia’s communications with its community members—as well as its internal logs—link each user’s page views, searches, and contributions with his or her IP address, as well as with other user-specific information. As a rule, Wikimedia maintains as private the IP addresses associated with its community members and their individual
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interactions with the Projects, except in those instances where an individual editor reveals his or her IP address publicly (i.e., is not logged in as a registered user). IP addresses, like telephone numbers, are often personally identifying, especially in conjunction with other information about a given communication or internet user. It is generally trivial to link a particular IP address with a particular person—thereby revealing his or her online activities—in part because internet service providers routinely maintain records of the IP addresses assigned to their network subscribers over time.
95. Because of the information they contain, Wikimedia’s communications with its community members, as well as its internal communications related to the study and improvement of the Projects, are often sensitive and private. These communications reveal a detailed picture of the everyday concerns and reading habits of Wikimedia’s users, and often constitute a record of their political, religious, sexual, medical, and expressive interests.
96. Seizing and searching Wikimedia’s communications is akin to seizing and searching the patron records of the largest library in the world—except that Wikimedia’s communications provide a more comprehensive and detailed picture of its users’ interests than any previous set of library records ever could have offered.
97. Upstream surveillance permits the government to observe—continuously— which of Wikimedia’s millions of webpages are being read or edited at any given moment, and by whom. Moreover, it allows the government to review those communications for any reference to its tens of thousands of search terms, and to retain a copy of any communication that is of interest.
98. As an organization, Wikimedia has an acute privacy interest in its communications—one on par with that of users themselves. That is because Wikimedia’s
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mission and existence depend on its ability to ensure that readers and editors can explore and contribute to the Projects privately when they choose to do so. Wikimedia’s communications reveal who has contributed to the Projects or visited them in search of information—and, just as importantly, exactly what information Wikimedia has exchanged with any individual user. With the partial exception of editors who publicly disclose their IP addresses, these exchanges are not public; they are private interactions between Wikimedia and its community members. If it were otherwise, Wikimedia would have immense difficulty both gathering content and sharing information as widely as possible. This privacy is necessary to foster trust with community members and to encourage the growth, development, and distribution of free educational content.
99. Wikimedia’s communications also reveal private information about its operations, including details about its technical infrastructure, its data flows, and its member community writ large.
100. Wikimedia takes steps to protect the privacy of its communications and the confidentiality of the information it thereby receives. For instance, because of the sensitivity of Wikimedia’s communications with its community members, Wikimedia seeks to collect and retain as little information about those exchanges as possible. Where it does collect such information, Wikimedia strives to keep it for only a limited amount of time, consistent with the maintenance, understanding, and improvement of the Projects and with Wikimedia’s legal obligations. Still, Wikimedia possesses a large volume of sensitive information about its interactions with its community members, and it transmits a large volume of sensitive information about those interactions every day.
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101. Wikimedia defends the privacy of its communications in other ways, including through both technical measures and legal action. Wikimedia undertakes costly and burdensome measures to ensure the security of its communications and the data it retains as a result. Wikimedia also assures its community via policies, public statements, and guidelines that it will reject third-party requests for non-public user information unless it is legally required to disclose that information. In keeping with these assurances, Wikimedia resists thirdparty demands for information that are overly broad, unclear, or irrelevant; notifies users individually of information requests when legally permitted; and provides legal defense funds for certain community members who are subject to lawsuits or demands for non-public information as a result of their participation in the Projects.
102. Wikimedia also engages in a third category of sensitive communications. Certain members of Wikimedia’s staff routinely engage in sensitive, confidential, and privileged internet communications with non-U.S. persons located abroad in carrying out Wikimedia’s work.
103. Wikimedia’s communications—with its community members, its internal communications, and its staff communications—are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of Wikimedia, its staff, and its users, and it violates their right to control those communications and the information they contain.
104. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates Wikimedia’s international communications because Wikimedia is communicating with or about persons the government has targeted for Upstream surveillance. Wikimedia’s international contacts include foreign telecommunications companies, foreign government
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officials, political and business leaders, universities, Wikimedia users and their legal counsel, Wikimedia trustees and international contractors, Wikimedia’s international outside legal counsel, project partners, grantees, and volunteers—some of whom are likely targets. Wikimedia’s communications with these contacts sometimes concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” Wikimedia communicates both with and about these likely targets. Wikimedia’s international communications contain, among other things, information about its foreign contacts, including the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to Wikimedia’s work.
105. Moreover, more than one trillion of Wikimedia’s international communications each year—its HTTP and HTTPS transmissions as well as its internal logs of user activity— contain details such as website addresses and IP addresses. Whenever a Wikimedia user abroad edits or contributes to a Project webpage that happens to reference one of the NSA’s selectors, Wikimedia engages in an international communication containing that selector. The same is often true when a Wikimedia user abroad simply reads such a Project webpage. Some of these communications are likely retained, read, and disseminated in the course of Upstream surveillance.
106. Because Wikipedia is a comprehensive encyclopedic resource, it includes entries related to virtually any foreign organization or company the U.S. government might target for Upstream surveillance. Many of these entries contain website addresses and domain names associated with those likely targets. Notably, website addresses or domain names associated with organizations on the U.S. State Department’s Foreign Terrorist Organization list appear over 700 times on Project webpages—including those describing organizations, like
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107. The NSA has expressed interest in surveilling Wikimedia’s communications. An NSA slide disclosed by the media asks, “Why are we interested in HTTP?” It then answers its own question: “Because nearly everything a typical user does on the Internet uses HTTP.” This statement is surrounded by the logos of major internet companies and websites, including Facebook, Yahoo, Twitter, CNN.com, and Wikipedia. The slide indicates that, by monitoring HTTP communications, the NSA can observe “nearly everything a typical user does” online— including individuals’ online reading habits and other internet activities. This information is queried and reviewed by analysts using a search tool that allows NSA analysts to examine data intercepted pursuant to the FAA and other authorities.
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108. Upstream surveillance undermines Wikimedia’s ability to conduct its work. Wikimedia depends on its ability to ensure anonymity for individuals abroad who view, edit, or otherwise use Wikimedia Projects and related webpages. The ability to read, research, and write anonymously is essential to the freedoms of expression and inquiry. In addition, Wikimedia’s staff depend on the confidentiality of their communications, including in some cases their ability to ensure that their contacts’ identities will not be revealed. Because of these twin needs for anonymity and confidentiality, Upstream surveillance harms the ability of Wikimedia’s staff to engage in communications essential to their work and compromises Wikimedia’s organizational mission by making online access to knowledge a vehicle for U.S. government monitoring.
109. Due in part to NSA surveillance, including Upstream surveillance, Wikimedia has undertaken burdensome and costly measures to protect its communications, including adopting more secure methods of electronic communication, and in some instances selfcensoring communications or forgoing electronic communications altogether. These measures divert Wikimedia’s time and monetary resources as a non-profit entity from other important organizational work.
110. Despite these precautions, Wikimedia believes that Upstream surveillance has resulted and will result in some foreign readers, editors, contributors, and volunteers being less willing to read, contribute to, or otherwise engage with Wikimedia’s Projects. For instance, some Wikimedia users have expressed reluctance to continue participating in the Wikimedia movement because of U.S. government surveillance, including FAA surveillance. The loss of these foreign users is a direct detriment to Wikimedia, its ability to receive information and associate with its community members, and its organizational goal of increasing global access
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to knowledge. It also harms Wikimedia’s domestic users, who do not have access to information and opinions that Wikipedia’s foreign contributors would otherwise have provided. Similarly, Wikimedia believes that Upstream surveillance reduces the likelihood that Wikimedia’s foreign volunteers, grantees, and other contacts will communicate with staff members, because they fear that their communications will be intercepted by the U.S. government and also shared with the other governments, intelligence services, and organizations with which the U.S. government cooperates.
111. Because Wikimedia’s community members are so numerous, because they are dispersed across the globe, and because millions of them choose to interact with Wikimedia anonymously, their rights are likely to be impaired if Wikimedia is unable to assert claims on their behalf. That is especially so because Wikimedia is uniquely capable of presenting the aggregate effects that Upstream surveillance has on community members’ ability to contribute to the Projects and to receive information from others.
National Association of Criminal Defense Lawyers 112. The National Association of Criminal Defense Lawyers (“NACDL”) is a membership organization based in Washington, D.C. NACDL’s mission is to foster the integrity, independence, and expertise of the criminal defense profession, and to promote the proper and fair administration of justice. NACDL has approximately 9,200 members as well as 90 local, state, and international affiliate organizations with approximately 40,000 members. NACDL’s interest in challenging the lawfulness of Upstream surveillance is germane to the organization’s mission and purpose, and to its relationship with its members. As explained below, because unlawful U.S. government surveillance profoundly affects the ability of
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criminal defense attorneys to ensure that accused persons receive effective counsel, such surveillance interferes with the proper and fair administration of justice.
113. As defense attorneys, NACDL’s members engage in international and domestic internet communications that are essential to the effective representation of their clients. Among other things, NACDL’s members routinely engage in sensitive, confidential, and privileged internet communications with non-U.S. persons located abroad as part of their representations.
114. The communications of NACDL’s members are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of members’ communications and it violates their right to control their communications and the information they contain.
115. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates international communications of NACDL’s members because they are communicating with or about persons the government has targeted for Upstream surveillance. In the course of their representations, NACDL members communicate internationally with clients, clients’ families, witnesses, journalists, human rights organizations, experts, investigators, and foreign government officials, some of whom are likely targets. Their communications with these contacts frequently concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” NACDL members communicate both with and about these likely targets. Members’ international communications contain, among other things, details about their foreign contacts and other important sources of information—details such as the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to their work.
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116. One group of NACDL members is especially likely to have their communications retained, read, and disseminated in the course of Upstream surveillance: defense attorneys who represent individuals in criminal prosecutions in which the government has acknowledged its use FAA surveillance. In these cases, the government’s prosecution of the defendant is based on evidence obtained from an FAA target. As a result, defense attorneys are especially likely to engage in communications to, from, or about FAA targets in the course of investigating the government’s allegations, contacting witnesses, and collecting their own evidence. Indeed, in several of these cases, the targeted selector—e.g., the targeted email address—has been identified in press reports or may be ascertained from congressional testimony and court filings. NACDL defense attorneys who communicate internationally with or about that targeted selector will have their communications retained by the government, much as their clients’ communications were warrantlessly intercepted and retained.
117. NACDL members have an ethical obligation to protect the confidentiality of their clients’ information, including information covered by the attorney-client privilege.
118. Upstream surveillance compromises NACDL members’ ability to comply with their ethical obligations and undermines their effective representation of their clients. Members’ defense work depends on the confidentiality of their communications, including their ability to assure contacts that their communications—and, in some cases, even their identities—will not be revealed. Due in part to NSA surveillance, including Upstream surveillance, NACDL’s members have undertaken burdensome and costly measures to protect their communications, including adopting more secure methods of electronic communication, traveling to conduct in-person meetings, and in some instances avoiding sensitive topics or forgoing communications altogether. Despite these precautions, NACDL believes that
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Upstream surveillance reduces the likelihood that potential sources, witnesses, experts, and foreign government officials will share sensitive information with NACDL’s members, because those contacts fear that their communications will be intercepted by the U.S. government and also shared with the other governments, intelligence services, and organizations with which the U.S. government cooperates.
NACDL Member Joshua L. Dratel 119. Joshua L. Dratel is a nationally recognized criminal defense lawyer in New York City who has been a member of NACDL since 1985. He is Chair of NACDL’s National Security Committee, co-Chair of NACDL’s Select Committee on Military Tribunals, and CoChair of its Amicus Curiae Committee. From 2003 to 2009, he served as a member of the Board of Directors of NACDL. He is also co-editor of The Torture Papers: The Legal Road to Abu Ghraib (Cambridge University Press 2005). 120. Mr. Dratel’s litigation experience encompasses all aspects of criminal defense, and among other clients, he represents individuals accused of internet- and terrorism-related crimes. For example, he defended Wadith El Hage in United States v. Usama Bin Laden, the prosecution resulting from the 1998 bombings of the U.S. embassies in Kenya and Tanzania. Mr. Dratel also represented David Hicks—who was detained at Guantánamo Bay for six years—in U.S. military commission proceedings. The U.S. Court of Military Commission Review recently overturned Mr. Hicks’s conviction for material support for terrorism. Mr. Dratel’s current clients include Baasaly Moalin, who is appealing from a conviction of charges of material support for terrorism. 121. Mr. Dratel’s law practice also includes a client who has received notice of FAA surveillance, and he previously represented a client in another case where officials have told
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Congress that the government used FAA surveillance in the course of its investigation. He has defended other individuals in prosecutions where there is reason to believe the government relied on such surveillance.
122. In connection with his defense work and confidential consultations with defense attorneys in other national security-related cases, Mr. Dratel routinely engages in both domestic and international communications via the internet. Many of the individuals with whom he exchanges information are located abroad, and are neither U.S. citizens nor permanent residents. Their communications occur via email, instant messenger, and text messaging.
123. The vast majority of Mr. Dratel’s international communications as a defense attorney are sensitive, and many of them are privileged or otherwise protected from disclosure by the attorney work-product doctrine.
124. Mr. Dratel’s communications are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of his communications and it violates his right to control his communications and the information they contain.
125. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates Mr. Dratel’s international communications because he is communicating with persons the government has targeted for Upstream surveillance. In the course of his representations, Mr. Dratel communicates internationally with clients, clients’ families, lawyers, witnesses, journalists, human rights organizations, experts, investigators, and foreign government officials, some of whom are likely targets. Most notably, his international contacts include individuals the U.S. government has targeted for prosecution for terrorism-related crimes, as well as their families, friends, and associates, including their attorneys overseas. For example, Mr. Dratel communicates via the internet with his former client, Mr. Hicks, who lives
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in Australia following his release from Guantánamo Bay. In addition, Mr. Dratel’s communications with his international contacts frequently concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” Mr. Dratel also communicates with likely FAA targets when he visits websites hosted overseas on the internet. This internet browsing involves communications with selectors—such as domain names and IP addresses—that the NSA has likely targeted for FAA surveillance. In his representation of defendants charged with terrorism-related crimes, it is often necessary for him to review websites maintained by terrorist organizations abroad, so that he can understand the facts related to certain investigations and prosecutions.
126. Similarly, there is a substantial likelihood that the NSA retains, reads, and disseminates Mr. Dratel’s international communications because he is communicating about persons the government has targeted for Upstream surveillance. Mr. Dratel’s international communications contain, among other things, details about his foreign contacts and other important sources of information—details such as the email addresses, phone numbers, social media identities, and website addresses of foreign individuals and organizations relevant to his work.
127. The fact that Mr. Dratel’s clients have been subject to FAA surveillance themselves, or involved in investigations where others were subject to such surveillance, makes the NSA’s retention and dissemination of Mr. Dratel’s own communications especially likely. In representing these clients, Mr. Dratel is almost certain to engage in communications to, from, or about FAA targets in the course of investigating the government’s allegations, contacting witnesses, and collecting evidence abroad via the internet. When Mr. Dratel
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communicates with or about persons and selectors targeted under the FAA, he is subject to FAA surveillance just like his clients.
128. Due in part to U.S. government surveillance, including Upstream surveillance, Mr. Dratel has had to undertake burdensome and costly measures to protect his international communications, and in certain instances has forgone those communications altogether. For example, Mr. Dratel has had to and will have to travel abroad to gather information in-person that he would otherwise have gathered by electronic communication. Such travel is timeconsuming and costly. He has also paid for and will have to pay for investigators abroad to travel to the United States to meet with him in-person to discuss their cases. In addition, Mr. Dratel routinely relies on time-consuming security measures, such as Pidgin Encryption and PGP, to encrypt his domestic and international instant messages and emails, in an effort to protect especially sensitive privileged communications and work product. Mr. Dratel also routinely censors his own speech (and asks his international contacts to do the same) in electronic communications. These precautions and security measures are not voluntary; they are the result of Upstream surveillance and the rules of professional responsibility that apply to Mr. Dratel as an attorney.
129. As a general matter, Upstream surveillance compromises Mr. Dratel’s ability to communicate with his clients overseas and to gather information relevant and necessary to his work. This surveillance makes it difficult, expensive, and sometimes impossible to obtain information from individuals outside of the United States. In some instances, the increased awareness of U.S. government surveillance has resulted and will result in clients, lawyers, and potential witnesses limiting the information that they share with Mr. Dratel and that he shares with them. Indeed, some witnesses abroad have not and will not communicate with Mr. Dratel
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at all electronically, because they believe that by sharing information with him, they are also sharing information with the U.S. government. At times, Mr. Dratel must forgo these communications altogether. The cost of traveling to certain remote areas of the globe to interview a potential witness in-person can be too high to justify the travel, and some regions are simply too dangerous or inaccessible to permit in-person visits.
Human Rights Watch 130. HRW is a non-profit, non-governmental human rights organization based in New York City. It employs approximately 400 staff members located across offices around the world. Formed in 1978, HRW’s mission is to defend the rights of people worldwide. HRW conducts fact-finding investigations into human rights abuses by governments and non-state actors in all regions of the world. 131. HRW engages in international and domestic internet communications that are essential to its mission. Among other things, HRW’s U.S.-based staff routinely engage in sensitive and confidential internet communications with non-U.S. persons located abroad in carrying out HRW’s research, reporting, and advocacy work. 132. HRW’s communications are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of HRW’s communications and it violates HRW’s right to control those communications and the information they contain. 133. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates HRW’s international communications because HRW is communicating with or about persons the government has targeted for Upstream surveillance. HRW’s international contacts include foreign government officials, humanitarian agencies, think tanks, military officials, human rights defenders, politicians, dissidents, victims of human rights abuses,
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perpetrators of human rights abuses, religious groups, media, and scholars, some of whom are likely targets. HRW’s communications with these contacts frequently concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” HRW communicates both with and about these likely targets. HRW’s international communications contain, among other things, details about its foreign contacts and other important sources of information—details such as the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to HRW’s work.
134. Upstream surveillance undermines HRW’s ability to conduct its work. HRW’s research, reporting, and advocacy depend on the confidentiality of its communications, including its ability to assure its contacts that their communications—and, in some cases, even their identities—will not be revealed. Due in part to NSA surveillance, including Upstream surveillance, HRW has undertaken burdensome and costly measures to secure and protect its communications, including adopting more secure methods of electronic communication, traveling to conduct in-person meetings, and in some instances avoiding sensitive topics or forgoing communications altogether. Despite these precautions, HRW believes that Upstream surveillance reduces the likelihood that sources, witnesses, experts, foreign government officials, and victims of human rights abuses will share sensitive information with HRW’s staff, because they fear that their communications will be intercepted by the U.S. government and also shared with the other governments, intelligence services, and organizations with which the U.S. government cooperates.
Amnesty International USA 135. AIUSA, headquartered in New York City, is one of Amnesty International’s largest national sections, with hundreds of thousands of members and supporters. Through its
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advocacy campaigns, AIUSA seeks to expose and stop human rights abuses in the United States and throughout the world.
136. AIUSA engages in international and domestic internet communications that are essential to its mission. Among other things, some of AIUSA’s U.S.-based staff—as well as some AIUSA members who serve as volunteer specialists on particular countries and thematic issues—routinely engage in sensitive and confidential internet communications with non-U.S. persons located abroad in carrying out AIUSA’s reporting and advocacy work.
137. AIUSA’s communications are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of AIUSA’s communications and it violates AIUSA’s right to control those communications and the information they contain.
138. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates AIUSA’s international communications because AIUSA is communicating with or about persons the government has targeted for Upstream surveillance. AIUSA’s international contacts include Amnesty International researchers who are documenting and witnessing human rights violations in the field, human rights defenders, victims of violations and their families, eyewitnesses to violations, political dissidents, government officials, journalists, and lawyers, some of whom are likely targets. AIUSA’s communications with these contacts frequently concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” AIUSA communicates both with and about these likely targets. AIUSA’s international communications contain, among other things, details about its foreign contacts and other important sources of information—details such as the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to AIUSA’s work.
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139. Upstream surveillance undermines AIUSA’s ability to conduct its work. AIUSA’s reporting and advocacy depends on the confidentiality of its communications, including its ability to assure its contacts that their communications—and, in some cases, even their identities—will not be revealed. Due in part to NSA surveillance, including Upstream surveillance, some AIUSA staff strive to communicate particularly sensitive matters in-person, and must sometimes avoid sensitive topics or forgo exchanging information about these matters altogether. Despite these precautions, AIUSA believes that Upstream surveillance reduces the likelihood that sources, witnesses, experts, foreign government officials, and victims of human rights abuses will share sensitive information with AIUSA’s staff and members, because they fear that their communications will be intercepted by the U.S. government and also shared with the other governments, intelligence services, and organizations with which the U.S. government cooperates.
PEN American Center 140. PEN is an association based in New York City of approximately 4,000 novelists, journalists, editors, poets, essayists, playwrights, publishers, translators, agents, and other professionals, and an even larger network of readers and supporters. It is the largest of the organizations within PEN International. For the last 90 years, PEN has worked to ensure that people all over the world are at liberty to create literature, to convey ideas freely, and to express their views unimpeded. One of PEN’s core projects is to advocate on behalf of persecuted writers across the globe, so that they might be free to write and to express their ideas. 141. PEN engages in international and domestic internet communications that are essential to its mission. Among other things, PEN’s U.S.-based staff routinely engage in
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sensitive and confidential internet communications with non-U.S. persons located abroad in carrying out PEN’s research and advocacy work.
142. PEN’s communications are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of PEN’s communications and it violates PEN’s right to control those communications and the information they contain.
143. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates PEN’s international communications because PEN is communicating with or about persons the government has targeted for Upstream surveillance. PEN’s international contacts include writers whose work and experiences relate to political upheavals, human rights violations, freedom of the press, and government surveillance; those writers’ families and legal representatives; human rights defenders; and other PEN partners in countries such as Syria, Cuba, China, Iran, and Ethiopia—some of whom are likely targets. PEN’s communications with these contacts frequently concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” PEN communicates both with and about these likely targets. PEN’s international communications contain, among other things, details about its foreign contacts and other important sources of information—details such as the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to PEN’s work.
144. Upstream surveillance undermines PEN’s ability to conduct its work. PEN’s research and advocacy depend on the confidentiality of its communications, including its ability to assure its contacts that their communications—and, in some cases, even their identities—will not be revealed. Due in part to NSA surveillance, including Upstream surveillance, PEN staff have undertaken burdensome measures to secure and protect their
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communications, including adopting more secure methods of electronic communication, and in some instances avoiding sensitive topics or forgoing communications altogether. Despite these precautions, PEN believes that Upstream surveillance reduces the likelihood that foreign writers and other contacts will share sensitive information with PEN’s staff, because they fear that their communications will be intercepted by the U.S. government and also shared with the other governments, intelligence services, and organizations with which the U.S. government cooperates.
Global Fund for Women 145. GFW, based in San Francisco and New York City, is a grant-maker and a global advocate for women’s human rights. GFW advances the movement for women’s human rights by directing resources to and raising the voices of women worldwide. GFW invests in local, courageous women and women-led organizations, and creates digital advocacy campaigns on critical global issues for women and girls. Since its inception in 1986, GFW has awarded 9,921 grants totaling $120 million to 4,759 organizations in 175 countries. 146. GFW engages in international and domestic internet communications that are essential to its mission. Among other things, GFW’s U.S.-based staff routinely engage in sensitive, confidential, and privileged internet communications with non-U.S. persons located abroad in carrying out GFW’s grant-making and advocacy work. 147. GFW’s communications are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of GFW’s communications and it violates GFW’s right to control those communications and the information they contain. 148. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates GFW’s international communications because GFW is communicating with or
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about persons the government has targeted for Upstream surveillance. GFW’s international contacts include foreign banks, foreign government agencies, funders, attorneys, and grantee and partner organizations working in conflict zones or on politically sensitive issues abroad, some of whom are likely targets. GFW’s communications with these contacts frequently concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” GFW communicates both with and about these likely targets. GFW’s international communications contain, among other things, details about its foreign contacts and other important sources of information—details such as the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to GFW’s work.
149. Upstream surveillance undermines GFW’s ability to conduct its work. GFW’s grant-making depends on the confidentiality of its communications, including its ability to assure its contacts that their communications—and, in some cases, even their identities—will not be revealed. Due in part to NSA surveillance, including Upstream surveillance, GFW’s staff must exercise extreme caution when engaging in certain international communications, and in some instances avoid sensitive topics or forgo communications altogether. Some of GFW’s international contacts will communicate with the organization only by phone or Skype, rather than email, because they believe that email is a less secure means of communication. Other of GFW’s international contacts will communicate via email, but only if staff avoid using certain words in their communications that may result in further government scrutiny. Despite these precautions, GFW believes that Upstream surveillance reduces the likelihood that current and prospective grantees will share sensitive information with GFW’s staff, because they fear that their communications will be intercepted by the U.S. government and also shared with the
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other governments, intelligence services, and organizations with which the U.S. government cooperates.
The Nation Magazine 150. The Nation is America’s oldest weekly magazine of opinion, news, and culture. The Nation is also a digital media company, reporting daily on politics, social issues, and the arts. Its journalists report on a wide range of issues relating to international affairs, including the wars in Iraq and Afghanistan, the Israel–Palestine conflict, protest activities and politics in China and elsewhere in East Asia, and civil wars and other conflicts in Africa and Latin America. 151. The Nation engages in international and domestic internet communications that are essential to its mission. Among other things, The Nation’s staff and contributing writers routinely engage in sensitive and confidential internet communications with non-U.S. persons located abroad in carrying out The Nation’s research, reporting, and editing. 152. The Nation’s communications are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of The Nation’s communications and it violates The Nation’s right to control those communications and the information they contain. 153. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates The Nation’s international communications because The Nation is communicating with or about persons the government has targeted for Upstream surveillance. The Nation’s international contacts include foreign journalists in conflict zones, foreign government officials, political dissidents, human rights activists, and members of guerrilla and insurgency movements, some of whom are likely targets. The Nation’s communications with these
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contacts frequently concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” The Nation communicates both with and about these likely targets. The Nation’s international communications contain, among other things, details about its foreign contacts and other important sources of information—details such as the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to The Nation’s work.
154. Upstream surveillance undermines The Nation’s ability to conduct its work. The Nation’s research and reporting depends on the confidentiality of its communications, including its ability to assure its contacts that their communications—and, in some cases, even their identities—will not be revealed. Due in part to NSA surveillance, including Upstream surveillance, The Nation has undertaken burdensome and costly measures to protect its communications, including adopting more secure methods of electronic communication, and in some instances avoiding sensitive topics or forgoing communications altogether. Despite these precautions, The Nation believes that Upstream surveillance reduces the likelihood that foreign journalists and sources will share sensitive information with The Nation, because they fear that their communications will be intercepted by the U.S. government and also shared with the other governments, intelligence services, and organizations with which the U.S. government cooperates.
The Rutherford Institute 155. The Rutherford Institute, founded in 1982 and based in Virginia, is a civil liberties organization committed to protecting the constitutional freedoms of Americans and the human rights of all people. Rutherford provides free legal services in defense of civil liberties
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and educates the public about constitutional and human rights issues. It also advocates on behalf of individuals abroad whose rights are threatened by foreign governments.
156. Rutherford engages in international and domestic internet communications that are essential to its mission. Among other things, Rutherford’s staff, who are based in the U.S., routinely engage in sensitive and confidential internet communications with non-U.S. persons located abroad in carrying out Rutherford’s advocacy, legal, and educational activities.
157. Rutherford’s communications are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of Rutherford’s communications, and it violates Rutherford’s right to control those communications and the information they contain.
158. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates Rutherford’s international communications because Rutherford is communicating with or about persons the government has targeted for Upstream surveillance. Rutherford’s international contacts include human rights and civil liberties advocates, foreign government officials, and individuals whose rights are threatened by the U.S. or foreign governments, some of whom are likely targets. Rutherford’s communications with these contacts frequently concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” Rutherford communicates both with and about these likely targets. Rutherford’s international communications, among other things, contain details about its foreign contacts and other important sources of information—details such as the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to Rutherford’s work.
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159. Upstream surveillance undermines Rutherford’s ability to conduct its work. Rutherford’s advocacy depends on its ability to assure its contacts that their communications— and, in some cases, even their identities—will not be revealed. Due in part to NSA surveillance, including Upstream surveillance, Rutherford in some instances avoids sensitive topics or forgoes communications altogether. Rutherford believes that Upstream surveillance reduces the likelihood that victims of human rights abuses, witnesses, foreign government officials, and other contacts will share sensitive information with Rutherford, because they fear that their communications will be intercepted by the U.S. government and also shared with the other governments, intelligence services, and organizations with which the U.S. government cooperates.
The Washington Office on Latin America 160. WOLA is a non-profit, non-governmental organization based in Washington D.C. WOLA works to advance human rights and social justice in the Americas. WOLA is regularly called upon for its research and analysis by policymakers, the media, and academics in the U.S. and Latin America. To further this work, WOLA gathers and publishes information about U.S. policies concerning Latin America, U.S. assistance (military or otherwise) to Latin American countries, and U.S. immigration practices, among other things. 161. WOLA engages in international and domestic internet communications that are essential to its mission. Among other things, WOLA’s U.S.-based staff routinely engage in sensitive and confidential internet communications with non-U.S. persons located abroad in carrying out WOLA’s research, policy, and advocacy work.
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162. WOLA’s communications are intercepted, copied, and reviewed in the course of Upstream surveillance. This surveillance invades the privacy of WOLA’s communications and it violates WOLA’s right to control those communications and the information they contain.
163. Furthermore, there is a substantial likelihood that the NSA retains, reads, and disseminates WOLA’s international communications because WOLA is communicating with or about persons the government has targeted for Upstream surveillance. For instance, WOLA communicates with foreign government officials located abroad—including at times presidents and foreign ministers. Similarly, it communicates with policymakers, academics, journalists, human rights defenders, victims of human rights abuses, and staff from multilateral institutions, such as the Organization of American States, the Inter-American Development Bank, and the United Nations, some of whom are also likely targets. WOLA’s communications with these contacts frequently concern topics that fall within the FAA’s expansive definition of “foreign intelligence information.” WOLA communicates both with and about these likely targets. WOLA’s international communications contain, among other things, details about its foreign contacts and other important sources of information—details such as the email addresses, phone numbers, and website addresses of foreign individuals and organizations relevant to WOLA’s work.
164. Upstream surveillance undermines WOLA’s ability to conduct its work. WOLA’s research and advocacy depend on the confidentiality of its communications, including its ability to assure its contacts that their communications—and, in some cases, even their identities—will not be revealed. Due in part to NSA surveillance, including Upstream surveillance, WOLA has undertaken burdensome and costly measures to secure and protect its communications, including adopting more secure methods of electronic communication,
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traveling to conduct in-person meetings, and in some instances avoiding sensitive topics or forgoing communications altogether. Despite these precautions, WOLA believes that Upstream surveillance reduces the likelihood that policymakers, foreign government officials, experts, witnesses, and victims of human rights abuses will share sensitive information with WOLA’s staff, because they fear that their communications will be intercepted by the U.S. government and also shared with the other governments, intelligence services, and organizations with which the U.S. government cooperates.
CAUSES OF ACTION 165. Upstream surveillance exceeds the authority granted by 50 U.S.C. § 1881a, and therefore violates 5 U.S.C. § 706. 166. Upstream surveillance violates the Fourth Amendment to the Constitution. 167. Upstream surveillance violates the First Amendment to the Constitution. 168. Upstream surveillance violates Article III of the Constitution.
PRAYER FOR RELIEF WHEREFORE Plaintiffs respectfully request that the Court:
1. Exercise jurisdiction over Plaintiffs’ Complaint; 2. Declare that Upstream surveillance violates 50 U.S.C. § 1881a and 5 U.S.C. § 706; 3. Declare that Upstream surveillance is unconstitutional under the First and Fourth Amendments, and under Article III; 4. Permanently enjoin Defendants from continuing Upstream surveillance; 5. Order Defendants to purge all records of Plaintiffs’ communications in their possession obtained pursuant to Upstream surveillance;
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CCaassee11:1:155-c-cvv-0-000666622-T-TSSEE DDooccuummeennt t7702-1 FFilieledd0066/2/129/1/155 PPaaggee5599oof f6600

6. Award Plaintiffs fees and costs pursuant to 28 U.S.C. § 2412; 7. Grant such other and further relief as the Court deems just and proper.

