Civil Practice – State secrets privilege bars suit over NSA surveillance

Where the discovery procedures of the Foreign Intelligence Surveillance Act, or FISA, didn’t apply to Wikimedia’s suit against the National Security Agency, or NSA, alleging the agency is spying on Wikimedia’s communications through its Upstream surveillance program, the suit was barred by the state secrets privilege.

Background

The Wikimedia Foundation contends that the government is spying on its communications using Upstream, an electronic surveillance program run by the NSA. The district court dismissed the case, holding that Wikimedia didn’t establish a genuine issue of material fact as to standing and that further litigation would unjustifiably risk the disclosure of state secrets.

Standing

Wikimedia claimed it had standing because (1) its communications travel across every international internet link; (2) the NSA conducts Upstream surveillance on at least one such link and (3) “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.” The government maintains that Wikimedia hasn’t established a genuine issue for trial as to standing on the second prong. The court disagrees.

Wikimedia next argues that summary judgment for the government wasn’t appropriate as to the third prong: that the NSA copies all communications on a monitored link. In particular, Wikimedia asserts that this prong is supported by (1) “the government’s own disclosures”; (2) the “technical and practical necessities” of conducting Upstream surveillance and (3) the NSA’s goal of “comprehensively [acquiring] communications that are sent to or from its targets.” Relatedly, Wikimedia contends that the court shouldn’t have excluded a portion of its expert opinion when assessing this prong. Because reasonable inferences drawn from the government’s concession in the Foreign Intelligence Surveillance Court opinion establish a genuine issue of material fact as to the third prong, the district court erred in granting summary judgment to the government.

State secrets

The first lines of 50 U.S.C. § 1806(f) describe three conditions that trigger the district court’s in camera and ex parte review obligations: (i) when the federal or state government notifies the court that it intends to use electronic surveillance information against an aggrieved person, which it’s required to do before introducing such evidence in a judicial proceeding under § 1806(c) or (d); (ii) when an aggrieved person makes a motion to suppress electronic surveillance information used by the government under § 1806(e) and (iii) when an aggrieved person makes “any motion or request … pursuant to any other statute or rule … to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance.”

Wikimedia claims that the third condition unambiguously encompasses the circumstances at hand: Wikimedia is an aggrieved person that made a motion before the district court under Federal Rule of Civil Procedure 37(a) to compel discovery of “materials relating to electronic surveillance.” Wikimedia thus reads § 1806(f) as a free-floating right to obtain information related to the government’s electronic surveillance pursuant to any (and all) federal statutes or rules.

Reading the third condition in context reveals that Wikimedia’s gloss makes for a shiny but ill-fitting shoe. Both parties agree that § 1806(f) may apply regardless of who initiated the suit. But the court agrees with the government that § 1806(f) describes procedures for determining the admissibility of electronic surveillance information only when the government seeks to use such evidence in a particular proceeding—whether civil or criminal. Thus, even assuming that Wikimedia is an aggrieved person, it can’t use § 1806(f) to force the government to introduce electronic surveillance information into this case. And because FISA’s discovery procedures don’t govern here, the state secrets privilege requires dismissal of this case.

Affirmed.

Concurrence/dissent

(Motz, J.): I concur in the holding that the district court erred in granting summary judgment as to Wikimedia’s standing. My colleagues also conclude that § 106(f) does not displace the common law state secrets privilege. Two months ago, the Supreme Court granted certiorari on this very question. I would stay this case pending the outcome of the case before the Supreme Court.

Concurrence

(Rushing, J.): I would hold that Wikimedia has failed to demonstrate a dispute of material fact regarding its standing and therefore would affirm the district court’s grant of summary judgment on standing grounds.

Wikimedia Foundation v. National Security Agency/Central Security Service (Lawyers Weekly No. 001-174-21, 68 pp.) (Albert Diaz, J.) (Diana Gribbon Motz, J., concurring in part and dissenting in part) (Allison Jones Rushing, J., concurring in part and in the judgment) Case No. 20-1191. Sept. 15, 2021. From E.D. Va. (T.S. Ellis III, S.J.) Patrick Christopher Toomey for Appellant. Joseph Forrest Busa for Appellees.