Forwarding this update regarding our NSA case.

-greg

---------- Forwarded message --------- From: Katherine Maher kmaher@wikimedia.org Date: Mon, Jan 29, 2018 at 4:14 PM Subject: [Wmfall] Update on Wikimedia vs. NSA To: Staff (All) wmfall@lists.wikimedia.org, Wikimedia Mailing List < wikimedia-l@lists.wikimedia.org>

Hi all,

I’d like to share an update and next steps in our lawsuit against the U.S. National Security Agency (NSA), Wikimedia Foundation v. NSA.[1] As you’ll recall, in March 2015, the Wikimedia Foundation joined eight other plaintiffs in filing a suit in United States Federal District Court against the NSA[2] and the Department of Justice,[3] among others. We have been represented pro bono[4] by the American Civil Liberties Union (ACLU)[5] and the Knight First Amendment Institute at Columbia University.[6] The law firm Cooley LLP[7] has also been serving as pro bono co-counsel for the Foundation.

Since we’re coming on the three-year anniversary, I wanted to offer a reminder of why we filed this suit. Our challenge supports the foundational values of our movement: the right to freedom of expression and access to information. Free knowledge requires freedom of inquiry, particularly in the case of challenging and unpopular truths. Each day people around the world engage with difficult and controversial subjects on Wikipedia and other Wikimedia projects. Pervasive mass surveillance brings the threat of reprisal, creates a chilling effect, and undermines the freedoms upon which our projects and communities are founded. In bringing this suit, we joined a tradition of knowledge stewards who have fought to preserve the integrity of intellectual inquiry.

Our lawsuit challenges dragnet surveillance by the NSA, specifically the large-scale seizing and searching of Internet communications frequently referred to as “Upstream” surveillance.[8] The U.S. government is tapping directly into the internet’s “backbone”[9]—the network of high-capacity cables, switches, and routers that carry domestic and international communications—and seizing and searching virtually all text-based internet communications flowing into and out of the United States. It’s this backbone that connects the global Wikimedia community to our projects. These communications are being seized and searched without any requirement that there be suspicion, for example, that the communications have a connection to terrorism or national security threats.

Last May, we reached an important milestone: a Federal Court of Appeals[10] in the United States ruled[11] that the Foundation alone had plausibly alleged “standing”[12] to proceed with our claims that Upstream mass surveillance seizes and searches of the online communications of Wikimedia users, contributors and Foundation staff in violation of the U.S. Constitution and other laws. The Court of Appeals’ ruling means that we are the sole remaining plaintiff among the nine original co-plaintiffs. There is still a long road ahead, but this intermediate victory makes this case one of the most important vehicles for challenging the legality of this particular NSA surveillance practice.

As a result of our win in the appellate court, we are now proceeding to the next stage of the case: discovery.[13] In the U.S. court system, parties use the discovery stage to exchange evidence and ask each other questions about their claims. We have requested information and documents from the government, and they have made similar requests from us. The entire phase, which will also involve research and reports from experts, is expected to last the next few months.

As part of our commitment to privacy, I want you to know about what this stage of the case means for our data retention practices. Our goal in bringing this lawsuit was to protect user information. In this case, like other litigation in which we engage, we may sometimes be legally required to preserve some information longer than the standard 90-day period in our data retention guidelines. These special cases are acknowledged and permitted by our privacy and data retention policies.[14]

As always, however, we remain committed to keeping user data no longer than legally necessary. We never publish the exact details of litigation-related data retention, as part of our legal strategy to keep personal data safe. And we defend any personal data from disclosure to the maximum extent, taking both legal and technical measures to do so. We are keeping sensitive material encrypted and offline, and we have the support of the experienced legal teams at the ACLU and Cooley in ensuring its safety and integrity. Wikimedia Foundation v. NSA is currently one of the only freedom of expression and access to knowledge cases being prosecuted against government surveillance overreach. Unfortunately, the recent extension of these surveillance practices by the U.S. Congress[15] demonstrates that the courts may well be the only venue to stop or restrict these practices.