Dated: June 19, 2015 Baltimore, Maryland

Respectfully submitted,
/s/ Deborah A. Jeon Deborah A. Jeon (Bar No. 06905) jeon@aclu-md.org David R. Rocah (Bar No. 27315) rocah@aclu-md.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND 3600 Clipper Mill Rd., #350 Baltimore, MD 21211 Phone: (410) 889-8555 Fax: (410) 366-7838
/s/ Patrick Toomey Patrick Toomey (pro hac vice) ptoomey@aclu.org
(signed by Patrick Toomey with permission of Debbie A. Jeon) Jameel Jaffer (pro hac vice) jjaffer@aclu.org Alex Abdo (pro hac vice) aabdo@aclu.org Ashley Gorski (pro hac vice) agorski@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654
Charles S. Sims (pro hac vice)
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CCaassee11:1:155-c-cvv-0-000666622-T-TSSEE DDooccuummeennt t7702-1 FFilieledd0066/2/129/1/155 PPaaggee6600oof f6600 csims@proskauer.com David A. Munkittrick (pro hac vice) dmunkittrick@proskauer.com John M. Browning (pro hac vice) jbrowning@proskauer.com PROSKAUER ROSE LLP Eleven Times Square New York, NY 10036 Phone: (212) 969-3000 Fax: (212) 969-2900
57

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

WIKIMEDIA FOUNDATION, et aL,

)

Plaintiffs,

)

)

~

)

)

NATIONAL SECURITY AGENCY I

)

CENTRAL SECURITY SERVICE, et aL, )

Defendants.

)

Case No. 1:15-cv-662

MEMORANDUM OPINION

This is the latest in the recent series of constitutional challenges to the National Security Agency's ("NSA") data gathering efforts. 1 In this case, plaintiffs, nine organizations that communicate over the Internet, allege that the NSA's interception, collection, review, and storing of plaintiffs' Internet communications violates plaintiffs' rights under the First and Fourth Amendments and exceeds the NSA's authority under the Foreign Intelligence Surveillance Act ("FISA"). Typical of these challenges to the NSA's surveillance programs is defendants' threshold jurisdictional contention that plaintiffs lack Article III standing to assert their claims.

This memorandum opinion addresses the standing issue.

1 See Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1144 (2013) (involving a facial challenge to Section 702 of the Foreign Intelligence Surveillance Act); Obama v. Klayman, Nos. 14-5004, 145005, 14-5016, 14-5017, 2015 WL 5058403 (D.C. Cir. Aug. 28, 2015) (involving a challenge to the NSA's bulk collection of telephone metadata produced by telephone companies); Am. Civil Liberties Union v. Clapper, 785 F.3d 787 (2d Cir. 2015) (involving a challenge to the NSA's bulk telephone metadata collection program); Jewel v. Nat'l Sec. Agency, No. C 08-04373, 2015 WL 545925 (N.D. Cal. Feb. 10, 2015), appeal docketed, No. 15-16133 (9th Cir. June 4, 2015) (involving a challenge to the NSA's interception of Internet communications).
I

The nine plaintiff organizations are as follows:
• Wikimedia Foundation ("Wikimedia") is a non-profit organization based in San Francisco, California, that maintains twelve Internet projectsincluding Wikipedia-that provide free content to users around the world.
• The National Association of Criminal Defense Lawyers ("NACDL") is a membership organization based in Washington, D.C., that focuses on criminal defense matters.
• Amnesty International USA, headquartered in New York City, is the largest division of Amnesty International, which focuses on human rights around the world.
• Human Rights Watch is a non-profit human rights organization based in New York City.
• PEN American Center is an association based in New York City that advocates on behalf of writers.
• Global Fund for Women is a non-profit grant-making foundation based in San Francisco, California, and New York City, that focuses on women's rights around the world.
• The Nation Magazine, published by The Nation Company, LLC, is based in New York City and reports on issues related to international affairs.
• The Rutherford Institute is a civil liberties organization based In Charlottesville, Virginia.
• The Washington Office on Latin America is a non-profit organization based in Washington, D.C., that focuses on social justice in the Americas.
The six defendants are the following government agencies and officers:
2 The facts stated here are derived from the amended complaint and "documents incorporated into the complaint by reference," as is appropriate on a motion to dismiss. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Plaintiffs' amended complaint incorporates, inter alia, the Privacy and Civil Liberties Oversight Board Report ("PCLOB Report") (July 2, 2014), the Office of the Director of National Intelligence Report ("ODNI Report") (April 22, 2015), the President's Review Group on Intelligence and Communications Technologies Report ("PRG Report") (Dec. 12, 2013), and [Redacted], 2011 WL 10945618 (FISA Ct. Oct. 3, 2011).
2

• The NSA is headquartered in Fort Mead, Maryland, and is the federal agency responsible for conducting the surveillance alleged in this case.
• The Department of Justice is a federal agency partly responsible for directing and coordinating the activities of the intelligence community, including the NSA.
• The Office of the Director of National Intelligence is a federal agency partly responsible for directing and coordinating the activities of the intelligence community, including the NSA.
• Adm. Michael S. Rogers is the Director of the NSA and the Chief of the Central Security Service.
• James R. Clapper is the Director of National Intelligence ("DNI").
• Loretta E. Lynch is the Attorney General of the United States.
A.
Before setting forth the facts alleged in the amended complaint ("AC"), it is useful to describe briefly the statutory context pertinent to the NSA's data gathering efforts. In 1978, in response to revelations of unlawful government surveillance directed at specific United States citizens and political organizations, Congress enacted FISA to regulate government electronic surveillance within the United States for foreign intelligence purposes. FISA provides a check against abuses by placing certain types of foreign-intelligence surveillance under the supervision of the Foreign Intelligence Surveillance Court ("FISC"), which reviews government applications for surveillance in certain foreign intelligence investigations. See 50 U.S.C. § 1803(a). As originally enacted, FISA required the government to obtain an individualized order from the FISC before conducting electronic surveillance in the United States. See id. § 1804(a). In this respect, the FISC could issue an order authorizing surveillance only if it found that there was "probable cause to believe that the target of the electronic surveillance [was] a foreign power or an agent of a foreign power" and that "each of the facilities or places at which the electronic
3

surveillance [was] directed [was] being used, or [was] about to be used, by a foreign power or an agent of a foreign power." !d. § 1805(a)(2).
In 2008, thirty years after FISA's enactment, Congress passed the FISA Amendments Act, which established procedures and requirements for the authorization of surveillance targeting persons located outside the United States. See 50 U.S.C. §§ 188la-1881g. Specifically, FISA Section 702, 50 U.S.C. § 1881a, "supplements pre-existing FISA authority by creating a new framework under which the [g]overnment may seek the FISC's authorization of certain foreign intelligence surveillance targeting . . . non-U.S. persons located abroad," Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1144 (2013). Section 702 provides that the Attorney General and the Director of National Intelligence may jointly authorize, for up to one year, the "targeting of [non-U.S.] persons reasonably believed to be located outside the United States to acquire foreign intelligence information"3 if the FISC approves "a written certification" submitted by the government that attests, inter alia, that (i) a significant purpose of the acquisition is to obtain foreign intelligence information and (ii) the acquisition will be conducted "in a manner consistent with the [F]ourth [A]mendment" and the targeting and minimization procedures required by statute. 50 U.S.C. § 188la(b), (g). Specifically, before approving a certification, the FISC must find that the government's targeting procedures are reasonably designed:
(i) to ensure that acquisition "is limited to targeting persons reasonably believed to be located outside the United States," id. § 1881a(i)(2)(B)(i); (ii) to prevent the intentional acquisition of wholly domestic communications, id § 1881a(i)(2)(B)(ii); (iii) to "minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons
3 Importantly, the statute expressly prohibits the intentional targeting of any person known at the time of acquisition to be in the United States or any U.S. person reasonably believed to be located outside the United States. 50 U.S.C. § 1881a(b).
4

consistent with the need of the United States to obtain, produce, and disseminate foreign-intelligence information," id § 1801(h)(l); see id. § 188la(i)(2)(C); and (iv) to ensure that the procedures "are consistent with .. . the [F]ourth [A]mendment," id. § 188la(i)(3)(A). In effect, an approval of government surveillance by the FISC means that the surveillance comports with the statutory requirements and the Constitution. Additional details regarding the collection of communications under Section 702 have recently been disclosed in a number of public government reports and declassified FISC opinions. The government has disclosed, for example, that in 2011, Section 702 surveillance resulted in the retention of more than 250 million communications and that in 2014, the government targeted the communications of 92,707 individuals, groups, and organizations under a single FISC Order.4 The total number of U.S. persons' communications that the government has intercepted or retained pursuant to Section 702 remains classified. The government has also disclosed that the NSA conducts two kinds of surveillance pursuant to Section 702. Under a surveillance program called "PRISM,''5 U.S.-based Internet Service Providers furnish the NSA with electronic communications that contain information specified by the NSA. This case concerns the second method of surveillance, which is referred to as "Upstream surveillance."
B.
Plaintiffs challenge the NSA's use of Upstream surveillance, alleging that this mode of surveillance enables the government to collect communications as they transit the Internet
4 See AC ~ 37. The AC cites a redacted FISC Order and a government report for this information. See [Redacted], 2011 WL 10945618, at *9 (FISA Ct. Oct. 3, 2011); ODNI Report, at 1, 2. 5 "PRISM" is a government code name for a data-collection that is officially known as US984XN. See PRISM/US-984XN Overview, April 2013, available at https://www. aclu.org/files/ natsec/nsa/20130816/PRISM%200vervieWO/oC20Powerpoint%20Slides.pdf (last visited Oct. 22, 2015).
5

"backbone," the network of high-capacity cables, switches, and routers that facilitates domestic
and international Internet communication. With the assistance of telecommunications providers,
Upstream surveillance enables the NSA to copy and review "text-based" communications-i.e.,
those whose content includes searchable text, such as emails, search-engine queries, and
webpages-for search terms called "selectors." Importantly, selectors cannot be key words or
names of targeted individuals, but must instead be specific communications identifiers, such as
email addresses, phone numbers, and IP addresses.
Plaintiffs allege that Upstream surveillance encompasses the following four processes,
one or more of which is implemented by telecommunications providers at the NSA's direction:
(i) Copying: Using surveillance devices installed at key access points along the Internet backbone, the NSA intercepts and copies text-based communications flowing across certain high-capacity cables and routers.
(ii) Filtering: The NSA attempts to filter the copied data and discard wholly domestic communications, while preserving international communications. Because the NSA's filtering of domestic communications is imperfect, some domestic communications are not filtered out.
(iii) Content Review: The NSA reviews the copied communications that are not filtered out for instances of tasked selectors.
(iv) Retention and Use: The NSA retains all communications that contain selectors associated with its targets and other communications that were bundled in transit with the targeted communications; NSA analysts may read and query the retained communications and may share the results with the FBI.
See AC ~~ 40, 47-49.6
Plaintiffs emphasize two aspects of Upstream surveillance. First, surveillance under that
program is not limited to communications sent or received by the NSA's targets, as the
government has acknowledged that, as part of Upstream surveillance, the NSA also engages in
what is called "about surveillance"-the searching of Internet communications that are about its
6 Plaintiffs' description of Upstream surveillance is based on the PCLOB Report, at 32-41. 6

targets. AC ~ 50. In other words, plaintiffs allege that the NSA intercepts substantial quantities of Internet traffic and examines those communications to determine whether they include references to the NSA's search terms. Second, Upstream surveillance implicates domestic communications because (i) the NSA' s filters are imperfect, (ii) the NSA sometimes mistakes a domestic communication for an international one, and (iii) the NSA retains communications that happen to be bundled, while in transit, with communications that contain selectors.
All nine plaintiffs allege that the NSA uses Upstream surveillance to copy their Internet communications, filter the large body of collected communications in an attempt to remove wholly domestic communications, and then search the remaining communications with "selectors," looking for potentially terrorist-related foreign intelligence information. Plaintiffs further claim that these government actions invade their privacy-as well as the privacy of their staffs, Wikimedia's users, and NACDL's members-and infringe on plaintiffs' rights to control their communications and the information therein. Plaintiffs also allege that the NSA intercepts, copies, and reviews two other categories of cotnmunications specific to Wikimedia: (i) the over one trillion annual communications that plaintiffs claim occur when individuals around the globe view and edit Wikimedia websites and interact with one another on those sites; and (ii) Wikimedia's logs of online requests by such users to view its webpages. In addition to the claimed interception, copying, and selector review of their communications, plaintiffs allege that there is a "substantial likelihood" that plaintiffs' communications are retained, read, and disseminated by the NSA. Id. ~ 71. This is so, plaintiffs allege, because plaintiffs, their members, and their employees communicate online with people whom the government is likely to target when conducting Upstream surveillance, and a significant amount of the information plaintiffs, their members, and their employees exchange with those persons constitutes "foreign
7

intelligence information" under FISA. ld. ~ 74. Plaintiffs further allege that Upstream surveillance undermines their ability to carry out activities crucial to their missions (i) by forcing them to take burdensome measures to minimize the risk that the confidentiality of their sensitive information will be compromised and (ii) by reducing the likelihood that individuals will share sensitive information with them.
Plaintiffs claim that the alleged injuries result from the NSA's use of Upstream surveillance that violates the First and Fourth Amendments of the Constitution and exceeds the government's authority under Section 702.7 By way of relief, plaintiffs seek a declaration that Upstream surveillance is unlawful, an injunction prohibiting the NSA from using Upstream surveillance to intercept plaintiffs' communications, and a purge from government databases of any of plaintiffs' communications acquired through Upstream surveillance.
Defendants have moved to dismiss plaintiffs' AC pursuant to Rule 12(b)(l), Fed. R. Civ. P., on the ground that plaintiffs lack Article III standing to contest the legality of the NSA's Upstream surveillance because plaintiffs have not alleged facts that plausibly establish an actual injury attributable to the NSA's Upstream surveillance.
II. Article III limits the jurisdiction of federal courts to certain "Cases" and "Controversies." U.S. Const. art. III, § 2, cl. 2. As the Supreme Court has made clear, one "essential and unchanging part of the case-or-controversy requirement" is that a plaintiff must establish Article III standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A plaintiff establishes Article III standing by showing that he seeks relief from an injury that is "'concrete,
7 Of course, the FISC opinion that relates to the data collection practices challenged here is unavailable because it is classified. It would be helpful and generally beneficial to the public for FISC opinions to be published by way of either declassification or redaction.
8

particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling."' Clapper, 133 S. Ct. at 1147 (quoting Monsanto Co. v. Geerston Seed Farms, 561 U.S. 139, 149 (2010)). The alleged injury must be "real and immediate," not "conjectural or hypothetical," City of Los Angeles v. Lyons, 461 U.S. 95, 201 (1983). The Supreme Court has "repeatedly reiterated that ' [a] threatened injury must be certainly impending to constitute injury in fact,' and that '[a]llegations of possible future injury' are not sufficient." Clapper, 133 S. Ct. at 1147 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)) (emphases in original). Importantly, the standing inquiry is "especially rigorous when reaching the merits of the dispute would force [a court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional," particularly "in the fields of intelligence gathering and foreign affairs." Clapper, 133 S. Ct. at 1147.
Because standing is a threshold jurisdictional requirement, it may be attacked at any time, including at the outset of a case pursuant to Rule 12(b)(1), Fed. R. Civ. P. As the Fourth Circuit has made clear, where, as here, "standing is challenged on the pleadings, [a court must] accept as true all material allegations of the complaint and construe the complaint in favor of the complaining party." David v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013) (citing Pennell v. City of San Jose, 485 U.S. 1, 7 (1988)). But a court should not "take account of allegations in the complaint labeled as fact but that constitute nothing more than 'legal conclusions' or 'naked assertions."' ld. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A complaint must contain "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face."' Ashcroft, 556 U.S. at 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Standing is adequately alleged only if the "well-pleaded allegations" allow for a
9

"reasonable inference," rather than a "sheer possibility," that the plaintiff has standing, Iqbal, 556 U.S. at 678-79; David, 704 F.3d at 333.8
III.
Clapper v. Amnesty International is the Supreme Court's most recent pronouncement on
standing with respect to litigants challenging the NSA' s data gathering efforts, and therefore is
the leading case in this series. In Clapper, the plaintiffs argued that they had standing to bring a
facial challenge to Section 702 because there was an "objectively reasonable likelihood" that
plaintiffs' communications "[would] be intercepted" in the future. 133 S. Ct. at 1147. The
Supreme Court rejected this "novel view of standing" because plaintiffs' "speculative chain of
possibilities [did] not establish that injury based on future surveillance [was] certainly impending
or [was] fairly traceable to [Section 702 surveillance]." /d. at 1146, 1150. Of course, if the
alleged facts and arguments in this case are essentially identical to those in Clapper, then
Clapper must control the result reached here. On the other hand, if plaintiffs in this case present
facts and arguments that are different from those asserted in Clapper, then those facts and
arguments must be carefully considered to determine whether they compel a result different from
Clapper.
8 As the parties correctly note, a jurisdictional motion to dismiss may be brought as a facial or factual challenge. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). On a factual challenge, "a trial court may go beyond the allegations of the complaint . .. [and] consider evidence by affidavit, depositions or live testimony without converting the proceeding to one for summary judgment." Id; see also Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009). When appropriate, a court may also grant jurisdictional discovery to ensure that the record is fully developed. See, e.g., Animators at Law, Inc. v. Capital Legal Solutions, LLC, 786 F. Supp. 2d 1114, 1115 n.2 (E.D. Va. 2011) (granting jurisdictional discovery "to allow consideration of [a] pivotal issue on a more complete record"). Here, defendants have brought a facial challenge, but have also submitted declarations and accompanying exhibits not incorporated by reference in the complaint. As plaintiffs correctly note, this additional evidence is properly considered only if the motion to dismiss is decided on a factual-rather than facial-basis. Because the dispute can be resolved on the face of the complaint, the additional declarations and exhibits are not considered.
10

In the course of oral argument, plaintiffs' counsel was asked to identify the facts and arguments in this case that are different from those asserted in Clapper.9 Plaintiffs' counsel
identified four differences: (i) the legal standard in this case is different from the legal standard that controlled in Clapper because the standing challenge here arises on a motion to dismiss rather than, as in Clapper, on a motion for summary judgment. (ii) far more is known about Section 702 surveillance, including Upstream surveillance, than was known at the time of Clapper; (iii) the Upstream surveillance at issue here is fundamentally different from the surveillance at issue in Clapper; and (iv) plaintiffs here are different from the Clapper plaintiffs in important respects concerning their Internet communications.10
Clearly there are differences between the facts and arguments raised in this case and those raised in Clapper, but the question is not simply whether there are differences, but whether those differences compel the same or a different result from the result reached in Clapper.
Before addressing plaintiffs' arguments, it is important to describe Clapper in more detail. Plaintiffs in Clapper brought a facial challenge to Section 702, seeking a declaration that Section 702 was unconstitutional and an injunction against the surveillance authorized by that provision. 133 S. Ct. at 1142-46. The Supreme Court's opinion began its consideration of the standing issue by reviewing what was known and alleged concerning the NSA' s surveillance practices under Section 702. Specifically, the Supreme Court explained that Section 702 surveillance "[was] subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment," emphasizing that the government must obtain the FISC's "approval of 'targeting' procedures, 'minimization' procedures, and a
9 Mot. to Dismiss Hr'g Tr. 19:13-16 (Sept. 25, 2015). 10 Jd. at 20:4-6, 21:12-14, 23:4-7,27:17-21.
11

governmental certification regarding proposed surveillance." Id. at 1144, 1145 (quoting 50
U.S.C. § 1881a(a), (c)(l), (i)(2), (i)(3)). As the Supreme Court's opinion noted, "the [FISC's]
role includes determining whether the [g]overnment's certification contains the required
elements"11 and whether the government's targeting procedures are "'reasonably designed' (1) to
'ensure that an acquisition ... is limited to targeting persons reasonably believed to be located
outside the United States' and (2) to 'prevent the intentional acquisition of any communication as
to which the sender and all intended recipients are known ... to be located in the United States."
Jd. at 1135 (quoting 50 U.S.C. § 1881a(i)(2)(B)).
The Supreme Court explained that in attempting to establish standing, the Clapper
plaintiffs did not provide "any evidence that their communications ha[d] been monitored under"
any program authorized by Section 702. Id. at 1148. Instead, plaintiffs argued that they had
standing because there was an "objectively reasonable likelihood" that plaintiffs'
communications "[would] be intercepted" in the future. Jd. at 1147. The Supreme Court's
opinion characterized plaintiffs' argument as a "speculative chain of possibilities," id. at 1150. 12
11 As the Clapper majority further explained, the "[g]overnment's certification must attest" (1) that the procedures in place "'have been approved, have been submitted for approval, or will be submitted with the certification for approval by the [FISC]"' and "'are reasonably designed' to ensure that an acquisition is 'limited to targeting persons reasonably believed to be located outside' the United States;" (2) that the "minimization procedures adequately restrict the acquisition, retention, and dissemination of nonpublic information about unconsenting U.S. persons, as appropriate;" (3) that "guidelines have been adopted to ensure compliance with targeting limits and the Fourth Amendment;" and (4) that "the procedures and guidelines referred to above comport with the Fourth Amendment." ld. at 1145 (quoting 50 U.S.C. § 1881a(g)(2)). 12 The speculative chain consisted of five contingencies: (i) that the "[g]overnment [would] decide to target the communications of non-U.S. persons with whom [plaintiffs] communicate;" (ii) that in targeting those communications, "the [g]overnment [would] choose to invoke its authority under [Section 702] rather than utilizing another method of surveillance;" (iii) that "the Article III judges who serve on the [FISC would] conclude that the Government's proposed surveillance procedures satisfy [Section 702's] many safeguards and are consistent with the Fourth Amendment;" (iv) that upon such a finding by the FISC, "the Government [would]
12

The Clapper plaintiffs also argued that "they should be held to have standing because otherwise the constitutionality of [Section 702 surveillance] could not be challenged" and would be "insulate[d)" from "meaningful judicial review." The Supreme Court rejected that argument as "both legally and factually incorrect." !d. at 1154. The Supreme Court explained that Section 702 surveillance orders are not in fact insulated from judicial review because (i) the FISC reviews targeting and minimization procedures of Section 702 surveillance, (ii) criminal defendants prosecuted on the basis of information derived from Section 702 surveillance are given notice of that surveillance and can challenge its validity, and (iii) electronic communications service providers directed to assist the government in surveillance may challenge the directive before the FISC. /d. Even if these other avenues for judicial review were not available, the Supreme Court made clear that "'[t]he assumption that if [plaintiffs] have no standing to sue, no one would have standing, is not a reason to find standing."' !d. (quoting Valley Forge Christian College v. Americans Unitedfor Separation ofChurch and State, Inc., 454 U.S. 464,489 (1982)).
In holding that plaintiffs' alleged injury was speculative, the Clapper majority rejected the approach advocated by the dissenting Justices. The dissent relied on "commonsense inferences" to find a "very high likelihood" that the government would "intercept at least some of' plaintiffs' communications. !d. at 1157 (Breyer, J., dissenting). Specifically, the dissent concluded that (i) the plaintiffs regularly engaged in the type of electronic communications that the government had "the capacity" to collect, (ii) the government was "strong[ly] motiv[ated]" to intercept for counter-terrorism purposes the type of communications in which plaintiffs engaged, and (iii) the government had in fact intercepted the same type of communications on thousands
succeed in intercepting the communications of plaintiffs' contacts;" and (v) that "[plaintiffs would] be parties to the particular communications that the Government intercept[ed]." !d. at 1148.
13

of occasions in the past. /d. at 1157-59 (Breyer, J. dissenting). The dissent also noted that the government had not "describe[d] any system for avoiding the interception of an electronic communication" to which plaintiffs were a party. /d. at 1159. Without evidence that a system was in place to prevent government interception of plaintiffs' communications,13 the dissent reasoned that "we need only assume that the [g]overnment is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the [g]overnment will intercept at least some electronic communication to which at least some of the plaintiffs are parties." Id.
In essence, the Supreme Court held that the Clapper plaintiffs' chain of probabilities and inferences-based on the government's capacity and motivation to intercept communications similar to the Clapper plaintiffs' communications-was speculative, and therefore did not establish standing. The dissent, on the other hand, was convinced that such inferences and probabilities were sufficient to establish standing. At issue here is whether the four differences plaintiffs have identified compel the same or a different result from the result reached in Clapper. Each of plaintiffs' arguments with respect to those differences is separately addressed.
A.
Plaintiffs first argue that Clapper does not control here on the ground that the legal standard in this case is different from the legal standard applicable in Clapper because the standing challenge in the present case arises on a motion to dismiss rather than, as in Clapper, on a motion for summary judgment. To the extent this argument refers to the difference between reliance on factual allegations and reliance on a factual record, plaintiffs are undoubtedly correct.
13 The majority noted that "[t]he dissent attempt[ed] to downplay the safeguards," as it "[did] not directly acknowledge that [Section 702] surveillance must comport with the Fourth Amendment ... and that the [FISC] must assess whether targeting and minimization procedures are consistent with the Fourth Amendment." /d. at 1145 n.3.
14

The Supreme Court has made clear that, because the elements of standing are "an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages in litigation." Lujan, 504 U.S. at 561. At the summary judgment stage, a plaintiff cannot rest simply on allegations, but must '"set forth' by affidavit or other evidence 'specific facts;"' at the motion to dismiss stage, however, "allegations of injury resulting from defendant's conduct may suffice." Id. at 561 (quoting Rule 56(2), Fed. R. Civ. P.).
But to say the evidentiary basis is different is not to say that the standing requirements change at each successive stage. They do not. The means by which a plaintiff establishes standing-by allegation or by record evidence-changes, but the three elements of standingactual injury, causation, and redressability-remain constant and applicable at all stages of the case. This is so because standing is a jurisdictional requirement that "is an essential and unchanging part of the case-or-controversy requirement of Article III." ld. at 560. Indeed, the three elements of standing are the "irreducible constitutional minimum" that "set[] apart the 'Cases' and 'Controversies' that are of the sort referred to in Article III-'serv[ing] to identify those disputes which are appropriately resolved through the judicial process." !d. (quoting U.S. Const. art. III,§ 2, cl. 2; Whitmore, 495 U.S. at 155).
Thus, to withstand defendants' standing challenge on a motion to dismiss, plaintiffs must allege facts that plausibly establish (i) that there is an "injury in fact-an invasion of a legally protected interest which is concrete and particularized and actual or imminent, not conjectural or hypothetical;" (ii) that the injury is "fairly trace[able] to the challenged action of the defendant;" and (iii) that it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." !d. at 560-61. A court must, of course, "accept as true all material
15

allegations of the complaint and construe the complaint in favor of the complaining party," but a court should not "take account of allegations in the complaint labeled as fact but that constitute nothing more than 'legal conclusions' or 'naked assertions."' David, 704 F.3d at 333 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In short, a complaint alleges facts that plausibly establish standing only if the "well-pleaded allegations" allow for a "reasonable inference," rather than a "sheer possibility," that the plaintiff has satisfied each of the three elements of standing. Iqbal, 556 U.S. at 678-79; David, 704 F.3d at 333.
In sum, the standing requirement-the "irreducible constitutional minimum"-applies here just the same as it applied in Clapper. Lujan, 504 U.S. at 560. Moreover, the result in Clapper-that standing cannot be established on the basis of a "speculative chain of possibilities"-also applies here. 133 S. Ct. at 1150. Whether speculation is based on allegations in a complaint or facts in a record has no bearing on the outcome, as in neither context may standing be established on a "speculative chain of possibilities." !d.
B.
Plaintiffs next argue that Clapper does not control this case because more is now known about Section 702 surveillance, including Upstream surveillance, than was known at the time of Clapper. Plaintiffs cite in their AC several publicly disclosed documents in support of the allegation that the NSA uses Upstream surveillance to intercept substantially all international text-based Internet communications, including plaintiffs' communications. 14 Specifically, plaintiffs describe the technical features that enable the NSA to use Upstream surveillance to copy and review all or substantially all international text-based Internet communications, and the "strategic imperatives" that compel it to do so. Pls. Opp. Br. at 17. The AC alleges that:
14 The AC cites, among other things, the PCLOB Report, the ODNI Report, the PRG Report, and [Redacted], 2011 WL 10945618 (FISA Ct. Oct. 3, 2011).
16

(i) the Internet backbone funnels most communications entering or leaving the United States through 49 international chokepoints, AC ~ 46;
(ii) the NSA has installed surveillance equipment at seven of those chokepoints, and the NSA has a strong incentive to intercept communications at more
chokepoints in order to obtain the communications it seeks, id. ljf'if 65-66, 68;
(iii) the installed surveillance equipment is capable of "examin[ing] the contents of all transmissions passing through," id. ~ 62 (quoting PCLOB Report, at 122);
(iv) in order to identify the targeted communications, the NSA must copy and
review the contents of an enormous quantity of transiting communications, id. ljf'if
50,51,62;and
(v) because the NSA cannot know in advance which Internet "packets"15 relate to its targets, the NSA, in order to be successful, must copy and reassemble all the packets associated with international text-based communications that transit the circuits it is monitoring, id. 'if~ 42, 63-64.
Plaintiffs' series of allegations does not establish Article III standing because those
allegations depend on suppositions and speculation, with no basis in fact, about how the NSA
implements Upstream surveillance. Specifically, plaintiffs assume that the fact that Upstream
surveillance equipment has been installed at some of the Internet backbone chokepoints implies
that the NSA is intercepting all communications passing through those chokepoints. That may or
may not be so; plaintiffs merely speculate that it is so. Even if the NSA's surveillance equipment
is capable of "examin[ing] the contents of all transmissions passing through collection devices,"
as plaintiffs allege, id. 'if 62, it does not follow that the NSA is, in fact, using the surveillance
equipment to its full potential. As with any piece of technology, technical capability is not
tantamount to usage levels. For example, a car capable of speeds exceeding 200 mph is not
necessarily driven at such speeds; more information is needed to conclude that the top speed is
reached. And there may indeed be circumstances that suggest a limited level of use-e.g., a
15 All Internet communications are broken into "packets"-discrete chunks of information-that traverse a variety of physical circuits. AC ~ 42. Once the packets that make up a particular communication reach their final destination, they are reassembled. !d.
17

speed limit of 70 mph. The same is true here. Plaintiffs provide no factual basis to support the allegation that the NSA is using its surveillance equipment at full throttle, 16 and the fact that all
NSA surveillance practices must survive FISC review-i.e., must comport with the Fourth
Amendment-suggests that the NSA is not using its surveillance equipment to its full potential.
In addition, plaintiffs assume that the NSA must be intercepting communications at all 49
chokepoints because the NSA has a strong incentive to do so. But apart from plaintiffs'
suppositions and speculation concerning the government's incentive and decision to act in
accordance with that incentive, plaintiffs provide no factual basis that the NSA is actually
intercepting communications at all chokepoints.
Plaintiffs cannot provide a sufficient factual basis for their allegations because the scope
and scale of Upstream surveillance remain classified, leaving plaintiffs to prop their allegation of
actual injury on suppositions and speculation about how Upstream surveillance must operate in
order to achieve the government's "stated goals." AC ~ 64. Indeed, plaintiffs cite the
government's so-called "stated goals" in nearly every facet of their argument, specifically in
support of their allegations regarding: (i) the volume of communications collected by Upstream
surveillance, Pis. Opp. at 22, 28; (ii) the geographic distribution of the sites at which Upstream
collection occurs, id. at 25; and (iii) the scope of Upstream surveillance at any site where it
occurs, id. at 23, 30. It is, of course, a "possibility" that the NSA conducts Upstream surveillance
16 Plaintiffs' AC cites a newspaper article that claimed "the N.S.A. is temporarily copying and then sifting through the contents of what is apparently most e-mails and other text-based communications that cross the border." Charlie Savage, N.S.A. Said to Search Content of Messages to and from U.S., N.Y. Times, Aug. 8, 2013, http://nyti.ms/1E1nlsi. But the article's claim is speculative, as it is based on a publicly disclosed document that says the NSA "seeks to acquire communications about the target that are not to or from the target" but does not indicate that the NSA is actually acquiring vast amounts of internet communications. Id. Indeed, the PCLOB Report-another document on which plaintiffs rely-refers to the article's claim as "represent[ing] a misunderstanding of a more complex reality." PCLOB Report, at 119.
18

in the manner plaintiffs allege, but this "bare assertion[]" is unaccompanied by "factual matter"
that raises it "above a speculative level," and hence does not establish standing. Iqbal, 556 U.S.
at 681.
In sum, plaintiffs are correct that more is known about the nature and capabilities of NSA
surveillance than was known at the time of Clapper, but no more is known about whether
Upstream surveillance actually intercepts all or substantially all international text-based Internet
communications, including plaintiffs' communications. Thus, although plaintiffs' speculative
chain is shorter than was the speculative chain in Clapper, it is a chain of speculation
nonetheless. And Clapper makes clear that it is not the length of the chain but the fact of
speculation that is fatal. Indeed, plaintiffs' reliance on the government's capacity and motivation
to collect substantially all international text-based Internet communications is precisely the sort of speculative reasoning foreclosed by Clapper. 17 An alleged injury that is "speculative" does not
establish Article III standing, especially the standing of litigants who seek to challenge the
constitutionality of government action in the field of foreign intelligence. Clapper, 133 S. Ct. 1147-50. 18
17 As described above, the Supreme Court in Clapper rejected the argument that standing could be based on a "very strong likelihood" that the NSA would "intercept at least some of plaintiffs' communications" based on speculation about the government's "motivat[ion]" to exercise its "capacity" for such interception. 133 S. Ct. at 1159 (Breyer, J., dissenting). The same line of speculative reasoning was recently rejected by the D.C. Circuit in a case involving NSA surveillance. Klayman, 2015 WL 5058403, at *7 (Williams, J.) (holding that the plaintiffs' standing to challenge NSA bulk collection of telephone records could not be grounded in "their assertion that NSA's collection must be comprehensive in order for the program to be most effective"). 18 See also Klayman, 2015 WL 5058403, at *6 (Williams, J.) (noting that, although plaintiff may plausibly show why "the effectiveness of the program [would] expand with its coverage," such a showing does not make plaintiffs' claims of actual injury any less speculative).
19

c.
Plaintiffs further allege that Clapper does not control here because newly disclosed information reveals that Upstream surveillance is fundamentally different from the surveillance at issue in Clapper. Specifically, Upstream surveillance involves the use of "about surveillance," which the NSA allegedly uses to review every portion of everyone's communications-a broader mode of surveillance than the targeted surveillance of particular individuals' communications that was at issue in Clapper. Plaintiffs contend that "about surveillance" is the "digital analogue of having a government agent open every piece of mail that comes through the post to determine whether it mentions a particular word or phrase." Pis. Br. at 10. This analogy is inapt; contrary to plaintiffs' contention, the publicly disclosed documents on which plaintiffs rely do not state facts that plausibly support the proposition that "about surveillance" involves examining every portion of every copied communication. According to the PCLOB Report cited by plaintiffs,
[T]he NSA's 'upstream collection' ... may require access to a larger body of international communications than those that contain a tasked selector[,] ... [but] the government has no ability to examine or otherwise make use of this larger body of communications, except to promptly determine whether any of them contain a tasked selector. PCLOB Report, at Ill n.476. Indeed, "[o]nly those communications ... that contain a tasked selector go into government databases." /d. Thus, plaintiffs contention that "about surveillance" is like the hypothetical government agent reading every piece of mail misses the mark. Unlike the hypothetical government agent reading every word of every communication and retaining the information, "about surveillance" is targeted insofar as it makes use of only those communications that contain information matching the tasked selectors. Even if plaintiffs' description of "about surveillance" were correct, it would not change the result reached here. Plaintiffs' claim of actual injury resulting from "about surveillance" rests
20

on plaintiffs' allegation that the NSA uses Upstream surveillance to intercept substantially all international text-based Internet communications. And as already discussed, that allegation is a "bare assertion[]" unaccompanied by "factual matter" that raises it "above a speculative level." See Iqbal, 556 U.S. at 681; see also Clapper, 133 S. Ct. at 1150. Details about the tools of Upstream surveillance reveal how Upstream surveillance functions when the NSA engages in that mode of surveillance, but those details do not cure the speculative foundation on which plaintiffs' claim of actual injury is based-that the NSA is in fact using Upstream surveillance to intercept substantially all text-based international Internet communications, including plaintiffs' communications.
D.
Plaintiffs next argue that Clapper does not control here because plaintiffs are different from the Clapper plaintiffs in important respects concerning their Internet communications. Although six of the nine plaintiffs in this case were plaintiffs in Clapper, plaintiffs identify two differences related to the new parties: (i) two clients of an NACDL attorney have received notice that they are targets of Section 702 surveillance and (ii) Wikimedia engages in over one trillion communications each year that are distributed around the globe. 1. NACDL Attorney Dratel
With respect to the first difference, plaintiffs argue that they adequately allege an actual injury because the government acknowledged that NACDL attorney Joshua Dratel's client, Agron Hasbajrami, was subject to Section 702 surveillance and another Dratel client, Sabirhan Hasanoff, was prosecuted on the basis of officially acknowledged Section 702 surveillance. 19
19 See Letter re Supplemental Notification, United States v. Hasbajrami, 1: 11-cr-00623, ECF No. 65 (E.D. N.Y. Feb. 24, 2014); See Mem. Of Law, Hasanoff v. United States, 10 Cr. 162 (S.D.N.Y. Feb. 11, 2015), ECF No. 208, at 10-11.
21

Plaintiffs allege that as a result of this government acknowledged surveillance, Dratel's own international Internet communications were likely intercepted and retained because he almost certainly communicated with or about the targeted foreign individuals tn the course of representing his clients. As plaintiffs note, Dratel' s scenario is similar to a hypothetical mentioned in Clapper, in which the government "monitors [a] target's conversations with his or her attorney." 133 S. Ct. at 1154. The Supreme Court in Clapper described such a scenario as likely "hav[ing] a stronger evidentiary basis for establishing standing" than the Clapper plaintiffs had. /d. at 1154.
Here, however, the facts alleged differ from the Clapper hypothetical in important respects. The Supreme Court in Clapper was describing a situation in which there was some basis for an allegation that the government had "monitor[ed a] target's conversations with his or her attorney" using the type of surveillance at issue in the case, not a situation where an attorney lacks "concrete evidence to substantiate [his] fears." /d. Plaintiffs in this case, by contrast, do not allege facts that plausibly establish that the information gathered from the two instances of Section 702 surveillance was the product of Upstream surveillance. In neither of Dratel' s cases did the government indicate whether the information at issue was derived from PRISM or Upstream surveillance, and no factual allegations in the AC plausibly establish that Upstream surveillance-rather than PRISM-was used to collect the information. Moreover, given what is known about the two surveillance programs, it appears substantially more likely that PRISM collection was used in these cases because, according to a 2011 FISC Order, the "vast majority" of collected communications are obtained via PRISM, not Upstream surveillance. [Redacted], 2011 WL 10945618, at *9 (FISA Ct. Oct. 3, 2011) (finding that "upstrerun collection
22

constitute[d) only approximately 9% of the total Internet communications [then] acquired by [the] NSA under Section 702"). 2. Wikimedia
Plaintiffs next allege that Wikimedia has standing because it is "virtually certain" that Upstream surveillance has intercepted at least some of Wikimedia's communications given the volume and geographic distribution of those communications. Specifically, Wikimedia allegedly engages in more than one trillion international text-based Internet communications each year and exchanges information with individuals in nearly every country on earth.
At the outset, an important implication of plaintiffs' allegation regarding Wikimedia's Internet communications must be noted. Plaintiffs have not alleged that any of the other eight plaintiffs (besides Wikimedia) engage in a substantial number of text-based international Internet communications. Indeed, plaintiffs simultaneously allege that (i) all nine plaintiffs "collectively engage in more than a trillion sensitive international [I]nternet communications each year," AC ~ 58; and (ii) "Wikimedia engages in more than one trillion international communications each year," id. at~ 88. The AC does not quantify the other eight plaintiffs' communications. Thus, insofar as plaintiffs seek to establish standing on the basis of probabilities grounded in the volume of communications, plaintiffs' effort is limited to Wikimedia, as the AC says nothing about the volume of the other plaintiffs' communications.
With respect to Wikimedia, plaintiffs contend that Wikimedia's communications traverse all of the chokepoints at which the NSA conducts Upstream surveillance, however many that may be.20 Plaintiffs argue that, because Upstream surveillance could achieve the government's
20 The government has acknowledged using Upstream surveillance to monitor communications
on more than one "international Internet link" or "circuit" on the Internet backbone. /d. at *15;
23

stated goals only ifUpstream surveillance involved the copying and review of a large percentage of internatinoal text-based Internet traffic at each chokepoint that is monitored, it is virtually certain that the government has copied and reviewed at least one of Wikimedia's communications. Specifically, plaintiffs assume a 0.00000001% chance that any particular textbased Internet communication will be copied and reviewed by the NSA to conclude that the odds of the government copying and reviewing at least one of plaintiffs' over one trillion communications in a one-year period would be greater than 99.9999999999%. AC ~58. Given the large volume of Wikimedia's communications with individuals all over the world, plaintiffs claim that some of Wikimedia's communications almost certainly traverse every major Internet circuit connecting the United States with the rest of the world. !d. ~ 61.
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 Wikimedia's over one trillion annual Internet communications is significant in volume.21 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. Here, the relevant universe for comparison purposes is the total number of annual Internet communications, a figure that plaintiffs do not provide-nor even attempt to estimate-in the AC. Without defining the universe of the total number of Internet communications, it is impossible to determine whether
PCLOB Report 36-37. Plaintiffs, citing a publicly disclosed NSA document, allege that the NSA has installed Upstream surveillance equipment at seven of the 49 chokepoints. See AC ~ 68. 21 AC ~58 ("[T]he sheer volume of [p]laintiffs' communications makes it virtually certain that the NSA has intercepted, copied, and reviewed at least some of those communications.").
24

Wikimedia's alleged one trillion annual Internet communications is significant or just a drop in the bucket of all annual Internet communications.
Moreover, plaintiffs conclude that there is a greater than 99.9999999999% chance that the NSA has intercepted at least one of their over one trillion communications on the basis of an arbitrary assumption, namely that there is a 0.00000001% chance that the NSA will intercept any particular Internet communication. AC ~ 58. Plaintiffs provide no basis for the 0.00000001% figure, nor do they explain why the figure is presented as a conservative assumption?2 Plaintiffs seem to presume a string of zeros buys legitimacy. It does not. Indeed, a closer looks reveals that the number of zeros chosen by plaintiffs leads conveniently to plaintiffs desired result. If three more zeros are added to plaintiffs' figure (0.00000000001 %), the odds that at least one of Wikimedia's one trillion annual communications is intercepted drops to approximately 10%. If four more zeros are added (0.000000000001 %), the odds that at least one of Wikimedia's communications is intercepted drops to 1o/o. In short, plaintiffs' assumption appears to be the product of reverse engineering; plaintiffs first defined the conclusion they sought-virtual certainty-and then worked backwards to find a figure that would lead to that conclusion. Mathematical gymnastics of this sort do not constitute "sufficient factual matter" to support a "plausible" allegation. Ashcroft, 556 U.S. at 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). And contrary to plaintiffs' efforts, the "speculative" reasoning foreclosed by Clapper cannot be avoided by dressing "a chain of possibilities" in the clothing of mathematical certainty when the calculation lacks a statistical basis. 133 S. Ct. at 1150.23
22 ld. ("even if one assumes a 0.00000001% chance" that ''the NSA [intercepts] any particular communication") (emphasis added). 23 Plaintiffs' probability analysis also assumes that (i) the chance of interception for each communication is the same and (ii) the interception of one communication does not affect the
25

Furthermore, plaintiffs' allegation that interception of Wikimedia's communications is virtually certain fails for a more fundamental reason. Logically antecedent to plaintiffs' flawed statistical analysis are plaintiffs' speculative claims about Upstream surveillance based on limited knowledge of Upstream surveillance's technical features and "strategic imperatives." Pis. Opp. Br. at 17. In other words, the "virtual certainty" plaintiffs allege assumes that the NSA is actually using Upstream surveillance in the way plaintiffs suppose is necessary for that mode of surveillance to achieve the NSA' s stated goals. 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. Indeed, the Supreme Court in Clapper rejected the argument that standing could be based on a "very strong likelihood" that the NSA would "intercept at least some of plaintiffs' communications" based on speculation about the government's "motivat[ion]" to exercise its "capacity" for such interception. 133 S. Ct. at 1159 (Breyer, J. dissenting). Relying on a speculative foundation regarding how Upstream surveillance must operate, plaintiffs fail to allege that an injury is "real and immediate" rather than "conjectural or hypothetical." Lyons, 461 U.S. at 201. This is true regardless of how probable NSA interception of Wikimedia's
odds of any other communication's interception. In other words, plaintiffs assume that a communication from Syria has the same likelihood of being intercepted as a communication from Canada and that the fact that a communication from a Syrian computer has been intercepted has no bearing on the likelihood that a subsequent communication sent from the same computer in Syria will be intercepted. Moreover, plaintiffs provide no evidence of how many of Wikimedia's international Internet communications are transmitted to or from areas of the world in which interception is more likely.
26

communications would be if the NSA were in fact routinely using Upstream surveillance to intercept substantial quantities of text-based Internet communications?4
In the end, plaintiffs' standing argument boils down to suppositions about how Upstream
surveillance must operate in order to achieve the government's stated goals. Of course, in a case
like this, plaintiffs necessarily rely on probabilities and speculation because most facts about Upstream surveillance remain classified, and hence plaintiffs see through a glass darkly. Nevertheless, the speculative reasoning plaintiffs advance is not a basis for standing under Clapper. See id. at 1147-50. To see why this must be so, consider the risks of error at play on a threshold standing question. On the one hand, a court that does not find standing on the basis of probabilities and suppositions runs the risk of a false negative--closing the courthouse doors to a plaintiff who suffers an actual injury fairly traceable to the defendant. On the other hand, a court that bases standing on such speculation runs the risk of a false positive-proceeding in a litigation that is not a "Case[]" or "Controvers[y]" under Article III. U.S. Const. art. III, § 2, cl. 2. Obviously, both risks of error should be avoided where possible, but where, as here, a court is confronted with substantial uncertainty, the risk of a false positive is of greater concern because it implicates an existential question about the litigation-whether it is, in fact, a case or controversy-and the limits of the judiciary's power in relation to the other branches of
24 Plaintiffs also cite a publicly disclosed NSA document, which states that "HTTP" is used in "nearly everything a typical user does on the Internet" and identifies Wikipedia (along with several other well-known websites) as an example of a source of HTTP communications. AC ~ 107. But as defendants correctly point out, the document does not help to establish an injury to Wikimedia that is fairly traceable to Upstream surveillance because it neither identifies Upstream surveillance nor gives any indication that the NSA is actually collecting the communications of the websites listed.
27

govemment.25 As the Supreme Court recognized in Clapper, this is especially true where, as
here, "reaching the merits of the dispute would force [a court] to decide whether an action taken
by one of the other two branches of the Federal Government was unconstitutional," particularly
"in the fields of intelligence gathering and foreign affairs." Clapper, 133 S. Ct. at 1147. Thus, as
Clapper dictates, standing cannot be established on the basis of mere speculation. See id. at
1147-50. Accordingly, plaintiffs in this case lack standing on that ground to challenge the NSA's use ofUpstream surveillance.26
IV.
Plaintiffs further allege actual injury on the ground that Upstream surveillance
undennines plaintiffs' ability to carry out activities crucial to their missions (i) by forcing them
to take burdensome measures to minimize the chance that the confidentiality of their sensitive
infonnation will be compromised and (ii) by reducing the likelihood that individuals will share
sensitive infonnation with them. Attorney Dratel, for example, allegedly employed burdensome
electronic security measures to protect his communications with his clients and, in some
instances, travelled abroad to gather infonnation in person.
The Clapper plaintiffs advanced indistinguishable arguments, and the Supreme Court
flatly rejected them, explaining that the alleged injuries were not "fairly traceable to [Section
25 See Lujan, 504 U.S. at 559-60 ("[T]he Constitution's central mechanism of separation of powers depends largely upon common understanding of what activities are appropriate to legislature, to executives, and to courts," which includes identifying cases "that are of the justiciable sort referred to in Article III"). 26 In addition to alleging that some of their communications are intercepted, plaintiffs allege a "substantial likelihood" that some of those communications must be retained, read, and disseminated by the NSA. AC ~ 71. This allegation necessarily fails. Because plaintiffs have not plausibly alleged initial NSA interception of their text-based Internet communications, it follows that they have not adequately alleged that any of their communications are retained, read, or disseminated by the NSA.
28

702]" because (i) plaintiffs "cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending" and
(ii) plaintiffs cannot establish injury "based on third parties' subjective fear of surveillance." 133 S. Ct. at 1151, 1152 n.7.27 Thus, Clapper controls here. The subjective fears of third parties and
any alleged burdensome measures taken as a result of subjective fear of surveillance are not
fairly traceable to Upstream surveillance, and therefore do not establish Article III standing.
v.
A final point, raised in Clapper, merits mention here: whether the standing requirement
as applied in Clapper bids fair to immunize Section 702 and Upstream surveillance from judicial
scrutiny. This concern is misplaced. To be sure, no government surveillance program should be
immunized from judicial scrutiny, and indeed Section 702 and Upstream surveillance have no
such immunity. As the Clapper majority noted, Section 702 surveillance is reviewed when: (i)
the FISC reviews targeting and minimization procedures of general surveillance practices to
ensure, inter alia, "the targeting and minimization procedures comport with the Fourth
Amendment," (ii) criminal defendants prosecuted on the basis of Section 702 surveillance
challenge the validity of that surveillance, and (iii) electronic communications service providers
who are directed to assist the government in surveillance challenge the directives before the
FISC. Clapper, 133 S. Ct. at 1154. Moreover, the recently enacted USA FREEDOM Act
27 The amici curiae in this case argue that standing can be established on the ground that the alleged government surveillance chills speech protected by the First Amendment. See Br. of Amici Curiae American Booksellers Association, et al., at 12-17; Br. of Amici Curiae First Amendment Scholars, at 9-19. As with plaintiffs' argument, the amici curiae's argument fails for the reasons articulated in Clapper. 133 S. Ct. at 1150-52. Both amicus briefs, which focus chiefly on the chilling argument, have been carefully reviewed and found unpersuasive. It is also worth noting that the only other nine individuals who cite their own works as frequently as do the nine authors of the First Amendment Scholars amicus brief are members of the Supreme Court, who, unlike the amici, do so out of sheer necessity.
29

provides that amicus curiae may be appointed to represent the public in certain FISC proceedings involving NSA surveillance pursuant to Section 702. Pub. L. No. 114-23, 129 Stat. 268, 279.28 These examples, of course, are not civil challenges to Section 702, and establishing standing to challenge Section 702 in a civil case is plainly difficult. But such difficulty comes with the territory. It is not a flaw of a classified program that standing to challenge that program is not easily established; it is a constitutional requirement essential to separation of powers.
VI. For the reasons stated here, defendants' motion to dismiss is granted. An appropriate Order will issue.
Alexandria, Virginia October 23, 2015
T. S. Ellis, III
n· United States trict Judge
28 It should also be remembered that the classified program at issue here is authorized by a law that was passed through the democratic process. Should society's suspicions about surveillance programs rise to a level sufficient to cause citizens to suspect Orwellian harms that outweigh the benefits to national security, surveillance programs can be revised or eliminated the same way they were authorized, namely through the legislative process. It is also possible that the jurisprudence of constitutional standing may change in the future.
30

 
 Appeal: 15-2560 Doc: 73

Filed: 05/23/2017 Pg: 1 of 46

PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 15-2560
WIKIMEDIA FOUNDATION; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE ATTORNEYS; HUMAN RIGHTS WATCH; PEN AMERICAN CENTER; GLOBAL FUND FOR WOMEN; THE NATION MAGAZINE; THE RUTHERFORD INSTITUTE; WASHINGTON OFFICE ON LATIN AMERICA; AMNESTY INTERNATIONAL USA,
Plaintiffs − Appellants,
v.
NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE; ADMIRAL MICHAEL S. ROGERS, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service; OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE; DANIEL R. COATS, in his official capacity as Director of National Intelligence; DEPARTMENT OF JUSTICE; JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States,
Defendants – Appellees.
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−
COMPUTER SCIENTISTS AND TECHNOLOGISTS; REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE EXPRESSION; AMERICAN SOCIETY OF NEWS EDITORS; ASSOCIATION OF ALTERNATIVE NEWSMEDIA; FIRST AMENDMENT COALITION; FIRST LOOK MEDIA, INC.; FREE PRESS; FREEDOM OF THE PRESS FOUNDATION; GATEHOUSE MEDIA; INTERNATIONAL DOCUMENTARY ASSOCIATION; INVESTIGATIVE REPORTERS AND EDITORS, INCORPORATED; INVESTIGATIVE REPORTING WORKSHOP AT AMERICAN UNIVERSITY; THE MEDIA CONSORTIUM; NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION; NORTH JERSEY MEDIA GROUP, INCORPORATED; ONLINE NEWS ASSOCIATION; RADIO TELEVISION DIGITAL NEWS

Appeal: 15-2560 Doc: 73

Filed: 05/23/2017 Pg: 2 of 46

ASSOCIATION; REPORTERS WITHOUT BORDERS; TULLY CENTER FOR FREE SPEECH; UNITED STATES JUSTICE FOUNDATION; FREE SPEECH DEFENSE AND EDUCATION FUND; FREE SPEECH COALITION; WESTERN JOURNALISM CENTER; GUN OWNERS OF AMERICA, INC.; GUN OWNERS FOUNDATION; DOWNSIZE DC FOUNDATION; DOWNSIZEDC.ORG; CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND; INSTITUTE ON THE CONSTITUTION; POLICY ANALYSIS CENTER; LAW PROFESSORS; ELECTRONIC FRONTIER FOUNDATION; FIRST AMENDMENT LEGAL SCHOLARS,
Amici Supporting Appellants.

Appeal from the United States District Court for the District of Maryland, at Baltimore. T. S. Ellis, III, Senior District Judge. (1:15−cv−00662−TSE)

Argued: December 8, 2016

Decided: May 23, 2017

Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Diaz wrote the opinion, in which Judge Motz joined and in which Senior Judge Davis joined in part. Senior Judge Davis wrote a separate opinion dissenting in part.