The nature of litigation means that we will not always be able to discuss certain details of any case in public. For example, deliberations about tactical or strategic decisions will need to remain confidential in order to preserve the attorney-client privilege.[16] In such situations, particularly in a sensitive and important case like this, we are always balancing the need for confidentiality with our commitment to transparency. So while some information will not be public, we want to be available to address your questions, should you have any. Please direct them to Greg Varnum gvarnum@wikimedia.org, who can help provide answers.

We will continue keeping you updated on our progress and anything that might affect our communities and visitors to the Wikimedia sites.[17]

I would like to thank Tilman Bayer, Nuria Ruiz, Faidon Liambotis, Andrew Otto, James Alexander, Brandon Black, Byron Bogaert, Dan Foy, Grace Gellerman, Aeryn Palmer and Jim Buatti for their extensive dedication to this case. And thanks to the C-levels supporting this work, Eileen Hershenov, Victoria Coleman, and Toby Negrin.

Yours, Katherine

[1] https://blog.wikimedia.org/2017/06/23/wikimedia-v-nsa-present-future/ [2] https://en.wikipedia.org/wiki/National_Security_Agency [3] https://en.wikipedia.org/wiki/United_States_Department_of_Justice [4] https://en.wikipedia.org/wiki/Pro_bono [5] https://en.wikipedia.org/wiki/American_Civil_Liberties_Union [6] https://knightcolumbia.org/ [7] https://www.cooley.com/ [8] https://en.wikipedia.org/wiki/Upstream_collection [9] https://en.wikipedia.org/wiki/Internet_backbone [10] https://en.wikipedia.org/wiki/United_States_courts_of_appeals [11] https://blog.wikimedia.org/2017/05/23/wikimedia-nsa-appeal-standing/ [12] https://en.wikipedia.org/wiki/Standing_(law) [13] https://en.wikipedia.org/wiki/Discovery_(law) [14] https://meta.wikimedia.org/wiki/Data_retention_guidelines [15] https://www.reuters.com/article/us-usa-trump-cyber-surveillance/trump-signs-...

[16] https://en.wikipedia.org/wiki/Attorney%E2%80%93client_privilege [17] https://policy.wikimedia.org/stopsurveillance/

*Previous updates for your review:*

June 23 2017 https://blog.wikimedia.org/2017/06/23/wikimedia-v-nsa-present-future/ June 16 2017 https://blog.wikimedia.org/2017/06/16/fake-news-nsa-lawsuit-yale/ May 23 2017 https://blog.wikimedia.org/2017/05/23/wikimedia-nsa-appeal-standing/ December 9 2016 https://blog.wikimedia.org/2016/12/09/wikimedia-v-nsa-hearing-fourth-circuit... October 17 2016 https://blog.wikimedia.org/2016/10/17/wikimedia-v-nsa-appeal-hearing/ May 9 2016 https://blog.wikimedia.org/2016/05/09/wikimedia-nsa-appeal/ April 11 2016 https://blog.wikimedia.org/2016/04/11/new-resource-wikimedia-nsa/ February 17 2016 https://blog.wikimedia.org/2016/02/17/wikimedia-nsa-appeal-filed/ December 15 2015 https://blog.wikimedia.org/2015/12/15/wikimedia-nsa-notice-of-appeal/ October 23 2015 https://blog.wikimedia.org/2015/10/23/wikimedia-v-nsa-lawsuit-dismissal/ September 28 2015 https://blog.wikimedia.org/2015/09/28/wikimedia-nsa-first-hearing/ September 4 2015 https://blog.wikimedia.org/2015/09/04/motion-to-dismiss-wikimedia-v-nsa/ March 10 2015 https://blog.wikimedia.org/2015/03/10/wikimedia-v-nsa/