ARGUED: Patrick Christopher Toomey, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellants. Catherine H. Dorsey, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Jameel Jaffer, Alexander Abdo, Ashley Gorski, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Deborah A. Jeon, David R. Rocah, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND, Baltimore, Maryland; Charles S. Sims, David A. Munkittrick, PROSKAUER ROSE LLP, New York, New York, for Appellants. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Douglas N. Letter, H. Thomas Byron III, Michael Shih, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellees. Jennifer Stisa Granick, Director of Civil Liberties, Center for Internet and Society, STANFORD LAW SCHOOL, Stanford, California; Matthew J. Craig, SHAPIRO ARATO LLP, New York, New York, for Amicus Computer Scientists
2

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and Technologists. Margot E. Kaminski, Assistant Professor of Law, Moritz College of Law, THE OHIO STATE UNIVERSITY, Columbus, Ohio; Chelsea J. Crawford, Joshua R. Treem, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Amicus First Amendment Legal Scholars. J. Joshua Wheeler, Thomas Jefferson Center for the Protection of Free Expression and First Amendment Clinic, THE UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia; Bruce D. Brown, Gregg P. Leslie, Hannah Bloch-Wehba, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Washington, D.C.; Peter Scheer, FIRST AMENDMENT COALITION, San Rafael, California; Lynn Oberlander, General Counsel, Media Operations, FIRST LOOK MEDIA, INC., New York, New York; Matthew F. Wood, FREE PRESS, Washington, D.C.; Polly Grunfeld Sack, SVP, General Counsel and Secretary, GATEHOUSE MEDIA, LLC, Pittsford, New York; Jennifer A. Borg, General Counsel, NORTH JERSEY MEDIA GROUP, INCORPORATED, Woodland Park, New Jersey, for Amici Reporters Committee for Freedom of the Press, The Thomas Jefferson Center for the Protection of Free Expression, American Society of News Editors, Association of Alternative Newsmedia, First Amendment Coalition, First Look Media, Inc., Free Press, Freedom of the Press Foundation, Gatehouse Media, International Documentary Association, Investigative Reporters and Editors, Incorporated, Investigative Reporting Workshop at American University, The Media Consortium, National Press Photographers Association, North Jersey Media Group, Incorporated, Online News Association, Radio Television Digital News Association, Reporters Without Borders, and Tully Center for Free Speech. Kevin M. Goldberg, FLETCHER, HEALD & HILDRETH, PLC, Arlington, Virginia, for Amici American Society of News Editors and Association of Alternative Newsmedia. Marcia Hofmann, ZEITGEIST LAW PC, San Francisco, California, for Amicus Freedom of the Press Foundation. Mickey H. Osterreicher, Buffalo, New York, for Amicus National Press Photographers Association. Laura R. Handman, Alison Schary, Washington, D.C., Thomas R. Burke, DAVIS WRIGHT TREMAINE LLP, San Francisco, California, for Amicus Online News Association. Kathleen A. Kirby, WILEY REIN LLP, Washington, D.C., for Amicus Radio Television Digital News Association. Michael Connelly, UNITED STATES JUSTICE FOUNDATION, Ramona, California, for Amicus United States Justice Foundation. Robert J. Olson, Herbert W. Titus, William J. Olson, Jeremiah L. Morgan, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici United States Justice Foundation, Free Speech Defense and Education Fund, Free Speech Coalition, Western Journalism Center, Gun Owners of America, Inc., Gun Owners Foundation, Downsize DC Foundation, DownsizeDC.org, Conservative Legal Defense and Education Fund, Institute on the Constitution, and Policy Analysis Center. Adam Steinman, Professor of Law, UNIVERSITY OF ALABAMA SCHOOL OF LAW, Tuscaloosa, Alabama, for Amicus Law Professors. Sophia Cope, Mark Rumold, Andrew Crocker, Jaime Williams, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California, for Amicus Electronic Frontier Foundation.

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DIAZ, Circuit Judge: The Wikimedia Foundation and eight other organizations appeal the dismissal of
their complaint challenging Upstream surveillance, an electronic surveillance program operated by the National Security Agency (the “NSA”). The district court, relying on the discussion of speculative injury from Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), held that the allegations in the complaint were too speculative to establish Article III standing. We conclude that Clapper’s analysis of speculative injury does not control this case, since the central allegations here are not speculative. Accordingly, as for Wikimedia, we vacate and remand because it makes allegations sufficient to survive a facial challenge to standing. As for the other Plaintiffs, we affirm because the complaint does not contain enough well-pleaded facts entitled to the presumption of truth to establish their standing.
I. A. Before diving into the details of Plaintiffs’ complaint, we provide an overview of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1801 et seq., the statute from which the government derives its authority to conduct Upstream surveillance. Congress enacted FISA in 1978 to regulate electronic surveillance undertaken to gather foreign intelligence information. David S. Kris & J. Douglas Wilson, National Security Investigations and Prosecutions § 3:8 (2d ed.), Westlaw (database updated Aug. 2016) (hereinafter Kris & Wilson); see also 50 U.S.C. § 1801 (defining electronic
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surveillance). FISA created two specialized courts—the Foreign Intelligence Surveillance Court (the “FISC”), from which the government generally must obtain authorization before conducting electronic surveillance, and the Foreign Intelligence Surveillance Court of Review, which has jurisdiction to review the denial of a FISA application for electronic surveillance. Kris & Wilson § 5:1. As originally enacted, FISA required the government to demonstrate probable cause to believe that the target of its surveillance was “a foreign power or an agent of a foreign power,” and that the facility or place at which surveillance would be directed was “being used, or is about to be used, by a foreign power or an agent of a foreign power.” 50 U.S.C. § 1805(a)(2); see also Kris & Wilson § 7:2.
“Until 2008, FISA applied only to investigative conduct inside the United States.” Kris & Wilson § 4:2. That changed through the FISA Amendments Act of 2008, which authorized the government to acquire foreign-intelligence information by targeting for up to one year non-U.S. persons reasonably believed to be abroad. See 50 U.S.C. § 1881a. FISA Section 702, 50 U.S.C. § 1881a, sets forth the process for obtaining that authority.
Generally, the Attorney General and the Director of National Intelligence initiate the process by submitting a “certification” regarding the proposed surveillance to the FISC for approval. Id. § 1881a(g)(1)(A). That certification must attest, inter alia, that:
(1) procedures are in place “that . . . are reasonably designed” to ensure that an acquisition is “limited to targeting persons reasonably believed to be located outside” the United States; (2) minimization procedures adequately restrict the acquisition, retention, and dissemination of nonpublic information about unconsenting U.S. persons . . .; (3) guidelines have been adopted to ensure compliance with targeting limits and the Fourth
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Amendment; and (4) the procedures and guidelines . . . comport with the Fourth Amendment. Clapper, 133 S. Ct. at 1145 (quoting 50 U.S.C. § 1881a(g)(2)). The FISC reviews the certification to ensure that it contains the statutorily required elements and has targeting and minimization procedures that are both consistent with the Fourth Amendment and are “reasonably designed” to meet certain requirements. Id. In particular, the FISC must find that the targeting procedures are “reasonably designed” to: (i) ensure that acquisition “is limited to targeting persons reasonably believed to be located outside the United States,” and (ii) “prevent the intentional acquisition of” wholly domestic communications. 50 U.S.C. § 1881a(i)(2)(B). The FISC must also find that the minimization procedures are “reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.” Id. § 1801(h)(1); see id. § 1881a(i)(2)(C) (referring to § 1801(h)). Section 702 prohibits the intentional targeting of “any person known at the time of acquisition to be located in the United States,” id. § 1881a(b), but allows the government to intercept communications between a U.S. person inside the country and a foreigner abroad targeted by intelligence officials, see id. § 1881a(a)–(b); see also Kris & Wilson § 17:5. Furthermore, surveillance under Section 702 may be conducted for purposes other than counterterrorism—the statute defines “foreign intelligence information” to
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mean, among other things, information that relates to “the conduct of the foreign affairs of the United States,” 50 U.S.C. § 1801(e)(2)(B)—and the government need not identify “the specific facilities, places, premises, or property at which” it will direct surveillance, id. § 1881a(g)(4).
The absence of particularity and probable cause requirements in Section 702 surveillance allows the government to monitor the communications of thousands of individuals and groups under a single FISC Order. See Office of the Director of National Intelligence, Calendar Year 2014 Statistical Transparency Report 1–2 (2015) (stating that in 2014 the government used its authority pursuant to Section 702 to target an estimated 92,707 persons, groups, and entities under one FISC Order).1 Furthermore, the minimization procedures allow the government to retain communications—including those of U.S. persons—if the government concludes that they contain “foreign intelligence” information. See Kris & Wilson §§ 9:5, 17:5.
The government has acknowledged that it conducts two forms of surveillance under Section 702—PRISM and Upstream. See Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act 7 (2014) (hereinafter PCLOB Report).2 Only Upstream is at issue here. Though the government has disclosed some information about

1 Plaintiffs’ complaint incorporates this document. 2 Plaintiffs’ complaint incorporates this report.
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Upstream, most technical details of the surveillance process remain classified. See Jewel v. Nat’l Sec. Agency, 810 F.3d 622, 627 (9th Cir. 2015).
B. In June 2015, Plaintiffs—educational, legal, human rights, and media organizations—filed their first amended complaint wherein they ask for, among other things, a declaration that Upstream surveillance violates the First and Fourth Amendments, an order permanently enjoining the NSA from conducting Upstream surveillance, and an order directing the NSA “to purge all records of Plaintiffs’ communications in their possession obtained pursuant to Upstream surveillance.” J.A. 84. Plaintiffs make two central allegations. First, in what we refer to as the Wikimedia Allegation, Wikimedia alleges that “the sheer volume of [its] communications makes it virtually certain that the NSA has intercepted, copied, and reviewed at least some of [its] communications.”3 J.A. 46. Second, in what we refer to as the Dragnet Allegation, all nine Plaintiffs allege that in the course of conducting Upstream surveillance the NSA is “intercepting, copying, and reviewing substantially all” textbased communications entering and leaving the United States, including their own. J.A. 46. After setting forth supporting background relevant to each, we describe the Wikimedia and Dragnet Allegations.

3 Though all nine Plaintiffs made this allegation, only Wikimedia pursues it on appeal.
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1. Plaintiffs allege that “Upstream surveillance involves the NSA’s seizing and searching the [I]nternet communications of U.S. citizens and residents en masse as those communications travel across the [I]nternet ‘backbone’ in the United States.” J.A. 40. “The [I]nternet backbone is the network of high-capacity cables, switches, and routers [administered by telecommunications-service providers] that facilitates both domestic and international communication via the [I]nternet.” J.A. 40. It includes “the approximately 49 international submarine cables that carry [I]nternet communications into and out of the United States and that land at approximately 43 different points within the country.” J.A. 42. The NSA performs Upstream surveillance by first identifying a target and then identifying “selectors” for that target. Selectors are the specific means by which the target communicates, such as e-mail addresses or telephone numbers. Selectors cannot be keywords (e.g., “bomb”) or names of targeted individuals (e.g., “Bin Laden”). The NSA then “tasks” selectors for collection and sends them to telecommunications-service providers. Those providers must assist the government in intercepting communications to, from, or “about” the selectors. “About” communications are those that contain a tasked selector in their content, but are not to or from the target. “For instance, a communication between two third parties might be acquired because it contains a targeted email address in the body of the communication.” PCLOB Report at 119.

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We note an important distinction between Internet transactions and Internet communications. While Upstream surveillance “is intended to acquire Internet communications, it does so through the acquisition of Internet transactions.” PCLOB Report at 39. An example illustrates the point. When an individual sends an email on the Internet, the message is broken up into one or more “data packets” which are transmitted across the Internet backbone to their destination and, upon arrival, reassembled by the recipient’s computer to reconstruct the communication. The individual data packets generated by a single email can take “different routes [across the backbone] to their common destination.” PCLOB Report at 125. Relatedly, when two people communicate, the data packets from the target can take a different path along the backbone than the data packets to the target. “The government describes an Internet ‘transaction’ as ‘a complement of packets traversing the Internet that together may be understood by a device on the Internet and, where applicable, rendered in an intelligible form to the user of that device.’” Redacted, 2011 WL 10945618, at *9 n.23 (FISA Ct. Oct. 3, 2011) (quoting a government submission to the FISC).4 An Internet transaction can comprise one or many discrete communications.
“To identify and acquire Internet transactions associated with the Section 702tasked selectors on the Internet backbone, Internet transactions are first filtered to eliminate potential domestic transactions, and then are screened to capture only transactions containing a tasked selector. Unless transactions pass both these screens,
4 Plaintiffs’ complaint incorporates this FISC opinion.
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they are not ingested into government databases.” PCLOB Report at 37. “If a single discrete communication within [a multi-communication transaction] is to, from, or about a Section 702-tasked selector, and at least one end of the transaction is foreign, the NSA will acquire the entire [multi-communication transaction].” PCLOB Report at 39. Once acquired, communications are subject to FISC-approved minimization procedures. The NSA’s minimization procedures, for example, limit the types of queries that analysts can conduct across data sets of Section 702-acquired information.
Plaintiffs allege that Upstream surveillance works in practice as follows. First, the NSA copies “substantially all international text-based communications—and many domestic ones—flowing across certain high-capacity cables, switches, and routers” by “[u]sing surveillance devices installed at key access points along the [I]nternet backbone.” J.A. 43. Second, it “attempts to filter out and discard some wholly domestic communications,” though that effort “is incomplete.” J.A. 43. Third, it reviews the full content of the copied communications for targeted selectors, including IP addresses. J.A. 43. Finally, it “retains [and with few restrictions analyzes] all communications that contain selectors associated with its targets, as well as those that happen to be bundled with them in transit.” J.A. 44.
2. Wikimedia asserts that the NSA is intercepting, copying, and reviewing at least some of its communications in the course of Upstream surveillance, “even if the NSA conducts Upstream surveillance on only a single [I]nternet backbone link.” J.A. 49. Wikimedia, “the operator of one of the most-visited websites in the world,” alleges that it
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“engages in more than one trillion international communications each year, with individuals who are located in virtually every country on earth.” J.A. 56. According to Wikimedia, Upstream surveillance implicates three categories of its communications: (1) communications with its community members; (2) internal “log” communications, which include users’ IP addresses and the URLs of webpages sought by users; and (3) communications between its staff and individuals around the world. J.A. 55–56.
Wikimedia further alleges that “[g]iven the relatively small number of international chokepoints,”5 the volume of its communications, and the geographical diversity of the people with whom it communicates, its “communications almost certainly traverse every international backbone link connecting the United States with the rest of the world.” J.A. 47–48. And, Wikimedia alleges, “in order for the NSA to reliably obtain communications to, from, or about its targets in the way it has described, the government must be copying and reviewing all the international text-based communications that travel across a given link.” J.A. 48.
That last allegation is so, says Wikimedia, because “as a technical matter, the government cannot know beforehand which communications will contain selectors associated with its targets, and therefore it must copy and review all international textbased communications transiting [a] circuit in order to identify those of interest.” J.A. 48. That is because data packets that constitute a communication “travel independently
5 By “chokepoint,” Wikimedia refers to the 49 international submarine cables and the “limited number” of terrestrial cables that carry Internet communications into and out of the United States. J.A. 47–48.
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of one another, intermingled with packets of other communications in the stream of data,” and “the packets of interest cannot be segregated from other, unrelated packets in advance.” J.A. 49. Thus, the NSA must “copy all such packets traversing a given backbone link, so that it can reassemble and review the transiting communications.” J.A. 49.
Tying these allegations together, Wikimedia asserts that if the NSA is monitoring a single [I]nternet backbone link, then the NSA is intercepting, copying, and reviewing at least some of Wikimedia’s communications. According to Wikimedia, “the NSA has confirmed that it conducts Upstream surveillance at more than one point along the [I]nternet backbone.” J.A. 49. In addition to the PCLOB Report’s confirmation of the program’s existence, Wikimedia points to a purported NSA slide which shows that a single telecommunications-service provider is facilitating Upstream surveillance at “seven major international chokepoints in the United States” and a purported NSA document which states that the NSA is expending significant resources to “create collection/processing capabilities at many of the chokepoints operated by U.S. providers.” J.A. 50–51.
Wikimedia has “an acute privacy interest in its communications” because its “mission and existence depend on its ability to ensure that readers and editors can explore and contribute to [its websites] privately when they choose to do so.” J.A. 59–60. It has, in response to Upstream surveillance, taken burdensome steps to protect “the privacy of its communications and the confidentiality of the information it thereby receives.” J.A.

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60–61. Among other things, Wikimedia has “self-censor[ed] communications or forgo[ne] electronic communications altogether.” J.A. 64.
Finally, the first amended complaint alleges that “even if one assumes a 0.00000001% chance . . . of the NSA copying and reviewing any particular communication, the odds of the government copying and reviewing at least one of the Plaintiffs’ communications in a one-year period would be greater than 99.9999999999%.” J.A. 46–47. This is an extension of the allegation that Wikimedia engages in more than one trillion international communications each year.
3. In the Dragnet Allegation, Plaintiffs say that “given the way the government has described Upstream surveillance, it has a strong incentive to intercept communications at as many backbone chokepoints as possible.” J.A. 49. Thus, “[i]f the government’s aim is to ‘comprehensively’ and ‘reliably’ obtain communications to, from, and about targets scattered around the world, it must conduct Upstream surveillance at many different backbone chokepoints.” J.A. 50. Plaintiffs allege that the nature of online communication, including that data packets to a target can take different routes than data packets from a target, makes this conclusion “especially true.” J.A. 50. They also incorporate into their complaint a New York Times article asserting that the NSA “is temporarily copying and then sifting through the contents of what is apparently most e-mails and other text-based communications that cross the border.” J.A. 51.

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Furthermore, Plaintiffs often communicate with individuals whom the NSA is likely to target through Upstream surveillance, and “[a] significant amount of the information that [they] exchange over the [I]nternet is ‘foreign intelligence information.’” J.A. 52. “Because of ongoing government surveillance, including Upstream surveillance, Plaintiffs have had to take burdensome and sometimes costly measures to” protect “the confidentiality of their sensitive information.” J.A. 52. Upstream surveillance compels them to censor their own communications and, in some instances, to forgo electronic communications altogether.
Finally, Joshua Dratel, a member of Plaintiff National Association of Criminal Defense Lawyers, also challenges Upstream surveillance. One of Dratel’s clients “has received notice of [Section 702 surveillance], and [Dratel] previously represented a client in another case where officials have told Congress that the government used [Section 702 surveillance] in the course of its investigation.” J.A. 68–69.
C. The government moved to dismiss for lack of standing and submitted evidence, including declarations by Robert Lee and Alan Salzberg. The Lee Declaration challenges Plaintiffs’ assertion that, as a technical matter, the NSA must be copying all data packets that traverse a given backbone link. The Salzberg Declaration attacks Plaintiffs’ probability calculation that there’s a greater than 99.9999999999% chance that the NSA is copying and reviewing their communications. The district court, relying on Clapper, held that Plaintiffs had failed to establish standing because their allegations “depend on suppositions and speculation, with no basis
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in fact, about how the NSA implements Upstream surveillance.” J.A. 190. The court characterized the government’s motion as a facial challenge, and thus did not consider either declaration. Because so much of the district court’s opinion depends on Clapper, we summarize that case first.
1. In Clapper, plaintiffs (including six of the nine Plaintiffs here, but not including Dratel or Wikimedia) lodged a facial challenge to Section 702 on the day that the law went into effect, seeking declaratory and injunctive relief. 133 S. Ct. at 1145–46. They alleged that their work required them to “engage in sensitive and sometimes privileged telephone and e-mail communications with . . . individuals located abroad” who were “likely targets of surveillance under” Section 702. Id. at 1145. Plaintiffs had two separate theories of Article III standing: (1) there was an “objectively reasonable likelihood” that their communications would be intercepted in the future pursuant to Section 702 surveillance, and (2) they were forced to undertake costly and burdensome measures to avoid a substantial risk of surveillance. Id. at 1146. They did not, however, have “actual knowledge of the Government’s [Section 702] targeting practices.” Id. at 1148. The Supreme Court held that neither injury established standing at the summary judgment stage. The theory of standing based on interception of communications “relie[d] on a highly attenuated chain of possibilities, [which did] not satisfy the requirement that threatened injury must be certainly impending.” Id. at 1147–48. The Court broke the speculative chain into five parts:
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(1) the Government will decide to target the communications of non-U.S. persons with whom [plaintiffs] communicate; (2) in doing so, the Government will choose to invoke its authority under [Section 702] rather than utilizing another method of surveillance; (3) the Article III judges who serve on the [FISC] will conclude that the Government’s proposed surveillance procedures satisfy [Section 702’s] many safeguards and are consistent with the Fourth Amendment; (4) the Government will succeed in intercepting the communications of [plaintiffs’] contacts; and (5) [plaintiffs] will be parties to the particular communications that the Government intercepts.
Id. at 1148.
“[A]t the summary judgment stage,” the Court noted, plaintiffs “can no longer rest
on mere allegations [to establish standing], but must set forth by affidavit or other
evidence specific facts.” Id. at 1148–49 (alteration and internal quotation marks
omitted). The Clapper plaintiffs, however, had no “specific facts demonstrating that the
communications of their foreign contacts w[ould] be targeted.” Id. at 1149.
The assertion of harm based on measures taken to avoid surveillance also didn’t
suffice. Because “the harm [plaintiffs] s[ought] to avoid [wa]s not certainly impending,”
the Court explained, they couldn’t “manufacture standing merely by inflicting harm on
themselves based on their fears of hypothetical future harm.” Id. at 1151. In other
words, plaintiffs had failed to show that “[a]ny ongoing injuries” they were suffering
were “fairly traceable” to Section 702 surveillance. Id. The Court suggested, however,
that a lawyer who represented a target of Section 702 surveillance might have standing.
Id. at 1154.

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2. Applying these principles, the district court in this case reasoned that while more is known about the nature and capabilities of NSA surveillance than was known at the time of Clapper, . . . no more is known about whether Upstream surveillance actually intercepts all or substantially all international text-based Internet communications, including plaintiffs’ communications. . . . Indeed, plaintiffs’ reliance on the government’s capacity and motivation to collect substantially all international text-based Internet communications is precisely the sort of speculative reasoning foreclosed by Clapper. J.A. 192. The court supported that conclusion with two observations relevant here: (1) it is unclear whether the NSA is “using [its] surveillance equipment to its full potential” to intercept “all communications passing through” chokepoints upon which the NSA has installed surveillance equipment, and (2) “the fact that all NSA surveillance practices must survive FISC review . . . suggests that the NSA is not using its surveillance equipment to its full potential.” J.A. 190–91. The district court also rejected the argument that Clapper “does not control here because plaintiffs are different from the Clapper plaintiffs.” J.A. 194. The court focused on Dratel and Wikimedia. With respect to Dratel, the court concluded that the allegations failed to “plausibly establish that the information gathered from the two instances of Section 702 surveillance was the product of Upstream surveillance,” and that it “appears substantially more likely that PRISM collection was used in [those] cases.” J.A. 195. As for Wikimedia, the court found that “the statistical analysis on which the argument rests [(i.e., the probability calculation that there’s a greater than 99.9999999999% chance that the NSA is copying and reviewing Wikimedia’s
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communications)] is incomplete and riddled with assumptions,” and that “[l]ogically antecedent to plaintiffs’ flawed statistical analysis are plaintiffs’ speculative claims about Upstream surveillance based on limited knowledge of Upstream surveillance’s technical features and ‘strategic imperatives.’”6 See J.A. 197–99.
From the district court’s dismissal of their complaint for lack of standing, Plaintiffs appeal.
II. We review the district court’s decision de novo, Columbia Gas Transmission Corp. v. Drain, 237 F.3d 366, 369 (4th Cir. 2001), and proceed as follows. First, we lay out the framework for deciding whether a plaintiff has established standing at the motionto-dismiss stage. Then, we review the Wikimedia and Dragnet Allegations to see whether either establishes standing. We conclude that the Wikimedia Allegation does and the Dragnet Allegation does not.
A. 1. Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. “The doctrine of standing gives meaning to these constitutional limits by ‘identify[ing] those disputes which are appropriately
6 The “speculative claims” that the court referred to all relate to Wikimedia’s allegation that the NSA is “using Upstream surveillance to copy all or substantially all communications passing through” chokepoints which the NSA surveils. J.A. 199.
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resolved through the judicial process.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (alteration in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). To establish standing, a plaintiff must show: (1) an injury in fact; (2) a sufficient causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be redressed by a favorable decision. Id.
“To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560). “For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Id. (internal quotation marks omitted). “The fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance.” Id. at 1548 n.7. The purpose of the imminence requirement “is to ensure that the alleged injury is not too speculative for Article III purposes.” Clapper, 133 S. Ct. at 1147. The “threatened injury must be certainly impending to constitute injury in fact, and . . . [a]llegations of possible future injury are not sufficient.” Id. (second alteration in original) (internal quotation marks omitted).
“[E]ach element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. “A defendant may challenge [standing at the motion-to-dismiss stage] in one of two ways: facially or factually.” Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017). In a
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facial challenge, the defendant contends that the complaint “fails to allege facts upon which [standing] can be based,” and the plaintiff “is afforded the same procedural protection” that exists on a motion to dismiss. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). In a factual challenge, the defendant contends “that the jurisdictional allegations of the complaint [are] not true.” Id. In that event, a trial court may look beyond the complaint “and in an evidentiary hearing determine if there are facts to support the jurisdictional allegations.” Id.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We accept as true all well-pleaded facts in a complaint and construe them in the light most favorable to the plaintiff. SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015). Indeed, a court cannot “favor[] its perception of the relevant events over the narrative offered by the complaint,” thereby “recasting ‘plausibility’ into ‘probability.’” Id. at 430. However, legal conclusions pleaded as factual allegations, “unwarranted inferences,” “unreasonable conclusions,” and “naked assertions devoid of further factual enhancement” are not entitled to the presumption of truth. Id. at 422.
2. The Third Circuit recently applied many of these principles in Schuchardt v. President of the United States, where it held that, “at least as a facial matter,” a complaint challenging PRISM surveillance—the other form of publicly acknowledged Section 702
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surveillance—“plausibly stated an injury in fact” sufficient to establish standing. 839 F.3d 336, 338 (3d Cir. 2016). Under PRISM surveillance, the government purportedly obtains “user communications exchanged using services provided by several large U.S. companies” directly from those companies’ servers. Id. at 340.
Schuchardt’s central allegation was that the NSA is “intercepting, monitoring and storing the content of all or substantially all of the e-mail sent by American citizens, [and thus] his own online communications had been seized in the dragnet.” Id. at 341 (emphasis omitted). In support of that allegation, Schuchardt stated that he used online services targeted by PRISM surveillance and incorporated into his complaint “excerpts of the classified materials” made public through newspaper articles and filings in other cases. Id. at 341. The complaint and its exhibits described the “technical means through which PRISM purportedly achieves a nationwide email dragnet” and were “replete with details confirming PRISM’s operational scope and capabilities.” Id. at 350.
For example, a slide from a purported NSA presentation “identif[ied] company names and the dates they began cooperating with” the NSA, while another exhibit “indicate[d] . . . that the degree of access those providers granted enables the Government to query their facilities at will for ‘real-time interception of an individual’s [I]nternet activity.’” Id. at 349–50 (citations omitted). Another purported NSA slide “confirm[ed] that—consistent with a dragnet capturing ‘all or substantially all of the e–mail sent by American citizens’—the scale of the data collected by PRISM is so vast that the Government reported difficulty processing it according ‘to the norms’ to which [it has] become accustomed.” Id. at 350 (alteration in original) (citations omitted).
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The Third Circuit bifurcated its analysis. First, it found Schuchardt’s allegations sufficiently particularized to satisfy the injury-in-fact requirement. Id. at 345–46. Though PRISM surveillance is “universal in scope,” the harm that Schuchardt alleged was “unmistakably personal”—“he ha[d] a constitutional right to maintain the privacy of his personal communications, online or otherwise.” Id. Moreover, “the fact that [many others] may share a similar interest d[id] not change [the injury’s] individualized nature because Schuchardt’s allegations ma[de] clear that he [wa]s among the persons” targeted by PRISM. Id. at 346 (internal quotation marks omitted).
Second, the court credited Schuchardt’s allegations as true for the purpose of resolving the facial challenge to his complaint. Id. at 346–50. The level of detail in the complaint—sufficient to describe “the technical means through which PRISM purportedly” functions and to “confirm[] PRISM’s operational scope and capabilities”— made his allegation about “the Government’s virtual dragnet” plausible. Id. at 349–50. In doing so, the Third Circuit made clear that Schuchardt’s reliance on exhibits was not disfavored, and that “[d]espite Clapper’s observation that the standing inquiry is ‘especially rigorous’ in matters touching on ‘intelligence gathering and foreign affairs,’” it knew of no instance where a court had “imposed a heightened pleading standard for cases implicating national security,” and thus “assume[d] without deciding that” one did not apply. Id. at 348 n.8, 348–49 (quoting Clapper, 133 S. Ct. at 1147).
We find the Third Circuit’s approach persuasive and bifurcate our analyses of the Wikimedia and Dragnet Allegations in similar fashion.

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B. 1. As a reminder, the Wikimedia Allegation is that the NSA is intercepting, copying, and reviewing at least some of Wikimedia’s communications in the course of Upstream surveillance, “even if the NSA conducts Upstream surveillance on only a single [I]nternet backbone link.” J.A. 49. We conclude that this allegation satisfies the three elements of Article III standing. We begin with injury in fact. See Spokeo, 136 S. Ct. at 1548 (defining injury in fact as the invasion of a legally protected interest that is concrete and particularized and actual or imminent). The allegation that the NSA is intercepting and copying communications suffices to show an invasion of a legally protected interest—the “Fourth Amendment right to be free from unreasonable searches and seizures.” Schuchardt, 839 F.3d at 353; see also Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 801 (2d Cir. 2015) (holding at motion-to-dismiss stage that complaint challenging NSA’s bulk telephone metadata collection program established standing to assert a Fourth Amendment violation where alleged injury was “collection, and maintenance in a government database, of records relating to” plaintiffs). The injury is also concrete and particularized, despite “[t]he fact that [it is] suffered by a large number of people,” because Wikimedia says that the NSA is seizing its own communications through Upstream surveillance. See Spokeo, 136 S. Ct. at 1548 n.7; accord Schuchardt, 839 F.3d at 346. And, finishing up with the injury-in-fact element, the injury “is not too speculative for Article III purposes.” Clapper, 133 S. Ct.
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at 1147. Indeed, there’s nothing speculative about it—the interception of Wikimedia’s communications is an actual injury that has already occurred.
The Wikimedia Allegation also satisfies the other two elements of Article III standing. Upstream surveillance is the direct cause of the alleged injury, and there’s no reason to doubt that the requested injunctive and declaratory relief would redress the harm. See Lujan, 504 U.S. at 560–61 (providing that the injury must be “fairly traceable” to the conduct complained of and “likely” to be redressed by a favorable decision).
However, just because this allegation satisfies the elements of Article III standing doesn’t mean that we must accept it as true for the purpose of resolving the government’s facial challenge to the complaint. Thus, we proceed to the second part of our analysis to decide whether the Wikimedia Allegation is plausible.
Wikimedia alleges three key facts that are entitled to the presumption of truth. First, “[g]iven the relatively small number of international chokepoints,” the volume of Wikimedia’s communications, and the geographical diversity of the people with whom it communicates, Wikimedia’s “communications almost certainly traverse every international backbone link connecting the United States with the rest of the world.” J.A. 47–48.7
7 On appeal, Wikimedia attempts to rephrase this allegation so that it reads, “Wikimedia’s communications traverse every major [I]nternet circuit entering or leaving the United States.” Appellants’ Br. at 24. We look, however, to the wording of the complaint. That said, the plausibility pleading regime doesn’t automatically invalidate allegations that contain probabilistic-sounding words. For the purpose of deciding whether the Wikimedia Allegation is plausible, we find this supporting allegation, based as it is upon other factual allegations, to be well-pleaded. Indeed, Wikimedia need only (Continued)
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Second, “in order for the NSA to reliably obtain communications to, from, or about its targets in the way it has described, the government,” for technical reasons that Wikimedia goes into at length, “must be copying and reviewing all the international textbased communications that travel across a given link” upon which it has installed surveillance equipment. J.A. 48. Because details about the collection process remain classified, Wikimedia can’t precisely describe the technical means that the NSA employs. Instead, it spells out the technical rules of how the Internet works and concludes that, given that the NSA is conducting Upstream surveillance on a backbone link, the rules require that the NSA do so in a certain way.
We would never confuse the plausibility of this conclusion with that accorded to Newton’s laws of motion. But accepting the technical rules about the Internet as true, and given that Wikimedia is applying them in an appropriate context (i.e., it uses the rules to explain the technical means through which Upstream surveillance functions), we find this conclusion reasonable and entitled to the presumption of truth.
Third, per the PCLOB Report and a purported NSA slide, “the NSA has confirmed that it conducts Upstream surveillance at more than one point along the [I]nternet backbone.” J.A. 49–51. Together, these allegations are sufficient to make plausible the conclusion that the NSA is intercepting, copying, and reviewing at least some of
“state a claim to relief that is plausible on its face,” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Construing, as we must, all well-pleaded facts in the light most favorable to Wikimedia, SD3, 801 F.3d at 422, Wikimedia’s claim that its “communications almost certainly traverse” every chokepoint is enough to satisfy the plausibility requirement. J.A. 48.
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Wikimedia’s communications. To put it simply, 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.
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. See Am. Civil Liberties Union, 785 F.3d at 802 (holding that complaint established standing to assert First Amendment violation in addition to Fourth Amendment violation because “[w]hen the government collects appellants’ metadata, appellants’ members’ interests in keeping their associations and contacts private are implicated, and any potential ‘chilling effect’ is created at that point”); see also Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013) (“In First Amendment cases, the injury-in-fact element is commonly satisfied by a sufficient showing of self-censorship, which occurs when a claimant is chilled from exercising his right to free expression.”) (quotation marks and alteration omitted).
2. The government resists this conclusion, asserting that the Wikimedia Allegation “rest[s] on speculation as to the scope and scale of Upstream collection, and the means by which that collection is accomplished.” Appellees’ Br. at 23. The district court said much the same, and the best way to address this contention is by examining the ways in which that court misapplied Clapper’s discussion of speculative injury.

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Unlike in Clapper, where the plaintiffs based their theories of standing on prospective or threatened injury and actions taken in response thereto, Wikimedia pleaded an actual and ongoing injury, which renders Clapper’s certainly-impending analysis inapposite here. Compare Schuchardt, 839 F.3d at 351 (distinguishing Clapper and its discussion of a “speculative chain of possibilities” because plaintiff’s “alleged [Fourth Amendment] injury has already occurred insofar as he claims the NSA seized his emails”), with Beck, 848 F.3d at 267–69, 274–75 (applying Clapper’s certainly impending standard to a motion to dismiss an action under the Privacy Act of 1974, and finding plaintiff’s allegation that “her information ‘will eventually be misused as a result of’” a data breach that compromised her personal information too speculative to establish standing).
In other words, the Wikimedia Allegation is different in kind than the facts (or lack thereof) alleged in Clapper to establish standing at summary judgment. That brings us to our next point. By relying so heavily on Clapper, the district court blurred the line between the distinct burdens for establishing standing at the motion-to-dismiss and summary-judgment stages of litigation. Put another way, what may perhaps be speculative at summary judgment can be plausible on a motion to dismiss.
For example, the district court characterized Wikimedia’s allegations as “speculative” based upon its own observation that it’s unclear whether the NSA is “using [its] surveillance equipment to its full potential” to intercept “all communications passing through” chokepoints upon which the NSA has installed surveillance equipment. J.A. 190, 198–99. That observation might be appropriate with the benefit of an evidentiary
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record at summary judgment, but coming as it did on a motion to dismiss, it had the effect of rejecting Wikimedia’s well-pleaded allegations and impermissibly injecting an evidentiary issue into a plausibility determination. See Schuchardt, 839 F.3d at 347–48 (citing Twombly, 550 U.S. at 556); SDR, 801 F.3d at 431.
The district court made the same mistake by speculating that “the fact that all NSA surveillance practices must survive FISC review . . . suggests that the NSA is not using its surveillance equipment to its full potential.” J.A. 190–91. Wikimedia’s reliance at the motion-to-dismiss stage on publicly disclosed information about Upstream surveillance, purported NSA documents, technical rules about how the Internet works, and its understanding of its own operations is not, as the district court put it, “precisely the sort of speculative reasoning foreclosed by” Clapper’s discussion of how much factual material is necessary to satisfy the certainly-impending prong of the injury-in-fact element of Article III standing at summary judgment. J.A. 192.8
That’s not to say that all of Wikimedia’s allegations as to injury are both plausible and actual or imminent. For example, the district court was right to take issue with Wikimedia’s probability calculation, which “is incomplete and riddled with assumptions.” J.A. 197. But we need not look further into that allegation’s deficiencies, because Wikimedia doesn’t need it to establish standing.
We also reject the government’s argument that Wikimedia hasn’t pleaded enough facts to establish injury flowing from its intercepted communications. To the contrary,
8 Like the Third Circuit, we assume without deciding that a heightened pleading standard does not apply to national security cases.
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Wikimedia’s detailed allegations suffice to plausibly establish cognizable injuries under the First and Fourth Amendments. See Rakas v. Illinois, 439 U.S. 128, 140 (1978) (providing that the “definition of [Fourth Amendment] rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing”); Cooksey, 721 F.3d at 235 (“The leniency of First Amendment standing manifests itself most commonly in the doctrine’s first element: injury-in-fact.”). At this stage of the litigation, that is enough.
Finally, we decline the government’s invitation to consider its evidence, including the two declarations, which it says “supports the district court’s analysis and undermines plaintiffs’ allegations about how they surmise Upstream surveillance operates.” Appellees’ Br. at 23. The district court treated the government’s motion to dismiss as a facial challenge to the complaint and didn’t consider the government’s evidence. We will follow suit and not look beyond the complaint and documents incorporated by reference therein. See Beck, 848 F.3d at 270 (explaining the differences between facial and factual challenges to standing). The government is free to bring a factual challenge on remand, where the district court in the first instance may consider Wikimedia’s argument—should it choose to raise it again—that the intertwined nature of the jurisdictional and merits questions precludes such a challenge.9

9 We decline to decide whether Wikimedia has established third-party standing. Wikimedia may, of course, raise that argument on remand.
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*** We now turn to the Dragnet Allegation, which is that the NSA is “intercepting, copying, and reviewing substantially all” text-based communications entering and leaving the United States. J.A. 46. The district court arrived at the correct conclusion as to whether this allegation establishes standing, but only by incorrectly analogizing to Clapper. As we explain below, the reason this allegation fails to establish standing is that it does not contain enough well-pleaded facts entitled to the presumption of truth.
C. 1. The Dragnet and Wikimedia Allegations share much in common. Because each alleges the same particularized and ongoing cognizable injuries, our analysis of the injury-in-fact, traceability, and redressability elements of Article III standing with respect to the Wikimedia Allegation also applies here. But there’s a key difference in the scope of the two allegations. In the Dragnet Allegation, Plaintiffs must plausibly establish that the NSA is intercepting “substantially all” text-based communications entering and leaving the United States, whereas it’s sufficient for purposes of the Wikimedia Allegation to show that the NSA is conducting Upstream surveillance on a single backbone link. Because Plaintiffs don’t assert enough facts about Upstream’s operational scope to plausibly allege a dragnet, they have no Article III standing. In support of a dragnet and in addition to the assertions in the Wikimedia Allegation, Plaintiffs allege the following: (1) “given the way the government has described Upstream surveillance,” including that its “aim is to ‘comprehensively’ and
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‘reliably’ obtain communications to, from, and about targets scattered around the world,”
the NSA “has a strong incentive to intercept communications at as many backbone
chokepoints as possible,” and indeed “must” be doing so “at many different backbone
chokepoints,” J.A. 49–50; (2) the technical rules governing online communications make
this conclusion “especially true,” J.A. 50; and (3) a New York Times article asserts that
the NSA “is temporarily copying and then sifting through the contents of what is
apparently most e-mails and other text-based communications that cross the border,” J.A.
51.
We hold that these allegations, even when supplemented by the Wikimedia
Allegation, including that the NSA is conducting Upstream surveillance on at least seven
backbone links,10 are insufficient to make plausible the claim that the NSA is intercepting
“substantially all” text-based communications entering and leaving the United States.
To begin with, the New York Times article is effectively a recitation of the Dragnet
Allegation, and as such we ascribe little significance to it. The dissent takes issue with
our treatment of this article because—as it must—it predates the complaint. Our friend
10 Plaintiffs also reference “another NSA document [which] states that, in support of FAA [(i.e., the FISA Amendments Act of 2008)] surveillance, the ‘NSA has expended a significant amount of resources to create collection/processing capabilities at many of the chokepoints operated by U.S. providers.’” J.A. 51 (emphasis added). As Plaintiffs note, there are “at least two kinds of surveillance” under the Act—PRISM and Upstream. J.A. 40. Pointedly, and unlike in numerous other allegations throughout their complaint, including the immediately preceding one which references an “NSA slide illustrat[ing] the Upstream surveillance facilitated by just a single provider . . . at seven . . . chokepoints,” J.A. 50, Plaintiffs decline to specify which type of surveillance the NSA document refers to. Accordingly, we accept this allegation as true, but give it little weight.

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misses the point. The article makes a broad statement almost identical to the Dragnet Allegation. Under the dissent’s view, one expansive allegation is enough to make plausible another almost-identical allegation. That is not the law.
Furthermore, we accept as true Plaintiffs’ allegation about what the NSA is incentivized to do, but even so, that fact, without more, doesn’t establish a dragnet. That leaves Plaintiffs with their allegation about what the NSA “must” be doing, a contention that lacks sufficient factual support to get “across the line from conceivable to plausible.” See Twombly, 550 U.S. at 570.
A point of emphasis—we are not rejecting the allegation because it’s phrased as an absolute. Indeed, we’ve already credited as true Plaintiffs’ allegation that the NSA “must be copying and reviewing all the international text-based communications that travel across” backbone links which the NSA is surveilling. J.A. 48. We did so because Wikimedia applied the rules governing Internet communications to Upstream surveillance’s stated purpose to arrive at a reasonable conclusion about the technical means through which Upstream functions on the backbone links which the NSA surveils. One ground for that conclusion’s reasonableness is that given that the NSA is surveilling a link, the rules governing Internet communications necessarily affect, to some degree, the way it surveils that link.
By contrast, in the Dragnet allegation, Plaintiffs seek to use the theory governing Internet communications in conjunction with Upstream surveillance’s stated purpose to arrive at an allegation about what the program’s operational scope must be. But neither theory nor purpose says anything about what the NSA is doing from an operational
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standpoint. While both are relevant factors, without more they can’t establish a dragnet. In that sense, the facts alleged here are far different than those in Schuchardt, where the plaintiff plausibly pleaded a dragnet under PRISM surveillance by describing “the technical means through which PRISM” functions and by “confirming PRISM’s operational scope and capabilities” through exhibits “replete with details.” 839 F.3d at 349–50. Those exhibits included purported NSA slides which listed “company names and the dates they began cooperating with the” NSA and “confirm[ed] that . . . the scale of the data collected by PRISM is so vast that the Government [had] difficulty processing it according ‘to the norms to which [it had] become accustomed.’” Id. at 350.
The last hope for the Dragnet Allegation, then, is to supplement the “must” allegation with facts detailing Upstream’s operational scope. But even accepting the allegation that one telecommunications-service provider is facilitating Upstream surveillance at 7 of the approximately 49 chokepoints, we still don’t think that Plaintiffs have plausibly alleged a dragnet. The allegations here fall short of the level of detail in Schuchardt, and were we to accept Plaintiffs’ approach to standing, we would sanction the extrapolation of the plausible from the conceivable.
Our recent decision in SD3 is not to the contrary. There, we considered the plausibility of a complaint alleging an antitrust conspiracy in violation of the Sherman Antitrust Act. 801 F.3d at 423. We explained that for such a “claim to survive . . . a plaintiff must plead parallel conduct and something ‘more.’” Id. at 424 (quoting Twombly, 550 U.S. at 557)). “That more,” we said, “must consist of further circumstances pointing toward a meeting of the minds.” Id. (alteration and internal
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quotation marks omitted). The plaintiff in SD3 was able to establish that “more” by alleging the who, what, when, where, and why of a group boycott. Id. at 429–31.
Plaintiffs use our treatment of the “why” element in SD3 to attach special significance to their allegation that the NSA has a strong incentive to establish a dragnet. But context is key. We observed in SD3 that “motivation for common action is a key circumstantial fact.” Id. at 431 (emphasis added) (alteration and internal quotation marks omitted). It should come as no surprise that motive is an important factor when establishing an antitrust conspiracy. SD3 does not, however, stand for the broad proposition that motivation is always of special significance in plausibly pleading an injury.
Relatedly, the level of detail in the SD3 complaint is of a different magnitude than the one here, and further supports our conclusion about the implausibility of the Dragnet Allegation. For example, the SD3 plaintiff “identifie[d] the particular time, place, and manner in which the boycott initially formed” and gave “the means by which the defendants sealed their boycott agreement: a majority vote.” Id. at 430. Those are the sorts of operational details, albeit in a case concerning a different subject matter, that are by and large absent here and which we think are vital to render plausible an allegation as sweeping as the one Plaintiffs posit. See Twombly, 550 U.S. at 558 (“[A] district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed.”); Swanson v. Citibank, N.A., 614 F.3d 400, 405 (7th Cir. 2010) (“A more complex case involving financial derivatives, or tax fraud that the parties tried hard to conceal, or antitrust violations, will require more
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detail, both to give the opposing party notice of what the case is all about and to show how, in the plaintiff’s mind at least, the dots should be connected.”).
The dissent says that this analysis is flawed because the NSA’s inability to predict a communication’s path paired with its desire to “comprehensively acquire communications” renders plausible the allegation of a dragnet. The dissent thinks that’s a “logical extension” of our crediting as true Wikimedia’s allegation that the NSA reviews all communications that flow across each link that it surveils. Clearly, there are some similarities, in the sense that each allegation depends, in part, on the application of internet theory to a statement about Upstream’s purpose. But, perhaps because it fails to grapple with any of the relevant case law, the dissent misses two subtle but key distinctions.
The allegation that we credit as true uses theory to explain how the NSA is doing something, given a defined operational scope. Moreover, that theory necessarily affects the way the NSA does what we know it to be doing. Conversely, the allegation that we do not credit as true uses theory to define scope. And, there’s no direct link between that theory (the NSA doesn’t know a communication’s route) and operational scope. The dissent’s analysis has no limiting principle and, if adopted, would dilute the plausibility pleading standard to a near-nullity.
In sum, Plaintiffs lack standing to sue for a violation of the Fourth Amendment under the Dragnet Allegation because they can’t plausibly show that the NSA is intercepting their communications via a dragnet. From there, it follows that they also lack standing to sue for a violation of the First Amendment because “[a]llegations of a
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subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Clapper, 133 S. Ct. at 1152 (alteration in original) (quoting Laird v. Tatum, 408 U.S. 1, 13–14 (1972)). Nor can Plaintiffs establish standing on the ground that Upstream surveillance compels them to take burdensome and costly measures. The Dragnet Allegation’s implausibility leaves them with nothing more than “fears of hypothetical future harm,” and they “cannot manufacture standing merely by inflicting harm on themselves based on” those fears. Id. at 1151.11
2. Before concluding, we briefly address the dissent’s contention that our analysis of the non-Wikimedia Plaintiffs’ standing is superfluous. Article III of the Constitution requires that we determine whether the nonWikimedia Plaintiffs have standing because the complaint rests upon the premise that the NSA is seizing each Plaintiff’s unique communications. As such, it includes the following request for individualized relief: “Order Defendants to purge all records of Plaintiffs’ communications in their possession obtained pursuant to Upstream surveillance.” J.A. 84. Thus, the Constitution requires that each Plaintiff be able to plausibly allege the Fourth Amendment injury in fact that the NSA has seized its communications, because if a Plaintiff cannot do so it doesn’t have standing to, among
11 We reach the same conclusion as to Joshua Dratel, who is a member of the National Association of Criminal Defense Lawyers. He too cannot show that his communications are being intercepted via a dragnet, and the district court correctly held that the claim that one of his clients “has received notice of [Section 702 surveillance]” didn’t plausibly allege that the NSA targeted his client with Upstream surveillance. J.A. 68.
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other things, seek an order requiring the NSA to purge its records. To hold otherwise would be to sanction a shortcut around “the irreducible constitutional minimum of standing.” Lujan, 504 U.S. at 560.
Horne v. Flores, 557 U.S. 433 (2009), and Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), are not to the contrary. Each case is quite different from ours, rendering inapplicable the standing-avoidance doctrine which the dissent reads them to embody.12 Critically, in those cases each party for whom standing was at issue requested identical relief. Horne, 557 U.S. at 443; Village of Arlington Heights, 429 U.S. at 258. Thus, once the Court decided that a single party had standing, it made no difference to the resolution of either case whether any other party had standing. See Horne, 557 U.S. at 446 & n.2 (concluding that school superintendent had standing to seek vacatur of a district court’s orders in their entirety and declining to consider whether state legislators also had standing to pursue identical relief); Village of Arlington Heights, 429 U.S. at 264 & n.9 (concluding that one individual plaintiff had standing to pursue declaratory and injunctive relief and declining to consider whether other individuals had standing to pursue identical relief); see also, e.g., Sec’y of the Interior v. California, 464 U.S. 312, 319 n.3 (1984) (“Since the State of
12 As for the dissent’s invocation of then-Judge Roberts’s notable quotable that “if it is not necessary to decide more, it is necessary not to decide more,” context is key— that remark in a concurrence had nothing to do with standing, but rather pertained to the judge’s disagreement with the majority’s application of the Chevron doctrine. See PDK Labs. Inc. v. Drug Enf’t Admin., 362 F.3d 786, 799, 803–04 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment). We don’t disagree with the general sentiment. It’s just not relevant here.
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California clearly does have standing, we need not address the standing of the other respondents, whose position here is identical to the State’s.”).
Here, the Plaintiffs freely admit that they are not identical to one another. Instead, they fall into two different camps when it comes to demonstrating whether the NSA is seizing their communications. Moreover, the district court made an affirmative finding that none of the Plaintiffs had standing. Under these circumstances, we find it wholly appropriate (indeed necessary) to address fully this threshold question.
III. For the reasons given, we vacate that portion of the district court’s judgment dismissing the complaint as to Wikimedia and remand for proceedings consistent with this opinion. We otherwise affirm the judgment.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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DAVIS, Senior Circuit Judge, concurring in part and dissenting in part: I agree with the holding that Wikimedia has standing to challenge the NSA’s
surveillance of its internet communications. However, because I would find that the non-Wikimedia Plaintiffs also have standing, I respectfully dissent in part.
I. In order to explain my disagreement with the majority, I briefly recount the relevant allegations in this case, taken as true, of course, at this stage of the proceedings. Plaintiffs make essentially two sets of factual allegations: the first explaining how international internet communications function and the second describing how the NSA surveils international internet communications as they enter and exit the United States. First, Plaintiffs allege that internet communications are governed by certain technical rules as they travel from sender to recipient. The majority of international internet communications that move through the United States are transmitted through forty-nine submarine cables and a limited number of terrestrial cables. These cables (combined with the cables and networks that transmit domestic internet communications) are known as the internet backbone, and the different physical entry and exit points into the United States are known as backbone links. The junctions where these cables meet are chokepoints through which nearly all international internet traffic passes. Internet communications do not flow along the backbone as discrete and intact entities but instead are broken into smaller packets of information. The packets that make up a single internet communication travel to their common destination independently from one another — in the process becoming intermingled with packets from unrelated
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communications — and are reassembled only once they reach their destination. Each packet reaches its destination following a different and wholly unpredictable path, which is determined by rapidly changing factors such as network conditions. Because packets travel along independent and dynamic paths, communications sent between two individuals in “real-time” can traverse different backbone links “even though the end points are the same.” J.A. 50. Similarly, a single individual’s communications sent at different times can traverse different backbone links.
Second, based on the government’s disclosures and media reports, Plaintiffs allege that the NSA is surveilling internet communications as they travel along the internet backbone, a practice known as Upstream surveillance. The NSA accomplishes this by installing surveillance devices at backbone links, which allow the agency to copy the internet communications traversing these links. The NSA searches the copied communications for selectors. Selectors are “specific communications facilit[ies]” (e.g. email address, telephone numbers, and IP addresses) associated with the NSA’s foreign surveillance targets. PCLOB Report 32. The NSA retains communications sent to or from a selector as well as communications containing a selector in their content, which are known as “about communications.” About communications are not necessarily sent to or from a foreign surveillance target. According to the government’s disclosures, surveillance of about communications is necessary because the NSA seeks to “comprehensively acquire communications that are sent to or from its targets.” Id. at 10. With respect to the scope of Upstream surveillance, the New York Times reported that, through the use of this form of surveillance, the NSA is copying “what is apparently most
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e-mails and other text-based communications that cross the border.” J.A. 51. Plaintiffs
also quote an NSA document that states the “NSA has expended a significant amount of
resources to create collection/processing capabilities at many of the chokepoints operated
by U.S. providers through which international communications enter and leave the
United States.” Id.
II.
I agree with the majority’s analysis concluding that Clapper v. Amnesty
International USA, 133 S. Ct. 1138 (2013), does not control this case and that —
accepted as true, as they must be — Plaintiffs’ allegations satisfy the three elements of
standing. The majority also correctly finds that the factual allegations necessary to
establish Wikimedia’s standing are plausible. However, the majority errs, both by
reaching out to decide the issue of the non-Wikimedia Plaintiffs’ standing1 and, as well,
1 See Horne v. Flores, 557 U.S. 433, 446 (2009) (“Because the Superintendent clearly has standing to challenge the lower courts’ decisions, we need not consider whether the legislators also have standing to do so.”); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 and n.9 (1977) (holding because “one individual plaintiff . . . has demonstrated standing,” the Court “need not consider whether the other individual and corporate plaintiffs have standing to maintain the suit”). The majority’s “same relief” gloss on Horne and Arlington Heights completely reads out of Justice Alito’s opinion in Horne the following sentence: “[I]n all standing inquiries, the critical question is whether at least one petitioner has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.” Horne, 557 U.S. at 445 (citations and internal quotation marks omitted). In any event, this case actually fits within the majority’s “same relief” paradigm because all plaintiffs seek declaratory and injunctive relief intended to shut down the government’s Upstream surveillance program. The mere fact that a “purging order” of the sort contemplated by the majority would operate only to “purge” seized communications of a particular plaintiff is a thin reed indeed on which to base the majority’s unnecessary door-closing result. (Continued)
42

Appeal: 15-2560 Doc: 73

Filed: 05/23/2017 Pg: 43 of 46

in the answer it gives to the question it need not even reach in holding that the nonWikimedia Plaintiffs’ lack standing because the pertinent allegations are not plausible.
In order to find that Wikimedia has standing in this action, the majority credits as true three factual allegations. First, because Wikimedia sends and receives so many international internet communications, its communications travel across every internet backbone link. Second, based on the government’s disclosures, the NSA is surveilling at least one backbone link. Third, the NSA intercepts and copies every packet that passes through the backbone link(s) being surveilled (what the majority calls the Wikimedia Allegation). The third allegation is not based on Plaintiffs’ knowledge of the NSA’s surveillance techniques. Instead, the majority finds this factual allegation is plausible

It is not clear to me why the majority elects to ignore the Chief Justice’s sage admonition: “[I]f it is not necessary to decide more, it is necessary not to decide more.” PDK Labs., Inc. v. Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment). The majority’s assertion to the contrary notwithstanding, I think I know dicta when I see it, and here I see dicta. If, in fact, the Wikimedia Plaintiffs go on to prove their claims in this case, i.e., establish a violation of the Fourth Amendment as to themselves, it is beyond my capacity to conjure a rational basis on which the non-Wikimedia Plaintiffs would not be entitled to similar relief from seizures effected pursuant to the Upstream program and of course, the dismissal here of the non-Wikimedia Plaintiffs will be without prejudice. S. Walk at Broadlands Homeowner's Ass’n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
In sum, the day cannot be far off when defendants in a broad array of multiplaintiff cases will point to the majority’s holding in this case as authority requiring already short-handed and overworked federal district judges to separately assess the standing of each and every plaintiff in complex, impact litigation. Needless to say, we should avoid imposing such a requirement in the absence of the absolute necessity that we do so.

43

Appeal: 15-2560 Doc: 73

Filed: 05/23/2017 Pg: 44 of 46

because it is based on Upstream surveillance’s stated purpose and the technical rules that govern internet communications. The logical chain is as follows: The NSA has acknowledged that it uses Upstream surveillance to target “about communications,” which contain a selector in the content of the communication. Before it can search the contents of an internet communication that has been broken up into discrete packets while in transit, the NSA must copy and reassemble all of the packets that make up the communication. However, packets from targeted communications cannot be segregated from the packets of unrelated communications. Thus, in order to “reliably” intercept targeted communications, the NSA must copy all of the packets that flow across a backbone link so that the government can be assured that it has captured all of the packets that make up the targeted communication (and in the process capturing unrelated packets). J.A. 48–49.
Conversely, under the majority’s “crabbed plausibility analysis,” see Woods v. City of Greensboro, --- F.3d ---, ---, 2017 WL 1754898, *2 (4th Cir. 2017), the nonWikimedia Plaintiffs are denied standing because, in the majority’s view, those Plaintiffs rely on an implausible guess regarding Upstream surveillance’s operational scope. For the non-Wikimedia Plaintiffs to have standing, according to the majority, Plaintiffs must plausibly allege an additional fact beyond those discussed with respect to Wikimedia: the NSA is surveilling most backbone links (what the majority calls the Dragnet Allegation). Just as with the Wikimedia Allegation, Plaintiffs base this factual allegation on Upstream

44

Appeal: 15-2560 Doc: 73

Filed: 05/23/2017 Pg: 45 of 46

surveillance’s stated purpose and the technical rules governing internet communications.2 However, the majority finds this allegation implausible because it believes that “neither theory nor purpose says anything about what the NSA is doing from an operational standpoint.” Op. at 33. This misapprehends the full scope of Plaintiffs’ allegations.
Plaintiffs have plausibly alleged that the NSA surveils most backbone links because — based on the technical rules governing internet communications — the agency cannot know which link the communications it targets will traverse when they enter or leave the United States. The path that packets take along the internet backbone is determined dynamically based on unpredictable conditions. Thus, a communication sent by a surveillance target can enter the United States through one backbone link, but an immediate response returned to the surveillance target can traverse a different backbone link. Similarly, communications sent by a surveillance target at different times or locations can traverse different backbone links. Given this technical limitation, the government’s disclosure that the NSA seeks to “comprehensively acquire communications that are sent to or from its targets,” J.A. 49, renders Plaintiffs’ allegation plausible. If the NSA cannot know which backbone link its targets’ internet

2 Plaintiffs provide additional support for this allegation by corroborating it with a N.Y. Times report, which stated that the NSA is surveilling “most e-mails and other textbased communications that cross the border.” J.A. 51. The majority finds that this report is entitled to “little significance” because it “is effectively a recitation of” Plaintiffs’ allegation. Op. at 32. The N.Y. Times report predates the complaint, however; thus, the allegation is a “recitation” of the factual news report, not the other way around. Moreover, the fact that Plaintiffs based their allegation on factual news reporting rather than their own conjecture means the allegation is entitled to more weight not less.
45

Appeal: 15-2560 Doc: 73

Filed: 05/23/2017 Pg: 46 of 46

communications will traverse, then the only way it can comprehensively acquire its targets’ communications is by surveilling virtually every backbone link.
This allegation is essentially a logical extension of Plaintiffs’ earlier allegation that the NSA must copy every communication that flows across a backbone link it surveils. Just as it is plausible that the government must copy all of the packets that flow through a backbone link in order to “reliably” capture the packets that make up a targeted internet communication, because the government does not know across which backbone link a communication will travel, it is also plausible that the government must monitor virtually every link in order to “comprehensively” capture its targets’ communications. Given that we review here a motion to dismiss and not a motion for summary judgment, the non-Wikimedia Plaintiffs have provided enough factual support to their allegation to survive dismissal.
III. For the reasons set forth, while I discern no need whatsoever to review the district court’s legal determination of the non-Wikimedia Plaintiffs’ standing, I respectfully dissent from the majority opinion’s unnecessary resolution of that issue.

46

 
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Case 1:15-cv-00662-TSE Document 151 Filed 08/20/18 Page 1 of 1

 
 Case 1:15-cv-00662-TSE Document 161 Filed 11/13/18 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

_______________________________________

)

WIKIMEDIA FOUNDATION,

)

)

Plaintiff,

)

)

Civil Action No.

v.

)

1:15-cv-00662-TSE

)

NATIONAL SECURITY AGENCY, et al., )

)

Defendants.

)

_______________________________________)

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Defendants National Security Agency (“NSA”); Paul M. Nakasone, Director of the NSA, in

his official capacity; Office of the Director of National Intelligence; Honorable Daniel R. Coats,

Director of National Intelligence, in his official capacity; the United States Department of Justice;

and Matthew G. Whitaker, Acting Attorney General1 (hereinafter “Defendants”) move for summary

judgment as to all of Plaintiffs’ claims against the Defendants pursuant to Rule 56 of the Federal

Rules of Civil Procedure.

The grounds for this motion are that there is no genuine issue of material fact that Plaintiff

cannot meet its burden of establishing its standing. Due to the required exclusion of evidence

subject to the Defendants’ assertions of the state secrets privilege and of the statutory privileges

established by 50 U.S.C. § 3024(i)(1) and 50 U.S.C. § 3605(a), Plaintiff lacks competent and

admissible evidence with which to establish its standing to maintain any of its claims. Indeed, the

undisputed expert evidence in the record rebuts a key fact essential to Plaintiff’s theory of standing.

Additionally, even if Plaintiff could show a genuine issue of material fact as to its standing, summary

judgment still must be granted in favor of the Defendants because properly excluded state secrets

1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Matthew G. Whitaker has been automatically substituted as a party defendant for Jefferson B. Sessions, III.

Case 1:15-cv-00662-TSE Document 161 Filed 11/13/18 Page 2 of 3
would be needed to litigate the case and any attempt to proceed would present an unacceptable risk
of disclosing that privileged information. The relevant facts, authority, and arguments supporting
the Defendants’ motion are set forth in the accompanying Brief in Support of Defendants’ Motion
for Summary Judgment.
For the reasons stated therein, Defendants’ motion should be granted, judgment awarded to
the Defendants as a matter of law, and final judgment entered for the Defendants as to all counts in
Plaintiff’s Amended Complaint.
Dated: November 13, 2018
Respectfully submitted,
JOSEPH H. HUNT Assistant Attorney General
ANTHONY J. COPPOLINO Deputy Branch Director
/s/ James J. Gilligan JAMES J. GILLIGAN Special Litigation Counsel
RODNEY PATTON Senior Trial Counsel
JULIA A. HEIMAN Senior Counsel
OLIVIA HUSSEY SCOTT Trial Attorney
U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W., Room 11200 Washington, D.C. 20005 Phone: (202) 514-3358 Fax: (202) 616-8470 Email: james.gilligan@usdoj.gov
Counsel for Defendants
2

Case 1:15-cv-00662-TSE Document 161 Filed 11/13/18 Page 3 of 3
Certificate of Service
I hereby certify that on November 13, 2018, I caused the foregoing Motion for Summary
Judgment, including the exhibits thereto, to be filed electronically with the Clerk of the Court
through the CM/ECF system. I further certify that I caused a copy of the under seal portions of
Defendants’ motion, in particular the brief in support of the motion and attached Exhibits 1-5, to be
e-mailed to Plaintiff’s counsel at the following e-mail addresses:
Deborah A. Jeon David R. Rocah American Civil Liberties Union Foundation of Maryland jeon@aclu-md.org
Patrick Toomey Ashley Gorski American Civil Liberties Union Foundation ptoomey@aclu.org agorski@aclu.org
Alex Abdo Jameel Jaffer Knight First Amendment Institute at Columbia University alex.abdo@knightcolumbia.org Jameel.Jaffer@knightcolumbia.org
Benjamin Kleine Devon Cook COOLEY LLP bkleine@cooley.com dhanleycook@cooley.com
/s/ James J. Gilligan JAMES J. GILLIGAN Special Litigation Counsel United States Department of Justice Civil Division, Federal Programs Branch
3

Case 1:15-cv-00662-TSE Document 161-1 Filed 11/13/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

_______________________________________

)

WIKIMEDIA FOUNDATION,

)

)

Plaintiff,

)

)

Civil Action No.

v.

)

1:15-cv-00662-TSE

)

NATIONAL SECURITY AGENCY, et al., )

)

Defendants.

)

_______________________________________)

[PROPOSED] ORDER

Upon consideration of the Defendants’ Motion for Summary Judgment, and the parties’

respective submissions in support thereof and in opposition thereto, the Court finds as follows:

When the Fourth Circuit heard this case, it held that Plaintiff Wikimedia Foundation had

plausibly alleged its standing based on three “key” allegations: (i) that its communications almost

certainly traverse every “international backbone link” between the United States and the rest of the

world; (ii) that the NSA is conducting Upstream surveillance at one or more of these “international

backbone link[s],” and (iii) that at any such link where the NSA conducts Upstream surveillance, as a

technical matter, it “must be” copying and reviewing all international text-based communications

transiting that link in order to “reliably” obtain communications to or from its intelligence targets.

Wikimedia Found. v. NSA, 857 F.3d 193, 210-11 (4th Cir. 2017).

Plaintiff, however, has no adduced competent and admissible evidence to support two of

these three alleged key facts: that the NSA conducts Upstream surveillance at international Internet

links traversed by Wikimedia’s communications, and that the NSA “must be” copying and reviewing

all communications traversing any such link where it conducts surveillance, including Wikimedia’s.

Indeed, the undisputed expert evidence in the record rebuts the latter assertion. Without evidence

Case 1:15-cv-00662-TSE Document 161-1 Filed 11/13/18 Page 2 of 2 to support either of these two key elements of Plaintiff’s standing theory, Defendants’ motion for summary judgment must be granted.
Additionally, separate and apart from Plaintiff’s failure to adduce any competent and admissible evidence to support its theory of standing, summary judgment must also be granted in favor of the Defendants because properly excluded state secrets would be needed to litigate the case, and any attempt to proceed would present an unacceptable risk of disclosing that privileged information.
It is therefore, ORDERED, that Defendants’ motion for summary judgment is GRANTED, and that judgment is entered in favor of Defendants. Dated: ________________
____________________________ Hon. T.S. Ellis, III United States District Judge
2

Case 1:15-cv-00662-TSE Document 161-2 Filed 11/13/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

_______________________________________

)

WIKIMEDIA FOUNDATION,

)

)

Plaintiff, )

)

v.

)

No. 1:15-cv-0662 (TSE)

)

NATIONAL SECURITY AGENCY, et al., )

)

Defendants. )

______________________________________ )

Notice of Filing of Document Under Seal

Defendants’ Brief in Support of Defendants’ Motion for Summary Judgment, which

is an attachment to Defendants’ Motion for Summary Judgment will be electronically filed

under seal within 24 hours of the filing of this Notice.

I certify that at the same time I am filing this Notice, I will serve copies of the

document identified above by e-mail on Plaintiff’s counsel pursuant to the Certificate of

Service attached to Defendants’ motion.

Dated: November 13, 2018

Respectfully submitted,

JOSEPH H. HUNT Assistant Attorney General

ANTHONY J. COPPOLINO Deputy Branch Director

/s/ James J. Gilligan_____ JAMES J. GILLIGAN Special Litigation Counsel

RODNEY PATTON Senior Trial Counsel

JULIA A. BERMAN Senior Counsel
1

Case 1:15-cv-00662-TSE Document 161-2 Filed 11/13/18 Page 2 of 2 OLIVIA HUSSEY SCOTT Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W., Room 11200 Washington, D.C. 20005 Phone: (202) 514-3358 Fax: (202) 616-8470 Email: james.gilligan@usdoj.gov Counsel for Defendants
2

Case 1:15-cv-00662-TSE Document 161-3 Filed 11/13/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

_______________________________________

)

WIKIMEDIA FOUNDATION,

)

)

Plaintiff, )

)

v.

)

No. 1:15-cv-0662 (TSE)

)

NATIONAL SECURITY AGENCY, et al., )

)

Defendants. )

______________________________________ )

Notice of Filing of Document Under Seal

Defendants’ Exhibit List, which is an attachment to Defendants’ Motion for

Summary Judgment will be electronically filed under seal within 24 hours of the filing of this

Notice.

I certify that at the same time I am filing this Notice, I will serve copies of the

document identified above by e-mail on Plaintiff’s counsel pursuant to the Certificate of

Service attached to Defendants’ motion.

Dated: November 13, 2018

Respectfully submitted,

JOSEPH H. HUNT Assistant Attorney General

ANTHONY J. COPPOLINO Deputy Branch Director

/s/ James J. Gilligan_____ JAMES J. GILLIGAN Special Litigation Counsel

RODNEY PATTON Senior Trial Counsel

JULIA A. BERMAN Senior Counsel
1

Case 1:15-cv-00662-TSE Document 161-3 Filed 11/13/18 Page 2 of 2 OLIVIA HUSSEY SCOTT Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W., Room 11200 Washington, D.C. 20005 Phone: (202) 514-3358 Fax: (202) 616-8470 Email: james.gilligan@usdoj.gov Counsel for Defendants
2

Case 1:15-cv-00662-TSE Document 161-4 Filed 11/13/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

_______________________________________

)

WIKIMEDIA FOUNDATION,

)

)

Plaintiff, )

)

v.

)

No. 1:15-cv-0662 (TSE)

)

NATIONAL SECURITY AGENCY, et al., )

)

Defendants. )

______________________________________ )

Notice of Filing of Document Under Seal

Defendants’ Exhibit 1, which is an attachment to Defendants’ Motion for Summary

Judgment will be electronically filed under seal within 24 hours of the filing of this Notice.

I certify that at the same time I am filing this Notice, I will serve copies of the

document identified above by e-mail on Plaintiff’s counsel pursuant to the Certificate of

Service attached to Defendants’ motion.

Dated: November 13, 2018

Respectfully submitted,

JOSEPH H. HUNT Assistant Attorney General

ANTHONY J. COPPOLINO Deputy Branch Director

/s/ James J. Gilligan_____ JAMES J. GILLIGAN Special Litigation Counsel

RODNEY PATTON Senior Trial Counsel

JULIA A. BERMAN Senior Counsel

OLIVIA HUSSEY SCOTT 1

Case 1:15-cv-00662-TSE Document 161-4 Filed 11/13/18 Page 2 of 2 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W., Room 11200 Washington, D.C. 20005 Phone: (202) 514-3358 Fax: (202) 616-8470 Email: james.gilligan@usdoj.gov Counsel for Defendants
2

Case 1:15-cv-00662-TSE Document 161-5 Filed 11/13/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

_______________________________________

)

WIKIMEDIA FOUNDATION,

)

)

Plaintiff, )

)

v.

)

No. 1:15-cv-0662 (TSE)

)

NATIONAL SECURITY AGENCY, et al., )

)

Defendants. )

______________________________________ )

Notice of Filing of Document Under Seal

Defendants’ Exhibit 2, which is an attachment to Defendants’ Motion for Summary

Judgment will be electronically filed under seal within 24 hours of the filing of this Notice.

I certify that at the same time I am filing this Notice, I will serve copies of the

document identified above by e-mail on Plaintiff’s counsel pursuant to the Certificate of

Service attached to Defendants’ motion.

Dated: November 13, 2018

Respectfully submitted,

JOSEPH H. HUNT Assistant Attorney General

ANTHONY J. COPPOLINO Deputy Branch Director

/s/ James J. Gilligan_____ JAMES J. GILLIGAN Special Litigation Counsel

RODNEY PATTON Senior Trial Counsel

JULIA A. BERMAN Senior Counsel

OLIVIA HUSSEY SCOTT 1

Case 1:15-cv-00662-TSE Document 161-5 Filed 11/13/18 Page 2 of 2 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W., Room 11200 Washington, D.C. 20005 Phone: (202) 514-3358 Fax: (202) 616-8470 Email: james.gilligan@usdoj.gov Counsel for Defendants
2

Case 1:15-cv-00662-TSE Document 161-6 Filed 11/13/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

_______________________________________

)

WIKIMEDIA FOUNDATION,

)

)

Plaintiff, )

)

v.

)

No. 1:15-cv-0662 (TSE)

)

NATIONAL SECURITY AGENCY, et al., )

)

Defendants. )

______________________________________ )

Notice of Filing of Document Under Seal

Defendants’ Exhibit 3, which is an attachment to Defendants’ Motion for Summary

Judgment will be electronically filed under seal within 24 hours of the filing of this Notice.

I certify that at the same time I am filing this Notice, I will serve copies of the

document identified above by e-mail on Plaintiff’s counsel pursuant to the Certificate of

Service attached to Defendants’ motion.

Dated: November 13, 2018

Respectfully submitted,

JOSEPH H. HUNT Assistant Attorney General

ANTHONY J. COPPOLINO Deputy Branch Director

/s/ James J. Gilligan_____ JAMES J. GILLIGAN Special Litigation Counsel

RODNEY PATTON Senior Trial Counsel

JULIA A. BERMAN Senior Counsel

OLIVIA HUSSEY SCOTT 1

Case 1:15-cv-00662-TSE Document 161-6 Filed 11/13/18 Page 2 of 2 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W., Room 11200 Washington, D.C. 20005 Phone: (202) 514-3358 Fax: (202) 616-8470 Email: james.gilligan@usdoj.gov Counsel for Defendants
2

Case 1:15-cv-00662-TSE Document 161-7 Filed 11/13/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

_______________________________________

)

WIKIMEDIA FOUNDATION,

)

)

Plaintiff, )

)

v.

)

No. 1:15-cv-0662 (TSE)

)

NATIONAL SECURITY AGENCY, et al., )

)

Defendants. )

______________________________________ )

Notice of Filing of Document Under Seal

Defendants’ Exhibit 4, which is an attachment to Defendants’ Motion for Summary

Judgment will be electronically filed under seal within 24 hours of the filing of this Notice.

I certify that at the same time I am filing this Notice, I will serve copies of the

document identified above by e-mail on Plaintiff’s counsel pursuant to the Certificate of

Service attached to Defendants’ motion.

Dated: November 13, 2018

Respectfully submitted,

JOSEPH H. HUNT Assistant Attorney General

ANTHONY J. COPPOLINO Deputy Branch Director

/s/ James J. Gilligan_____ JAMES J. GILLIGAN Special Litigation Counsel

RODNEY PATTON Senior Trial Counsel

JULIA A. BERMAN Senior Counsel

OLIVIA HUSSEY SCOTT 1

Case 1:15-cv-00662-TSE Document 161-7 Filed 11/13/18 Page 2 of 2 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W., Room 11200 Washington, D.C. 20005 Phone: (202) 514-3358 Fax: (202) 616-8470 Email: james.gilligan@usdoj.gov Counsel for Defendants
2

Case 1:15-cv-00662-TSE Document 161-8 Filed 11/13/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

_______________________________________

)

WIKIMEDIA FOUNDATION,

)

)

Plaintiff, )

)

v.

)

No. 1:15-cv-0662 (TSE)

)

NATIONAL SECURITY AGENCY, et al., )

)

Defendants. )

______________________________________ )

Notice of Filing of Document Under Seal

Defendants’ Exhibit 5, which is an attachment to Defendants’ Motion for Summary

Judgment will be electronically filed under seal within 24 hours of the filing of this Notice.

I certify that at the same time I am filing this Notice, I will serve copies of the

document identified above by e-mail on Plaintiff’s counsel pursuant to the Certificate of

Service attached to Defendants’ motion.

Dated: November 13, 2018

Respectfully submitted,

JOSEPH H. HUNT Assistant Attorney General

ANTHONY J. COPPOLINO Deputy Branch Director

/s/ James J. Gilligan_____ JAMES J. GILLIGAN Special Litigation Counsel

RODNEY PATTON Senior Trial Counsel

JULIA A. BERMAN Senior Counsel

OLIVIA HUSSEY SCOTT 1

Case 1:15-cv-00662-TSE Document 161-8 Filed 11/13/18 Page 2 of 2 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W., Room 11200 Washington, D.C. 20005 Phone: (202) 514-3358 Fax: (202) 616-8470 Email: james.gilligan@usdoj.gov Counsel for Defendants
2

 
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APPEAL,CLOSED
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:15−cv−00662−TSE

Wikimedia Foundation et al v. National Security Agency/Central Date Filed: 03/10/2015

Security Service et al

Date Terminated: 10/23/2015

Assigned to: Judge T. NA S. Ellis

Jury Demand: None

Case in other court: USCA, 15−02560

Nature of Suit: 440 Civil Rights: Other

US Court of Appeals for the 4th Circuit, Jurisdiction: U.S. Government Defendant

20−01191

Cause: 05:706 Judicial Review of Agency Action

Plaintiff

Wikimedia Foundation

represented by Alex Abdo Knight First Amendment Institute at Columbia University 475 Riverside Dr. Ste. 302 New York, NY 10115 6467458500 Email: alex.abdo@knightcolumbia.org PRO HAC VICE ATTORNEY TO BE NOTICED

Ashley Marie Gorski American Civil Liberties Union Foundation 125 Broad St 18th Floor New York, NY 10004 2122847305 Fax: 2125492654 Email: agorski@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Benjamin Hansel Kleine Cooley LLP 101 California St. 5th Floor San Francisco, CA 94111 4156932000 Fax: 4156932222 Email: bkleine@cooley.com PRO HAC VICE ATTORNEY TO BE NOTICED

Charles Sims Proskauer Rose LLP 11 Times Square New York, NY 10036 2129693950 Fax: 2129692900 Email: csims@proskauer.com PRO HAC VICE ATTORNEY TO BE NOTICED

David Alexander Munkittrick Proskauer Rose LLP 11 Times Square New York, NY 10036 2129693226 Fax: 2129692900 Email: dmunkittrick@proskauer.com

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 2 of 30
PRO HAC VICE ATTORNEY TO BE NOTICED
David Robert Rocah ACLU of Maryland 3600 Clipper Mill Rd, #350 Baltimore, MD 21211 14108898555 Fax: 14103667838 Email: rocah@aclu−md.org ATTORNEY TO BE NOTICED
Devon Cook Cooley LLP 101 California St. 5th Floor San Francisco, CA 94111 4156932000 Fax: 4156932222 Email: dhanleycook@cooley.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jameel Jaffer Knight First Amendment Institute at Columbia University 475 Riverside Drive Suite 302 New York, NY 10115 6467458500 Email: jameel.jaffer@knightcolumbia.org PRO HAC VICE ATTORNEY TO BE NOTICED
John Browning Proskauer Rose LLP 11 Times Square New York, NY 10036 2129693452 Fax: 2129692900 Email: jbrowning@proskauer.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Hafetz American Civil Liberties Union Foundation 125 Broad St. 18th Fl. New York, NY 10004 2122847319 Fax: 2125492517 Email: jhafetz@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Molly Smolen Cooley LLP 101 California St. 5th Floor San Francisco, CA 94111 4156932000 Fax: 4156932222 Email: msmolen@cooley.com PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Toomey

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 3 of 30

American Civil Liberties Union Foundation 125 Broad St 18th Floor New York, NY 10004 2125197816 Fax: 2125492654 Email: ptoomey@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Deborah A Jeon American Civil Liberties Union of Maryland Foundation 3600 Clipper Mill Rd Ste 350 Baltimore, MD 21211 14108898555 Fax: 14103667838 Email: jeon@aclu−md.org ATTORNEY TO BE NOTICED

Plaintiff
National Association of Criminal Defense Attorneys

represented by Alex Abdo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ashley Marie Gorski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Charles Sims (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David Alexander Munkittrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David Robert Rocah (See above for address) ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

John Browning (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jonathan Hafetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Patrick Toomey (See above for address) PRO HAC VICE

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 4 of 30

ATTORNEY TO BE NOTICED

Deborah A Jeon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Human Rights Watch

represented by Alex Abdo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ashley Marie Gorski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Charles Sims (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David Alexander Munkittrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David Robert Rocah (See above for address) ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

John Browning (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jonathan Hafetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Patrick Toomey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Deborah A Jeon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Pen American Center

represented by Alex Abdo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ashley Marie Gorski (See above for address) PRO HAC VICE

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 5 of 30

ATTORNEY TO BE NOTICED

Charles Sims (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David Alexander Munkittrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David Robert Rocah (See above for address) ATTORNEY TO BE NOTICED

Jameel Jaffer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

John Browning (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jonathan Hafetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Patrick Toomey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Deborah A Jeon (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Global Fund for Women

represented by Alex Abdo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ashley Marie Gorski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Charles Sims (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David Alexander Munkittrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

David Robert Rocah (See above for address) ATTORNEY TO BE NOTICED

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 6 of 30

Plaintiff The Nation Magazine

Jameel Jaffer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Browning (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Hafetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Toomey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Deborah A Jeon (See above for address) ATTORNEY TO BE NOTICED
represented by Alex Abdo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ashley Marie Gorski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Charles Sims (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Alexander Munkittrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Robert Rocah (See above for address) ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Browning (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Hafetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 7 of 30

Plaintiff The Rutherford Institute
Plaintiff Washington Office on Latin America

Patrick Toomey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Deborah A Jeon (See above for address) ATTORNEY TO BE NOTICED
represented by Alex Abdo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ashley Marie Gorski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Charles Sims (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Alexander Munkittrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Robert Rocah (See above for address) ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Browning (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Hafetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Toomey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Deborah A Jeon (See above for address) ATTORNEY TO BE NOTICED
represented by Alex Abdo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 8 of 30

Plaintiff Amnesty International USA

Ashley Marie Gorski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Charles Sims (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Alexander Munkittrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Robert Rocah (See above for address) ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Browning (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Hafetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Toomey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Deborah A Jeon (See above for address) ATTORNEY TO BE NOTICED
represented by Alex Abdo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ashley Marie Gorski (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Charles Sims (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David Alexander Munkittrick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 9 of 30

David Robert Rocah (See above for address) ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Browning (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Hafetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick Toomey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Deborah A Jeon (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
National Security Agency/Central Security Service

represented by James Jordan Gilligan United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W. Room 11200 Washington, DC 20005 2025143358 Fax: 2026168470 Email: james.gilligan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia Alexandra Berman United States Department of Justice Civil Division Federal Programs Branch 1100 L Street, NW Washington, DC 20005 2026168480 Fax: 2026168470 Email: julia.heiman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Olivia R. Hussey Scott USDOJ Civil Division 1100 L Street, N.W. Room 11112 Washington, DC 20005 2026168491 Fax: 2026168470 Email: Olivia.Hussey.Scott@usdoj.gov ATTORNEY TO BE NOTICED

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 10 of 30

Defendant Adm. Michael S. Rogers in his official capacity as Director of the National Security Agency and Chief of the Central Security Service
Defendant Office of the Director of National Intelligence

Rodney Patton United States Department of Justice 20 Massachusetts Ave Rm 7320 Washington, DC 20530 2023057919 Fax: 2026168470 Email: rodney.patton@usdoj.gov ATTORNEY TO BE NOTICED
Timothy A Johnson Dept. of Justice 20 Massachusetts Ave NW Washington, DC 20530 2025141359 Fax: 2026168470 Email: timothy.johnson4@usdoj.gov
represented by James Jordan Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia Alexandra Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Olivia R. Hussey Scott (See above for address) ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
Timothy A Johnson (See above for address)
represented by James Jordan Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia Alexandra Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Olivia R. Hussey Scott (See above for address) ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
Timothy A Johnson (See above for address)

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 11 of 30

Defendant
James R. Clapper in his official capacity as Director of National Intelligence

represented by James Jordan Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Alexandra Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olivia R. Hussey Scott (See above for address) ATTORNEY TO BE NOTICED

Rodney Patton (See above for address) ATTORNEY TO BE NOTICED

Timothy A Johnson (See above for address)

Defendant Department of Justice

represented by James Jordan Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Alexandra Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olivia R. Hussey Scott (See above for address) ATTORNEY TO BE NOTICED

Rodney Patton (See above for address) ATTORNEY TO BE NOTICED

Timothy A Johnson (See above for address)

Defendant
Eric H. Holder in his official capacity as Attorney General of the United States TERMINATED: 06/22/2015

represented by James Jordan Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Alexandra Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olivia R. Hussey Scott (See above for address) ATTORNEY TO BE NOTICED

Rodney Patton (See above for address) ATTORNEY TO BE NOTICED

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 12 of 30

Defendant Loretta E. Lynch in her official capacity as Attorney General of the United States
Amicus CloudFlare CloudFlare
Amicus The Tor Project, Inc. The Tor Project, Inc.
Amicus RiseUp RiseUp
Amicus First Amendment Legal Scholars

represented by James Jordan Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia Alexandra Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Olivia R. Hussey Scott (See above for address) ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) ATTORNEY TO BE NOTICED
Timothy A Johnson (See above for address)
represented by Jeffrey Landis ZwillGen PLLC 1900 M Street, NW Suite 250 Washington, DC 20036 12027065203 Fax: 12027065298 Email: jeff@zwillgen.com
Jennifer Stisa Granick Stanford Center for Internet and Society 559 Nathan Abbot Way Stanford, CA 94305 6507368675 Email: jennifer@law.stanford.edu PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jeffrey Landis (See above for address)
Jennifer Stisa Granick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jeffrey Landis (See above for address)
Jennifer Stisa Granick (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 13 of 30

Emily Lange Levenson Brown, Goldstein & Levy LLP 120 E. Baltimore St Suite 1700 Baltimore, MD 21202 4109621030 Fax: 4103850869 Email: elevenson@browngold.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua R Treem Brown Goldstein Levy LLP 120 E Baltimore St Ste 1700 Baltimore, MD 21202 14109621030 Fax: 14103850869 Email: jtreem@browngold.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margot E Kaminski Moritz College of Law, The Ohio State University 55 W 12th Ave Columbus, OH 43210 6142922092 Email: kaminski.217@osu.edu PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus The American Booksellers Association

represented by Andrew Gellis Crocker Electronic Frontier Foundation 815 Eddy St San Franscisco, CA 94109 4154369333 Fax: 4154369993 Email: andrew@eff.org PRO HAC VICE ATTORNEY TO BE NOTICED

Jan Ingham Berlage Gohn Hankey & Berlage, LLP 201 N Charles St Ste 2101 Baltimore, MD 21201 14107529300 Fax: 14107522519 Email: jberlage@ghsllp.com ATTORNEY TO BE NOTICED

Amicus American Library Association

represented by Andrew Gellis Crocker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jan Ingham Berlage (See above for address) ATTORNEY TO BE NOTICED

Amicus Association of Research Libraries

represented by

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 14 of 30

Andrew Gellis Crocker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jan Ingham Berlage (See above for address) ATTORNEY TO BE NOTICED

Amicus Freedom to Read Foundation

represented by Andrew Gellis Crocker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jan Ingham Berlage (See above for address) ATTORNEY TO BE NOTICED

Amicus
International Federation of Library Associations and Institutions

represented by Andrew Gellis Crocker (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jan Ingham Berlage (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/10/2015
03/10/2015 03/10/2015 03/10/2015 03/10/2015 03/10/2015

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against All Defendants ( Filing fee $ 400 receipt number 0416−5260730.), filed by The Nation Magazine, Human Rights Watch, The Rutherford Institute, National Association of Criminal Defense Attorneys, Washington Office on Latin America, Pen American Center, Wikimedia Foundation, Global Fund for Women, Amnesty International USA. (Attachments: # 1 Civil Cover Sheet, # 2 Summonses)(Jeon, Deborah) (Entered: 03/10/2015)
2 NOTICE by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation Summons to U.S. Attorney (Jeon, Deborah) (Entered: 03/10/2015)
3 Summons Issued 60 days as to James R. Clapper, Department of Justice, Eric H. Holder, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers, U.S. Attorney and U.S. Attorney General (bmhs, Deputy Clerk) (Entered: 03/10/2015)
4 MOTION to Appear Pro Hac Vice for Alex Abdo ( Filing fee $ 50, receipt number 0416−5262165.) by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation (Rocah, David) (Entered: 03/10/2015)
5 MOTION to Appear Pro Hac Vice for Ashley Gorski ( Filing fee $ 50, receipt number 0416−5262203.) by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation (Rocah, David) (Entered: 03/10/2015)
6 MOTION to Appear Pro Hac Vice for Jameel Jaffer ( Filing fee $ 50, receipt number 0416−5262236.) by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 15 of 30

03/10/2015 03/10/2015 03/10/2015 03/10/2015 03/10/2015 03/11/2015 03/11/2015 03/11/2015 03/11/2015 03/11/2015

Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation (Rocah, David) (Entered: 03/10/2015)
7 MOTION to Appear Pro Hac Vice for Patrick Toomey ( Filing fee $ 50, receipt number 0416−5262246.) by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation (Rocah, David) (Entered: 03/10/2015)
8 QC NOTICE: 4 Motion to Appear Pro Hac Vice, filed by Wikimedia Foundation, Pen American Center, The Nation Magazine, National Association of Criminal Defense Attorneys, Global Fund for Women, Human Rights Watch, Washington Office on Latin America, The Rutherford Institute, Amnesty International USA needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (bu, Deputy Clerk) (Entered: 03/10/2015)
9 QC NOTICE: 5 Motion to Appear Pro Hac Vice, filed by Wikimedia Foundation, Pen American Center, The Nation Magazine, National Association of Criminal Defense Attorneys, Global Fund for Women, Human Rights Watch, Washington Office on Latin America, The Rutherford Institute, Amnesty International USA needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (bu, Deputy Clerk) (Entered: 03/10/2015)
10 QC NOTICE: 6 Motion to Appear Pro Hac Vice, filed by Wikimedia Foundation, Pen American Center, The Nation Magazine, National Association of Criminal Defense Attorneys, Global Fund for Women, Human Rights Watch, Washington Office on Latin America, The Rutherford Institute, Amnesty International USA needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (bu, Deputy Clerk) (Entered: 03/10/2015)
11 QC NOTICE: 7 Motion to Appear Pro Hac Vice, filed by Wikimedia Foundation, Pen American Center, The Nation Magazine, National Association of Criminal Defense Attorneys, Global Fund for Women, Human Rights Watch, Washington Office on Latin America, The Rutherford Institute, Amnesty International USA needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (bu, Deputy Clerk) (Entered: 03/10/2015)
12 CORRECTED MOTION to Appear Pro Hac Vice for Alex Abdo by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation (Attachments: # 1 Signature page). The fee has already been paid.(Rocah, David) (Entered: 03/11/2015)
13 CORRECTED MOTION to Appear Pro Hac Vice for Ashley Gorski by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation (Attachments: # 1 Signature page). The fee has already been paid.(Rocah, David) (Entered: 03/11/2015)
14 PAPERLESS ORDER granting 12 Corrected Motion to Appear Pro Hac Vice on behalf of Alex Abdo. Directing attorney Alex Abdo to register online for CM/ECF at https://www.mdd.uscourts.gov/attyregB/inputProHac.asp. Signed by Clerk on 3/11/2015. (bu, Deputy Clerk) (Entered: 03/11/2015)
15 PAPERLESS ORDER granting 13 Corrected Motion to Appear Pro Hac Vice on behalf of Ashley Gorski. Directing attorney Ashley Gorski to register online for CM/ECF at https://www.mdd.uscourts.gov/attyregB/inputProHac.asp. Signed by Clerk on 3/11/2015. (bu, Deputy Clerk) (Entered: 03/11/2015)
16 CORRECTED MOTION to Appear Pro Hac Vice for Jameel Jaffer by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation (Attachments: # 1 Signature page). The fee has already been paid.(Rocah, David) (Entered: 03/11/2015)

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 16 of 30

03/11/2015 03/11/2015

17 CORRECTED MOTION to Appear Pro Hac Vice for Patrick Toomey by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation (Attachments: # 1 Signature page). The fee has already been paid.(Rocah, David) (Entered: 03/11/2015)
18 MOTION to Appear Pro Hac Vice for Charles Sims ( Filing fee $ 50, receipt number 0416−5265356.) by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation (Attachments: # 1 Signature page)(Rocah, David) (Entered: 03/11/2015)

03/11/2015

19 MOTION to Appear Pro Hac Vice for David Munkittrick ( Filing fee $ 50, receipt number 0416−5265372.) by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation (Attachments: # 1 Signature page)(Rocah, David) (Entered: 03/11/2015)

03/11/2015

20 MOTION to Appear Pro Hac Vice for John Browning ( Filing fee $ 50, receipt number 0416−5265384.) by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation (Attachments: # 1 Signature page)(Rocah, David) (Entered: 03/11/2015)

03/11/2015 03/11/2015 03/11/2015 03/11/2015

21 PAPERLESS ORDER granting 16 Corrected Motion to Appear Pro Hac Vice on behalf of Jameel Jaffer. Directing attorney Jameel Jaffer to register online for CM/ECF at https://www.mdd.uscourts.gov/attyregB/inputProHac.asp. Signed by Clerk on 3/11/2015. (bu, Deputy Clerk) (Entered: 03/11/2015)
22 PAPERLESS ORDER granting 17 Corrected Motion to Appear Pro Hac Vice on behalf of Patrick Toomey. Directing attorney Patrick Toomey to register online for CM/ECF at https://www.mdd.uscourts.gov/attyregB/inputProHac.asp. Signed by Clerk on 3/11/2015. (bu, Deputy Clerk) (Entered: 03/11/2015)
23 PAPERLESS ORDER granting 18 Motion to Appear Pro Hac Vice on behalf of Charles Sims. Directing attorney Charles Sims to register online for CM/ECF at https://www.mdd.uscourts.gov/attyregB/inputProHac.asp. Signed by Clerk on 3/11/2015. (bu, Deputy Clerk) (Entered: 03/11/2015)
24 PAPERLESS ORDER granting 19 Motion to Appear Pro Hac Vice on behalf of David Munkittrick. Directing attorney David Munkittrick to register online for CM/ECF at https://www.mdd.uscourts.gov/attyregB/inputProHac.asp. Signed by Clerk on 3/11/2015. (bu, Deputy Clerk) (Entered: 03/11/2015)

03/11/2015

25 PAPERLESS ORDER granting 20 Motion to Appear Pro Hac Vice on behalf of John Browning. Directing attorney John Browning to register online for CM/ECF at https://www.mdd.uscourts.gov/attyregB/inputProHac.asp. Signed by Clerk on 3/11/2015. (bu, Deputy Clerk) (Entered: 03/11/2015)

03/11/2015 26 Local Rule 103.3 Disclosure Statement by Amnesty International USA. (Rocah, David) (Entered: 03/11/2015)

03/11/2015 03/11/2015 03/11/2015
03/11/2015

27 Local Rule 103.3 Disclosure Statement by Global Fund for Women. (Rocah, David) (Entered: 03/11/2015)
28 Local Rule 103.3 Disclosure Statement by Human Rights Watch. (Rocah, David) (Entered: 03/11/2015)
29 Local Rule 103.3 Disclosure Statement by National Association of Criminal Defense Attorneys identifying Other Affiliate Foundation for Criminal Justice for National Association of Criminal Defense Attorneys.. (Rocah, David) (Entered: 03/11/2015)
30 Local Rule 103.3 Disclosure Statement by Pen American Center. (Rocah, David) (Entered: 03/11/2015)

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 17 of 30

03/11/2015 03/11/2015

31 Local Rule 103.3 Disclosure Statement by The Rutherford Institute. (Rocah, David) (Entered: 03/11/2015)
32 Local Rule 103.3 Disclosure Statement by The Nation Magazine. (Rocah, David) (Entered: 03/11/2015)

03/11/2015 33 Local Rule 103.3 Disclosure Statement by Wikimedia Foundation. (Rocah, David) (Entered: 03/11/2015)

03/11/2015 34 Local Rule 103.3 Disclosure Statement by Washington Office on Latin America. (Rocah, David) (Entered: 03/11/2015)

03/17/2015 03/17/2015 03/17/2015 03/17/2015

35 (FILED IN ERROR) AFFIDAVIT of Service for Summons served on United States Attorney for the District of Maryland on 3/10/2015, filed by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation. (Toomey, Patrick) Modified on 3/17/2015 (bmhs, Deputy Clerk). (Entered: 03/17/2015)
36 (FILED IN ERROR) AFFIDAVIT of Service for Summons served on Office of the Director of National Intelligence on 3/10/2015, filed by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation. (Toomey, Patrick) Modified on 3/17/2015 (bmhs, Deputy Clerk). (Entered: 03/17/2015)
37 (FILED IN ERROR) AFFIDAVIT of Service for Summons served on National Security Agency / Central Security Service on 3/10/2015, filed by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation. (Toomey, Patrick) Modified on 3/17/2015 (bmhs, Deputy Clerk). (Entered: 03/17/2015)
38 (FILED IN ERROR) AFFIDAVIT of Service for Summons served on Department of Justice on 3/10/2015, filed by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation. (Toomey, Patrick) Modified on 3/17/2015 (bmhs, Deputy Clerk). (Entered: 03/17/2015)

03/17/2015

39 (FILED IN ERROR) AFFIDAVIT of Service for Summons served on Adm. Michael S. Rogers on 3/10/2015, filed by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation. (Toomey, Patrick) Modified on 3/17/2015 (bmhs, Deputy Clerk). (Entered: 03/17/2015)

03/17/2015

40 (FILED IN ERROR) AFFIDAVIT of Service for Summons served on Director of National Intelligence James R. Clapper on 3/10/2015, filed by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation. (Toomey, Patrick) Modified on 3/17/2015 (bmhs, Deputy Clerk). (Entered: 03/17/2015)

03/17/2015 03/17/2015

41 (FILED IN ERROR) AFFIDAVIT of Service for Summons served on Attorney General Eric H. Holder, Jr. on 3/10/2015, filed by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation. (Toomey, Patrick) Modified on 3/17/2015 (bmhs, Deputy Clerk). (Entered: 03/17/2015)
42 QC NOTICE: 35 Affidavit of Service filed by Wikimedia Foundation, Pen American Center, The Nation Magazine, National Association of Criminal Defense Attorneys, Global Fund for Women, Human Rights Watch, Washington Office on Latin America, The Rutherford Institute, Amnesty International USA was filed incorrectly.

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03/17/2015 03/17/2015
03/17/2015 03/17/2015 03/17/2015 03/17/2015 03/17/2015 03/17/2015 03/19/2015

**Incorrect event was selected. Please refile using the event under Service of Process − Summons Returned Executed as to USA AND case caption and case number are missing. It has been noted as FILED IN ERROR, and the document link has been disabled. (bmhs, Deputy Clerk) (Entered: 03/17/2015)
43 QC NOTICE: 36 37 38 39 40 41 Affidavits of Service filed by Wikimedia Foundation, Pen American Center, The Nation Magazine, National Association of Criminal Defense Attorneys, Global Fund for Women, Human Rights Watch, Washington Office on Latin America, The Rutherford Institute, Amnesty International USA were filed incorrectly. **Case caption and case number are missing. It has been noted as FILED IN ERROR, and the document link has been disabled. (bmhs, Deputy Clerk) (Entered: 03/17/2015)
44 SUMMONS Returned Executed by The Nation Magazine, Amnesty International USA, Human Rights Watch, The Rutherford Institute, National Association of Criminal Defense Attorneys, Washington Office on Latin America, Wikimedia Foundation, Pen American Center, Global Fund for Women. James R. Clapper served on 3/10/2015, answer due 5/11/2015; Department of Justice served on 3/10/2015, answer due 5/11/2015; Eric H. Holder served on 3/10/2015, answer due 5/11/2015; National Security Agency/Central Security Service served on 3/10/2015, answer due 5/11/2015; Office of the Director of National Intelligence served on 3/10/2015, answer due 5/11/2015; Michael S. Rogers served on 3/10/2015, answer due 5/11/2015. (Toomey, Patrick) (Entered: 03/17/2015)
45 AFFIDAVIT of Service for Summons served on Office of the Director of National Intelligence on 3/10/2015, filed by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation. (Toomey, Patrick) (Entered: 03/17/2015)
46 AFFIDAVIT of Service for Summons served on National Security Agency / Central Security Service on 3/10/2015, filed by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation. (Toomey, Patrick) (Entered: 03/17/2015)
47 AFFIDAVIT of Service for Summons served on Director of National Intelligence James R. Clapper on 3/10/2015, filed by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation. (Toomey, Patrick) (Entered: 03/17/2015)
48 AFFIDAVIT of Service for Summons served on Department of Justice on 3/10/2015, filed by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation. (Toomey, Patrick) (Entered: 03/17/2015)
49 AFFIDAVIT of Service for Summons served on Adm. Michael S. Rogers on 3/10/2015, filed by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation. (Toomey, Patrick) (Entered: 03/17/2015)
50 AFFIDAVIT of Service for Summons served on Attorney General Eric H. Holder, Jr. on 3/10/2015, filed by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation. (Toomey, Patrick) (Entered: 03/17/2015)
51 NOTICE of Appearance by James Jordan Gilligan on behalf of All Defendants (Gilligan, James) (Entered: 03/19/2015)

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 19 of 30

03/23/2015 03/24/2015

52 NOTICE of Appearance by Rodney Patton on behalf of James R. Clapper, Department of Justice, Eric H. Holder, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers (Patton, Rodney) (Entered: 03/23/2015)
53 NOTICE of Appearance by Julia Alexandra Berman on behalf of All Defendants (Berman, Julia) (Entered: 03/24/2015)

03/26/2015

Case reassigned to Judge T. S. Ellis. Judge Richard D Bennett no longer assigned to the case. (cags, Deputy Clerk) (Entered: 03/26/2015)

04/24/2015

54 MOTION to Set a Status Conference by James R. Clapper, Department of Justice, Eric H. Holder, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers Responses due by 5/11/2015 (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Berman, Julia) (Entered: 04/24/2015)

04/28/2015
04/30/2015 05/06/2015 05/11/2015

55 RESPONSE to Motion re 54 MOTION to Set a Status Conference filed by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation. Replies due by 5/15/2015. (Attachments: # 1 Text of Proposed Order)(Toomey, Patrick) (Entered: 04/28/2015)
56 ORDER granting 54 Defendants' Motion to set a status conference; and scheduling a status conference for 3:30 p.m. on Wednesday, May 13, 2015. Signed by Judge T. S. Ellis on 4/30/2015. (bmhs, Deputy Clerk) (Entered: 04/30/2015)
57 Correspondence re: Request Pursuant to D. Md. Local Rule 101.1(b)(i) for May 13, 2015 Status Conference (Toomey, Patrick) (Entered: 05/06/2015)
58 ORDER granting 57 Plaintiffs' Letter Motion. Signed by Judge T. S. Ellis on 5/11/15. (bmhs, Deputy Clerk) (Entered: 05/11/2015)

05/12/2015

59 PAPERLESS ORDER, for good cause, it is hereby ORDERED that the status conference scheduled to be heard at the Greenbelt Courthouse at 3:30 p.m. on Wednesday, May 13, 2015, is CANCELED. Instead, a telephone conference is SCHEDULED for the same date and time (3:30 p.m. on Wednesday, May 13, 2015). In this regard, all participating counsel are DIRECTED first to conference themselves together on one phone line and then to call Chambers at (703) 299−2114 to commence the conference call. Signed by Judge T. S. Ellis on 5/12/2015. (bmhs, Deputy Clerk) (Entered: 05/12/2015)

05/14/2015 05/14/2015 05/27/2015
05/28/2015 05/29/2015

60 Telephone Conference held on 5/14/2015 before Judge T. S. Ellis. (bmhs, Deputy Clerk) (Entered: 05/15/2015)
61 ORDER directing parties to comply with the briefing and argument schedule. Signed by Judge T. S. Ellis on 5/13/2015. (bmhs, Deputy Clerk) (Entered: 05/15/2015)
62 MOTION to Set a Date for the Filing of Amicus Briefs by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation Responses due by 6/15/2015 (Attachments: # 1 Text of Proposed Order)(Toomey, Patrick) (Entered: 05/27/2015)
63 ORDER denying 62 Motion to Set a Date for the Filing of Amicus Briefs. Signed by Judge T. S. Ellis on 5/28/2015. (bmhs, Deputy Clerk) (Entered: 05/28/2015)
64 Joint MOTION to Conduct Hearings in Alexandria, Virginia by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation Responses due by 6/15/2015 (Attachments: # 1 Text of Proposed Order)(Toomey, Patrick) (Entered: 05/29/2015)

05/29/2015 65 ORDER granting 64 Joint Motion to Conduct Hearings in Alexandria, Virginia. Signed by Judge T. S. Ellis on 5/29/2015. (bmhs, Deputy Clerk) (Entered: 05/29/2015)

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05/29/2015 06/12/2015

66 MOTION to Dismiss for Lack of Jurisdiction Under Rule 12(b)(1) by James R. Clapper, Department of Justice, Eric H. Holder, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers Responses due by 6/15/2015 (Attachments: # 1 Memorandum of Law in Support of Motion to Dismiss, # 2 Text of Proposed Order, # 3 Exhibit Exhibit List, # 4 Exhibit Exhibit 1, # 5 Exhibit Exhibit 2, # 6 Exhibit Exhibit 3, # 7 Exhibit Exhibit 4A, # 8 Exhibit Exhibit 4B, # 9 Exhibit Exhibit 4C, # 10 Exhibit Exhibit 4D, # 11 Exhibit Exhibit 5, # 12 Exhibit Exhibit 6)(Patton, Rodney) (Entered: 05/29/2015)
67 Joint MOTION to Amend the Briefing Schedule by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation Responses due by 6/29/2015 (Attachments: # 1 Text of Proposed Order)(Toomey, Patrick) (Entered: 06/12/2015)

06/12/2015

68 ORDER granting 67 Joint Motion to Amend the Briefing Scheduling governing Defendants' Motion to Dismiss; and postponing the oral argument on Defendants' Motion to Dismiss. Signed by Judge T. S. Ellis on 6/12/2015. (bmhs, Deputy Clerk) (Entered: 06/15/2015)

06/12/2015 69 ORDER amending the briefing schedule. Signed by Judge T. S. Ellis on 6/12/2015. (bmhs, Deputy Clerk) (Entered: 06/15/2015)

06/19/2015 06/22/2015 06/22/2015
06/27/2015

70 MOTION to Amend/Correct 1 Complaint, by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation Responses due by 7/9/2015 (Attachments: # 1 First Amended Complaint, # 2 First Amended Complaint − Redline, # 3 Text of Proposed Order)(Toomey, Patrick) (Entered: 06/19/2015)
71 ORDER granting 70 Plaintiffs' Motion to Amend the Complaint; and denying as moot 66 Defendants' Motion to Dismiss. Signed by Judge T. S. Ellis on 6/22/2015. (bmhs, Deputy Clerk) (Entered: 06/22/2015)
72 AMENDED COMPLAINT against James R. Clapper, Department of Justice, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers, Loretta E. Lynch filed by The Nation Magazine, Amnesty International USA, Human Rights Watch, The Rutherford Institute, National Association of Criminal Defense Attorneys, Washington Office on Latin America, Wikimedia Foundation, Pen American Center, Global Fund for Women. (Attachments: # 1 Red Line Complaint)(bmhs, Deputy Clerk) (Entered: 06/22/2015)
73 Consent MOTION for Extension of Time by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers Responses due by 7/16/2015 (Attachments: # 1 Text of Proposed Order)(Berman, Julia) (Entered: 06/27/2015)

06/29/2015 74 ORDER granting 73 Consent Motion for Extension of Time. Signed by Judge T. S. Ellis on 6/29/2015. (bmhs, Deputy Clerk) (Entered: 06/29/2015)

07/31/2015

75 MOTION to Appear Pro Hac Vice for Jennifer Stisa Granick ( Filing fee $ 50, receipt number 0416−5525629.) by CloudFlare, The Tor Project, Inc., RiseUp (Landis, Jeffrey) (Entered: 07/31/2015)

08/03/2015 08/06/2015

76 PAPERLESS ORDER granting 75 Motion to Appear Pro Hac Vice on behalf of Jennifer Stisa Granick. Directing attorney Jennifer Stisa Granick to register online for CM/ECF at https://www.mdd.uscourts.gov/attyregB/inputProHac.asp. Signed by Clerk on 8/3/2015. (bu, Deputy Clerk) (Entered: 08/03/2015)
77 MOTION to Dismiss for Lack of Jurisdiction by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers Responses due by 8/24/2015 (Attachments: # 1 (Memorandum in Support), # 2 Affidavit (Salzberg Declaration), # 3 Affidavit (Lee Declaration Part 1), # 4 Affidavit (Lee Declaration Part 2), # 5 Affidavit (Lee Declaration Part 3), # 6 Affidavit (Lee Declaration Part 4), # 7 Affidavit (Lee Declaration Part 5), # 8 Exhibit 1, # 9 Exhibit 2, # 10 Exhibit 3, # 11 Exhibit 4, # 12 Exhibit 5, # 13 Exhibit 6, # 14 Exhibit 7, # 15 Exhibit 8, # 16 Exhibit

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 21 of 30

09/03/2015 09/03/2015 09/03/2015 09/03/2015 09/03/2015
09/03/2015 09/03/2015
09/03/2015 09/03/2015 09/09/2015 09/09/2015 09/17/2015 09/25/2015

9, # 17 (Index of Exhibits), # 18 Text of Proposed Order)(Gilligan, James) (Entered: 08/06/2015)
78 NOTICE of Appearance by Joshua R Treem on behalf of First Amendment Legal Scholars (Treem, Joshua) (Entered: 09/03/2015)
79 NOTICE of Appearance by Emily Lange Levenson on behalf of First Amendment Legal Scholars (Levenson, Emily) (Entered: 09/03/2015)
80 MOTION to Appear Pro Hac Vice ( Filing fee $ 50, receipt number 0416−5581832.) by First Amendment Legal Scholars (Treem, Joshua) (Entered: 09/03/2015)
81 NOTICE of Appearance by Jan Ingham Berlage on behalf of The American Booksellers Association, American Library Association, Association of Research Libraries, Freedom to Read Foundation, International Federation of Library Associations and Institutions (Berlage, Jan) (Entered: 09/03/2015)
82 MOTION for Leave to File to File Brief of Amici Curiae in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss by American Library Association, Association of Research Libraries, Freedom to Read Foundation, International Federation of Library Associations and Institutions, The American Booksellers Association Responses due by 9/21/2015 (Attachments: # 1 Brief in Opposition to Defendants' Motion to Dismiss)(Berlage, Jan) (Entered: 09/03/2015)
83 MOTION to Appear Pro Hac Vice for Andrew Crocker ( Filing fee $ 50, receipt number 0416−5582368.) by American Library Association, Association of Research Libraries, Freedom to Read Foundation, International Federation of Library Associations and Institutions, The American Booksellers Association (Berlage, Jan) (Entered: 09/03/2015)
84 NOTICE by American Library Association, Association of Research Libraries, Freedom to Read Foundation, International Federation of Library Associations and Institutions, The American Booksellers Association re 81 Notice of Appearance, 82 MOTION for Leave to File to File Brief of Amici Curiae in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss, 83 MOTION to Appear Pro Hac Vice for Andrew Crocker ( Filing fee $ 50, receipt number 0416−5582368.) of Service (Berlage, Jan) (Entered: 09/03/2015)
85 MOTION for Leave to File Brief of Amicus Curiae by First Amendment Legal Scholars Responses due by 9/21/2015 (Attachments: # 1 Brief of Amicus Curiae First Amendment Legal Scholars, # 2 Text of Proposed Order)(Treem, Joshua) (Entered: 09/03/2015)
86 RESPONSE in Opposition re 77 MOTION to Dismiss for Lack of Jurisdiction filed by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation. Replies due by 9/21/2015. (Toomey, Patrick) (Entered: 09/03/2015)
87 PAPERLESS ORDER granting 80 Motion to Appear Pro Hac Vice on behalf of Margot E Kaminski. Directing attorney Margot E Kaminski to register online for CM/ECF at https://www.mdd.uscourts.gov/attyregB/inputProHac.asp. Signed by Clerk on 9/9/2015. (srd, Intern) (Entered: 09/09/2015)
88 PAPERLESS ORDER granting 83 Motion to Appear Pro Hac Vice on behalf of Andrew Crocker. Directing attorney Andrew Crocker to register online for CM/ECF at https://www.mdd.uscourts.gov/attyregB/inputProHac.asp. Signed by Clerk on 9/9/2015. (srd, Intern) (Entered: 09/09/2015)
89 REPLY to Response to Motion re 77 MOTION to Dismiss for Lack of Jurisdiction filed by James R. Clapper, Department of Justice, Eric H. Holder, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers. (Attachments: # 1 Exhibit 1)(Gilligan, James) (Entered: 09/17/2015)
90 Status Conference held on 9/25/2015 before Judge T. S. Ellis. (Court Reporter: M. Pham) (bmhs, Deputy Clerk) (Entered: 09/28/2015)

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 22 of 30

09/25/2015 10/22/2015

91 ORDER taking under advisment 77 Defendant's MOTION to Dismiss for Lack of Jurisdiction. Signed by Judge T. S. Ellis on 9/25/2015. (bmhs, Deputy Clerk) (Entered: 09/28/2015)
92 MOTION to Withdraw as Attorney by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation Responses due by 11/9/2015 (Attachments: # 1 Text of Proposed Order)(Rocah, David) (Entered: 10/22/2015)

10/23/2015 93 MEMORANDUM OPINION. Signed by Judge T. S. Ellis on 10/23/2015. (bmhs, Deputy Clerk) (Entered: 10/23/2015)

10/23/2015

94 ORDER granting 82 85 amici curiae's Motions for Leave to File amicus curiae briefs. Signed by Judge T. S. Ellis on 10/23/2015. (bmhs, Deputy Clerk) (Entered: 10/23/2015)

10/23/2015 12/15/2015
12/17/2015 12/18/2015

95 ORDER granting 77 Defendants' Motion to Dismiss. Signed by Judge T. S. Ellis on 10/23/2015. (bmhs, Deputy Clerk) (Entered: 10/23/2015)
96 NOTICE OF APPEAL as to 95 Order on Motion to Dismiss/Lack of Jurisdiction by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation. Filing fee $ 505, receipt number 0416−5759619. (Toomey, Patrick) (Entered: 12/15/2015)
97 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 96 Notice of Appeal. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices. (sls, Deputy Clerk) (Entered: 12/17/2015)
98 USCA Case Number 15−2560 for 96 Notice of Appeal, filed by Wikimedia Foundation, Pen American Center, The Nation Magazine, National Association of Criminal Defense Attorneys, Global Fund for Women, Human Rights Watch, Washington Office on Latin America, The Rutherford Institute, Amnesty International USA. Case Manager − RJ Warren (ko, Deputy Clerk) (Entered: 12/18/2015)

12/29/2015

99 (ELECTRONICALLY FILED IN ERROR)TRANSCRIPT REQUEST by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation for proceedings held on September 25, 2015 before Judge T.S. Ellis, III.. (Toomey, Patrick) Modified on 12/29/2015 (slss, Deputy Clerk). (Entered: 12/29/2015)

01/04/2016

100 NOTICE OF FILING OF OFFICIAL TRANSCRIPT for dates of September 25, 2015, before Judge T.S. Ellis, III, re 96 Notice of Appeal, Court Reporter/Transcriber Michael A. Rodriquez, Telephone number 301−213−4913. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Does this satisfy all appellate orders for this reporter? − Y. Redaction Request due 1/25/2016. Redacted Transcript Deadline set for 2/4/2016. Release of Transcript Restriction set for 4/4/2016. (jbps, Deputy Clerk) (Entered: 01/04/2016)

05/23/2017 07/17/2017

101 JUDGMENT of USCA (certified copy) affirming in part and vacating in part the judgment of the district court; remanding the case to the district court for further proceedings consistent with the court's decision as to 96 Notice of Appeal, filed by Wikimedia Foundation, Pen American Center, The Nation Magazine, National Association of Criminal Defense Attorneys, Global Fund for Women, Human Rights Watch, Washington Office on Latin America, The Rutherford Institute, Amnesty International USA (kr2, Deputy Clerk) (Entered: 05/23/2017)
102 MANDATE of USCA issued as to 96 Notice of Appeal, filed by Wikimedia Foundation, Pen American Center, The Nation Magazine, National Association of Criminal Defense Attorneys, Global Fund for Women, Human Rights Watch,

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 23 of 30

07/17/2017 07/31/2017
08/02/2017 08/03/2017
08/11/2017 08/15/2017
08/26/2017
08/28/2017
09/01/2017 09/06/2017 09/13/2017 09/22/2017 09/27/2017 09/28/2017 10/03/2017 10/16/2017

Washington Office on Latin America, The Rutherford Institute, Amnesty International USA (ko, Deputy Clerk) (Entered: 07/17/2017)
103 MOTION for a Status Conference by Wikimedia Foundation (Attachments: # 1 Text of Proposed Order)(Toomey, Patrick) (Entered: 07/17/2017)
104 RESPONSE to Motion re 103 MOTION for a Status Conference filed by National Security Agency/Central Security Service, Office of the Director of National Intelligence. (Attachments: # 1 Text of Proposed Order)(Berman, Julia) (Entered: 07/31/2017)
105 ORDER granting 103 Motion for a Status Conference and Briefing Schedule; directing Plaintiff to submit a brief; and scheduling a hearing. Signed by Judge T. S. Ellis on 8/2/2017. (bmhs, Deputy Clerk) (Entered: 08/02/2017)
106 MOTION to Appear Pro Hac Vice for Jonathan Hafetz (Filing fee $100, receipt number 0416−6813625.) by Amnesty International USA, Global Fund for Women, Human Rights Watch, National Association of Criminal Defense Attorneys, Pen American Center, The Nation Magazine, The Rutherford Institute, Washington Office on Latin America, Wikimedia Foundation(Rocah, David) (Entered: 08/03/2017)
107 RESPONSE re 105 Order on Motion for Miscellaneous Relief filed by Wikimedia Foundation.(Toomey, Patrick) (Entered: 08/11/2017)
108 PAPERLESS ORDER granting 106 Motion to Appear Pro Hac Vice on behalf of Jonathan Hafetz. Directing attorney Jonathan Hafetz to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 8/15/2017. (srd, Deputy Clerk) (Entered: 08/15/2017)
109 RESPONSE re 107 Response (Defendants' Response to Plaintiff's Brief Regarding How This Matter Should Proceed) filed by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers.(Gilligan, James) (Entered: 08/26/2017)
110 Consent MOTION for Extension of Time (Unopposed Motion For An Eight−Hour Extension Of Time Nunc Pro Tunc To File Defendants Response To Plaintiffs Brief Regarding How This Matter Should Proceed) by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers (Attachments: # 1 Text of Proposed Order)(Gilligan, James) (Entered: 08/28/2017)
111 RESPONSE re 109 Response, filed by Wikimedia Foundation.(Toomey, Patrick) (Entered: 09/01/2017)
112 PAPERLESS ORDER rescheduling the status conference from September 8, 2017 to September 22, 2017 at 1:00 p.m. Signed by Judge T. S. Ellis on 9/6/2017. (bmhs, Deputy Clerk) (Entered: 09/06/2017)
113 NOTICE of Appearance by Timothy A Johnson on behalf of All Defendants (Johnson, Timothy) (Entered: 09/13/2017)
115 Status Conference held on 9/22/2017 before Judge T. S. Ellis.(Court Reporter: Michael A. Rodriquez) (bmhs, Deputy Clerk) (Entered: 09/28/2017)
114 ORDER directing parties to file a joint status plan for discovery on jurisdictional issues. Signed by Judge T. S. Ellis on 9/25/2017. (bmhs, Deputy Clerk) (Entered: 09/27/2017)
116 REPORT of Rule 26(f) Planning Meeting (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 09/28/2017)
117 ORDER granting parties 5 months of discovery to commence on 10/17/17. Signed by Judge T. S. Ellis on 10/3/2017. (bmhs, Deputy Clerk) (Entered: 10/05/2017)
118 ANSWER to 72 Amended Complaint,, by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers.(Gilligan, James) (Entered: 10/16/2017)

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 24 of 30

12/28/2017 12/29/2017

119 NOTICE by Wikimedia Foundation of Stipulated Protective Order (Gorski, Ashley) (Entered: 12/28/2017)
120 STIPULATED PROTECTIVE ORDER Approving terms and conditions of parties re: confidential information. Signed by Judge T. S. Ellis on 12/29/2017 (cags, Deputy Clerk) (Entered: 12/29/2017)

01/12/2018

121 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 9/22/17, before Judge T.S. Ellis, III. Court Reporter/Transcriber Tonia M. Harris. Total number of pages filed: 50. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 2/2/2018. Redacted Transcript Deadline set for 2/12/2018. Release of Transcript Restriction set for 4/12/2018.(bmhs, Deputy Clerk) (Entered: 01/12/2018)

03/12/2018

122 Joint MOTION for Other Relief (Joint Motion to Continue Discovery Deadline Pending Parties Submission of a Proposed Schedule for Completion of Jurisdictional Discovery) by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers (Attachments: # 1 Text of Proposed Order)(Gilligan, James) (Entered: 03/12/2018)

03/15/2018 03/22/2018 03/26/2018
03/26/2018

123 ORDER denying 122 Joint Motion to Continue Discovery Deadline Pending Parties Submission of a Proposed Schedule for Completion of Jurisdictional Discovery. Signed by Judge T. S. Ellis on 3/15/2018. (bmhs, Deputy Clerk) (Entered: 03/16/2018)
124 Joint MOTION for Other Relief (Joint Motion to Set Briefing Schedule for Motions to Compel) by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A − Memorandum from Attorney General)(Johnson, Timothy) (Entered: 03/22/2018)
125 Local Rule 104.7 Certificate (Attachments: # 1 Motion to Compel Discovery Responses and Deposition Testimony, # 2 Memorandum in Support of Motion to Compel, # 3 Affidavit Declaration of Patrick Toomey, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11, # 15 Exhibit 12, # 16 Exhibit 13, # 17 Exhibit 14, # 18 Exhibit 15, # 19 Exhibit 16, # 20 Exhibit 17, # 21 Exhibit 18, # 22 Exhibit 19, # 23 Exhibit 20, # 24 Exhibit 21, # 25 Exhibit 22, # 26 Exhibit 23, # 27 Exhibit 24, # 28 Exhibit 25, # 29 Exhibit 26, # 30 Exhibit 27, # 31 Exhibit 28, # 32 Exhibit 29, # 33 Exhibit 30, # 34 Text of Proposed Order)(Toomey, Patrick) (Entered: 03/26/2018)
126 MOTION to Compel Discovery by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers (Attachments: # 1 Exhibit (Memorandum in Support), # 2 Exhibit (Exhibit 1), # 3 Exhibit (Exhibit 2), # 4 Errata (Exhibit 3), # 5 Text of Proposed Order)(Gilligan, James) (Entered: 03/26/2018)

03/28/2018 127 NOTICE of Appearance by Olivia R. Hussey Scott on behalf of All Defendants (Scott, Olivia) (Entered: 03/28/2018)

04/06/2018 128 MOTION to Appear Pro Hac Vice for Molly A. Smolen (Filing fee $100, receipt number 0416−7257344.) by Wikimedia Foundation(Rocah, David) (Entered: 04/06/2018)

04/06/2018 04/06/2018 04/06/2018

129 MOTION to Appear Pro Hac Vice for Benjamin H. Kleine (Filing fee $100, receipt number 0416−7257347.) by Wikimedia Foundation(Rocah, David) (Entered: 04/06/2018)
130 MOTION to Appear Pro Hac Vice for Devon Hanley Cook (Filing fee $100, receipt number 0416−7257349.) by Wikimedia Foundation(Rocah, David) (Entered: 04/06/2018)
132 ORDER re: 124 parties' Joint Motion to Set Briefing Schedule for Motions to Compel. Signed by Judge T. S. Ellis on 4/6/2018. (bmhs, Deputy Clerk) (Entered: 04/09/2018)

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04/07/2018 04/10/2018

131 NOTICE by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers re 126 MOTION to Compel Discovery (Notice of Withdrawal of Motion to Compel) (Gilligan, James) (Entered: 04/07/2018)
133 PAPERLESS ORDER granting 128 Motion to Appear Pro Hac Vice on behalf of Molly Smolen. Directing attorney Molly Smolen to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 4/10/2018. (srd, Deputy Clerk) (Entered: 04/10/2018)

04/10/2018

134 PAPERLESS ORDER granting 129 Motion to Appear Pro Hac Vice on behalf of Benjamin Kleine. Directing attorney Benjamin Kleine to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 4/10/2018. (srd, Deputy Clerk) (Entered: 04/10/2018)

04/10/2018

135 PAPERLESS ORDER granting 130 Motion to Appear Pro Hac Vice on behalf of Devon Cook. Directing attorney Devon Cook to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 4/10/2018. (srd, Deputy Clerk) (Entered: 04/10/2018)

04/18/2018 04/27/2018 04/28/2018
04/28/2018

136 Supplemental to 125 Local Rule,,, filed by Wikimedia Foundation Supplement to Plaintiff's Motion to Compel 125 (Toomey, Patrick) (Entered: 04/18/2018)
137 NOTICE by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers (Patton, Rodney) (Entered: 04/27/2018)
138 RESPONSE re 125 Local Rule,,, in Opposition to Plaintiff's Motion to Compel Discovery Responses and Deposition Testimony filed by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Text of Proposed Order)(Gilligan, James) (Entered: 04/28/2018)
139 MOTION for Extension of Time to File Out of Time by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers (Attachments: # 1 Text of Proposed Order)(Gilligan, James) (Entered: 04/28/2018)

04/30/2018 140 ORDER granting 139 Defendants' Out−of−Time Motion for a Five and One−Half Hour Extension of Time. Signed by Judge T. S. Ellis on 4/30/2018. (bmhs, Deputy Clerk) Modified on 5/1/2018 (bmhs, Deputy Clerk). (Entered: 05/01/2018)

05/11/2018

141 NOTICE by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers (Notice of Filing Unclassified (Redacted) Version of Classified Declaration Lodged With the Court In Camera and Ex Parte on April 27, 2018, in Support of the Government's Assertion of the State Secrets Privilege and Related Statutory Privileges) (Attachments: # 1 Exhibit (Redacted Declaration of George C. Barnes, Deputy Director, National Security Agency))(Gilligan, James) (Entered: 05/11/2018)

05/17/2018 05/18/2018 05/29/2018 06/08/2018

142 RESPONSE re 132 Order on Motion for Other Relief . Joint Response to Court Order re: June 1, 2018 Hearing filed by Wikimedia Foundation.(Toomey, Patrick) (Entered: 05/17/2018)
143 RESPONSE re 138 Response, Reply Brief in Support of Plaintiff's Motion to Compel filed by Wikimedia Foundation. (Attachments: # 1 Declaration of Ashley Gorski, # 2 Exhibit 1, # 3 Exhibit 2)(Gorski, Ashley) (Entered: 05/18/2018)
144 ORDER rescheduling the upcoming hearing on Plaintiff's Motion to Compel. Signed by Judge T. S. Ellis on 5/29/2018. (bmhs, Deputy Clerk) (Entered: 05/29/2018)
145 Consent MOTION to Withdraw as Attorney (Timothy A. Johnson) by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers(Johnson, Timothy) (Entered: 06/08/2018)

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06/22/2018 06/28/2018

146 ORDER granting 145 Motion to Withdraw as Attorney. Attorney Timothy A Johnson terminated. Signed by Judge T. S. Ellis on 6/21/2018. (bmhs, Deputy Clerk) (Entered: 06/22/2018)
147 Correspondence Correcting Earlier Submission: 138 Response, (Attachments: # 1 Attachment Corrected Version of Defendants' Memorandum of Points and Authorities in Opposition to Plaintiff's Motion to Compel Discovery Responses and Deposition Testimony)(Scott, Olivia) (Entered: 06/28/2018)

07/06/2018

148 Supplemental to 125 Local Rule,,, filed by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers (Defendants' Supplemental Memorandum in Opposition to Plaintiffs' Motion to Compel) (Gilligan, James) (Entered: 07/06/2018)

07/06/2018 149 Supplemental to 125 Local Rule,,, filed by Wikimedia Foundation (Plaintiff's Supplemental Brief in Response to the Court's June 29, 2018 Order) (Gorski, Ashley) (Entered: 07/06/2018)

08/20/2018 08/20/2018
08/31/2018 09/04/2018

150 MEMORANDUM OPINION. Signed by Judge T. S. Ellis on 8/20/2018. (bmhs, Deputy Clerk) (Entered: 08/20/2018)
151 ORDER denying 126 Plaintiff's Motion to Compel Discovery Responses and Deposition Testimony. Signed by Judge T. S. Ellis on 8/20/2018. (bmhs, Deputy Clerk) (Entered: 08/20/2018)
152 ORDER scheduling a status conference. Signed by Judge T. S. Ellis on 8/31/2018. (bmhs, Deputy Clerk) (Entered: 09/04/2018)
153 ORDER scheduling a status conference. Signed by Judge T. S. Ellis on 9/4/2018. (bmhs, Deputy Clerk) (Entered: 09/04/2018)

09/18/2018 154 MOTION for Other Relief (Motion to Set a Summary Judgment Briefing Schedule) by Wikimedia Foundation (Attachments: # 1 Text of Proposed Order)(Toomey, Patrick) (Entered: 09/18/2018)

09/20/2018
09/21/2018 09/21/2018 09/26/2018 11/06/2018

155 MOTION to Set a Summary Judgment Briefing Schedule and Response to Plaintiff's Motion to Set a Summary Judgment Briefing Schedule re 154 MOTION for Other Relief (Motion to Set a Summary Judgment Briefing Schedule) by James R. Clapper, Department of Justice, Eric H. Holder, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers (Attachments: # 1 Text of Proposed Order)(Scott, Olivia) (Entered: 09/20/2018)
156 ORDER granting in part and denying in part 154 Plaintiff's Motion to Set a Summary Judgment Briefing Schedule; and granting in part and denying in part 155 Defendants' Motion to Set a Summary Judgment Briefing Schedule. Signed by Judge T. S. Ellis on 9/21/2018. (bmhs, Deputy Clerk) (Entered: 09/24/2018)
157 Status Conference held on 9/21/2018 before Judge T. S. Ellis.(Court Reporter: Tonia Harris) (bmhs, Deputy Clerk) (Entered: 09/26/2018)
158 ORDER setting briefing and oral argument schedule. Signed by Judge T. S. Ellis on 9/25/2018. (bmhs, Deputy Clerk) (Entered: 09/26/2018)
159 MOTION for Extension of Time to File MSJ − Unopposed Motion for Extension of One Business Day to Submit Defendants Summary Judgment Motion by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers (Attachments: # 1 Text of Proposed Order)(Berman, Julia) (Entered: 11/06/2018)

11/13/2018

160 MOTION for Extension of Time to File Motion for Summary Judgment; Defendants Out−of−Time Motion for Extension of One Business Day to Submit Defendants Summary Judgment Motion by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers (Attachments: # 1 Text of Proposed Order)(Berman, Julia) (Entered: 11/13/2018)

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11/13/2018 11/13/2018

161 MOTION for Summary Judgment by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers (Attachments: # 1 Text of Proposed Order, # 2 Memorandum in Support (Filed Under Seal), # 3 Exhibit List (Filed Under Seal), # 4 Exhibit 1 (Filed Under Seal), # 5 Exhibit 2 (Filed Under Seal), # 6 Exhibit 3 (Filed Under Seal), # 7 Exhibit 4 (Filed Under Seal), # 8 Exhibit 5 (Filed Under Seal))(Gilligan, James) (Entered: 11/13/2018)
162 −SEALED − NOTICE of Filing Under Seal Sealed Brief in Support of Defendants' Motion for Summary Judgment and Sealed Exhibits by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers re 161 MOTION for Summary Judgment (Attachments: # 1 Sealed Exhibit List, # 2 Sealed Exhibit 1, # 3 Sealed Exhibit 2, # 4 Sealed Exhibit 3, # 5 Sealed Exhibit 4, # 6 Sealed Exhibit 5)(Gilligan, James) (Entered: 11/13/2018)

11/13/2018

163 MOTION to Seal Defendants' Summary Judgment Motion Pursuant to Civil Local Rule 105−11 and Protective Order Paragraph 12.3 by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers (Attachments: # 1 Text of Proposed Order)(Gilligan, James) (Entered: 11/13/2018)

12/07/2018

164 MOTION for Leave to File Updated Public Versions of the Under Seal Portions of Defendants' Motion for Summary Judgment by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers (Attachments: # 1 Text of Proposed Order, # 2 Attachment A, # 3 Attachment B, # 4 Attachment C, # 5 Attachment D, # 6 Attachment E, # 7 Attachment F, # 8 Attachment G)(Scott, Olivia) (Entered: 12/07/2018)

12/11/2018 12/11/2018 12/18/2018 12/18/2018

165 ORDER granting 163 Defendants' Motion to Seal; and granting 164 Defendants' Motion for Leave to File an Updated Public Version of Defendants' Sealed Motion for Summary Judgment. Signed by Judge T. NA S. Ellis on 12/11/2018. (bmhs, Deputy Clerk) (Entered: 12/11/2018)
166 Supplemental Exhibits A−G to 161 Motion for Summary Judgment. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G)(bmhs, Deputy Clerk) (Entered: 12/11/2018)
167 MOTION for Extension of Time to File Opposition to Motion for Summary Judgment; Plaintiff's Out−of−Time Motion for Extension to Submit Opposition to Defendants' Summary Judgment Motion by Wikimedia Foundation (Attachments: # 1 Text of Proposed Order)(Toomey, Patrick) (Entered: 12/18/2018)
168 RESPONSE in Opposition re 161 MOTION for Summary Judgment filed by Wikimedia Foundation. (Attachments: # 1 Exhibit List, # 2 Exhibit 1 − Declaration of Scott Bradner, # 3 Exhibit 1 − Appendix to Bradner Declaration [1/3], # 4 Exhibit 1 − Appendix to Bradner Declaration [2/3], # 5 Exhibit 1 − Appendix to Bradner Declaration [3/3], # 6 Exhibit 2 − Declaration of Jonathon Penney, # 7 Exhibit 3 − Declaration of Michelle Paulson, # 8 Exhibit 4 − Declaration of James Alexander, # 9 Exhibit 5 − Declaration of Tilman Bayer, # 10 Exhibit 6 − Declaration of Emily Temple−Wood, # 11 Exhibit 7 − Declaration of Patrick Toomey, # 12 Exhibit 8, # 13 Exhibit 9, # 14 Exhibit 10, # 15 Exhibit 11, # 16 Exhibit 12, # 17 Exhibit 13, # 18 Exhibit 14, # 19 Exhibit 15, # 20 Exhibit 16, # 21 Exhibit 17, # 22 Exhibit 18, # 23 Exhibit 19, # 24 Exhibit 20, # 25 Exhibit 21, # 26 Exhibit 22, # 27 Exhibit 23, # 28 Exhibit 24, # 29 Exhibit 25, # 30 Exhibit 26, # 31 Exhibit 27, # 32 Exhibit 28, # 33 Exhibit 29, # 34 Exhibit 30, # 35 Exhibit 31, # 36 Exhibit 32, # 37 Exhibit 33, # 38 Exhibit 34, # 39 Exhibit 35, # 40 Exhibit 36, # 41 Exhibit 37, # 42 Exhibit 38, # 43 Exhibit 39, # 44 Exhibit 40, # 45 Exhibit 41, # 46 Exhibit 42, # 47 Exhibit 43, # 48 Exhibit 44, # 49 Exhibit 45, # 50 Text of Proposed Order)(Toomey, Patrick) (Entered: 12/18/2018)

12/19/2018 169 ORDER granting 167 Plaintiff's Out−of−Time Motion for an Extension of Time to File Its Opposition to Defendants' Motion for Summary Judgment. Signed by Judge T. NA S. Ellis on 12/19/2018. (bmhs, Deputy Clerk) (Entered: 12/19/2018)

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 28 of 30

12/19/2018 12/26/2018

170 ORDER granting 159 Defendants' Out−of−Time Motion for Extension of One Business Day to Submit Defendants' Summary Judgment Motion. Signed by Judge T. NA S. Ellis on 12/19/2018. (bmhs, Deputy Clerk) (Entered: 12/19/2018)
171 MOTION to Stay of Proceedings in Light of Lapse of Appropriations by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers (Attachments: # 1 Text of Proposed Order)(Scott, Olivia) (Entered: 12/26/2018)

12/27/2018 172 RESPONSE re 171 MOTION to Stay of Proceedings in Light of Lapse of Appropriations filed by Wikimedia Foundation.(Gorski, Ashley) (Entered: 12/27/2018)

01/02/2019 173 ORDER granting 171 Motion to Stay; and vacating the 9/25/18 order establishing a briefing and oral argument schedule. Signed by Judge T. NA S. Ellis on 1/2/2019. (bmhs, Deputy Clerk) (Entered: 01/02/2019)

01/28/2019
01/31/2019 01/31/2019 02/04/2019

174 NOTICE by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers to the Court of Restoration of Appropriations (Scott, Olivia) (Entered: 01/28/2019)
175 Joint MOTION for Other Relief (Joint Motion to Set Revised Schedule) by Wikimedia Foundation (Attachments: # 1 Text of Proposed Order)(Gorski, Ashley) (Entered: 01/31/2019)
176 ORDER LIFTING STAY. Signed by Judge T. NA S. Ellis on 1/31/2019. (kw2s, Deputy Clerk) (Entered: 01/31/2019)
177 ORDER granting 175 Joint Motion to Set a Revised Schedule. Signed by Judge T. NA S. Ellis on 2/1/2019. (bmhs, Deputy Clerk) (Entered: 02/04/2019)

02/15/2019

178 REPLY to Response to Motion re 161 MOTION for Summary Judgment (Reply Brief in Support of Defendants' Motion for Summary Judgment) filed by James R. Clapper, Department of Justice, Eric H. Holder, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers. (Attachments: # 1 Exhibit List, # 2 Affidavit (Exh. 6 (Second) Schulzrinne Declaration), # 3 Affidavit (Exh. 7 Salzberg Declaration), # 4 Affidavit (Exh. 8 (Second) Gilligan Declaration), # 5 Exhibit 9, # 6 Exhibit 10, # 7 Exhibit 11, # 8 Exhibit 12, # 9 Exhibit 13, # 10 Exhibit 14, # 11 Exhibit 15)(Gilligan, James) (Entered: 02/15/2019)

03/01/2019 03/04/2019 03/08/2019
03/22/2019
04/03/2019

179 MOTION for Leave to File Excess Pages [Unopposed] by Wikimedia Foundation (Attachments: # 1 Text of Proposed Order)(Gorski, Ashley) (Entered: 03/01/2019)
180 ORDER granting 179 Unopposed Motion for Leave to File Excess Pages. Signed by Judge T. NA S. Ellis on 3/4/2019. (bmhs, Deputy Clerk) (Entered: 03/04/2019)
181 RESPONSE in Opposition re 161 MOTION for Summary Judgment (Sur−reply Brief in Opposition to Defendants' Motion for Summary Judgment) filed by Wikimedia Foundation. (Attachments: # 1 Exhibit 1. Second Bradner Declaration, # 2 Exhibit 2. Second Penney Declaration, # 3 Exhibit 3. Second Paulson Declaration, # 4 Exhibit 4. Second Bayer Declaration, # 5 Exhibit 5. Second Temple−Wood Declaration)(Toomey, Patrick) (Entered: 03/08/2019)
182 REPLY to Response to Motion re 161 MOTION for Summary Judgment (Sur−Reply in Support of Defendants' Motion for Summary Judgment) filed by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers. (Attachments: # 1 Exhibit List, # 2 Affidavit (Exh. 16 (Third) Schulzrinne Declaration), # 3 Affidavit (Exh. 17 Second Salzberg Declaration))(Gilligan, James) (Entered: 03/22/2019)
183 ORDER Rescheduling Oral Argument for May, 30 2019 at 2:00 p.m.. Signed by Judge T. NA S. Ellis on 4/3/2019. (bas, Deputy Clerk) (Entered: 04/04/2019)

04/29/2019 184 NOTICE by James R. Clapper, Department of Justice, Loretta E. Lynch, National Security Agency/Central Security Service, Office of the Director of National Intelligence, Michael S. Rogers of Recent Decision (Attachments: # 1

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05/03/2019 05/30/2019 08/09/2019
12/16/2019 12/16/2019
12/17/2019 02/14/2020 02/19/2020
02/21/2020 03/27/2020
04/01/2020
05/11/2020 05/12/2020

Attachment)(Scott, Olivia) (Entered: 04/29/2019)
185 RESPONSE re 184 Notice (Other), filed by Wikimedia Foundation.(Toomey, Patrick) (Entered: 05/03/2019)
186 Civil Motion Hearing held on 5/30/2019 before Judge T. NA S. Ellis. (bmhs, Deputy Clerk) (Entered: 05/31/2019)
187 (FILED IN ERROR) NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 5/30/2019, before Judge T.S. Ellis, III. Court Reporter/Transcriber Tonia M. Harris, Telephone number 703−646−1438. Total number of pages filed: 69. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 8/30/2019. Redacted Transcript Deadline set for 9/9/2019. Release of Transcript Restriction set for 11/7/2019.(bmhs, Deputy Clerk) Modified on 5/12/2020 (bmhs, Deputy Clerk). (Entered: 08/09/2019)
188 MEMORANDUM OPINION. Signed by Judge T. NA S. Ellis on 12/13/2019. (kw2s, Deputy Clerk) (Entered: 12/16/2019)
189 ORDER Granting 161 MOTION for Summary Judgment filed by National Security Agency/Central Security Service, Loretta E. Lynch, Michael S. Rogers, Office of the Director of National Intelligence, James R. Clapper, Department of Justice. Signed by Judge T.S. Ellis on 12/13/2019. (kw2s, Deputy Clerk) Modified on 12/17/2019 (kw2s, Deputy Clerk). (Entered: 12/16/2019)
190 JUDGMENT in favor of Defendants against Plaintiff. Signed by Felicia C. Cannon, Clerk of Court on 12/16/2019. (bmhs, Deputy Clerk) (Entered: 12/17/2019)
191 NOTICE OF APPEAL as to 190 Clerk's Judgment by Wikimedia Foundation. Filing fee $ 505, receipt number 0416−8516425.(Toomey, Patrick) (Entered: 02/14/2020)
192 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 191 Notice of Appeal. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(jb5, Deputy Clerk) (Entered: 02/19/2020)
193 USCA Case Number 20−1191 for 191 Notice of Appeal filed by Wikimedia Foundation. Case Manager − Kirsten Hancock (jb5s, Deputy Clerk) (Entered: 02/21/2020)
194 (FILED IN ERROR) NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6/29/2018, before Judge T.S. Ellis, III. Court Reporter/Transcriber Tonia M. Harris, Telephone number 703−646−1438. Total number of pages filed: 30. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 4/17/2020. Redacted Transcript Deadline set for 4/27/2020. Release of Transcript Restriction set for 6/25/2020.(bmhs, Deputy Clerk) Modified on 5/12/2020 (bmhs, Deputy Clerk). (Entered: 03/30/2020)
195 (ELECTRONICALLY FILED IN ERROR)TRANSCRIPT ORDER ACKNOWLEDGMENT by Wikimedia Foundation for proceedings held on Hearing: 06/29/2018 before Judge T. NA S. Ellis, re 191 Notice of Appeal − Transcript due by 6/8/2020. (Court Reporter: Tonia Harris)(slss, Deputy Clerk) Modified on 5/11/2020 (slss, Deputy Clerk). (Entered: 04/01/2020)
Set/Reset Transcript Deadlines re 195 Appeal Transcript Request. (slss, Deputy Clerk) (Entered: 05/11/2020)
196 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 6/29/2018, before Judge T.S. Ellis, III. Court Reporter/Transcriber Tonia M. Harris, Telephone number 703−646−1438. Total number of pages filed: 29. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction

Case: 1:15-cv-662 As of: 06/07/2020 05:21 PM EDT 30 of 30

05/12/2020

Request due 6/2/2020. Redacted Transcript Deadline set for 6/12/2020. Release of Transcript Restriction set for 8/10/2020.(bmhs, Deputy Clerk) (Entered: 05/12/2020)
197 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 5/30/2019, before Judge T.S. Ellis, III. Court Reporter/Transcriber Tonia M. Harris, Telephone number 703−646−1438. Total number of pages filed: 69. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 6/2/2020. Redacted Transcript Deadline set for 6/12/2020. Release of Transcript Restriction set for 8/10/2020.(bmhs, Deputy Clerk) (Entered: 05/12/2020)