Justices Hammer at NSA, Wikimedia FISA Interpretations
Federal appellate judges expressed some skepticism Friday with Wikimedia Foundation and government interpretations of the Foreign Intelligence Surveillance Act (FISA). The Wikipedia operator sought to overturn a lower court's summary judgment in its litigation claiming warrantless U.S. surveillance of its online communications. We were told a decision is likely around early fall.
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Much of the docket 20-1191 oral argument saw the 4th U.S. Circuit Court of Appeals panel going back and forth with both sides about their conflicting reads of FISA Section 1806(f). The section has courts privately review the validity of the surveillance when an aggrieved party seeks discovery of what's obtained during surveillance.
ACLU National Security Project lawyer Patrick Toomey, representing plaintiff-appellant Wikimedia, said 1806(f) language "is broad and clear" about aggrieved persons filing motions to get FISA information. Judge Albert Diaz said the statute's title seems to be consistent with the government stance that it applies when a defendant is attempting to rebuff use of information that comes from surveillance. Toomey said the heading, "use of information," doesn't specify use by the government, and the title "does not control the meaning of the text." He said government interpretation of the statute would mean an individual would have to litigate whether that person was surveilled to prove it, and during that, the government could assert its state secrets privilege for national security reasons to resist handing over information to a court.
A general verdict that protects state secrets "is clearly impossible," said DOJ lawyer Joseph Busa, representing defendant-appellee NSA. Replied Judge Diana Gribbon Motz, "I don't think that's necessarily so." Busa said a general verdict would disclose the existence or nonexistence of surveillance that itself is a state secret and would let U.S. adversaries "read tea leaves" about conducting surveillance. He said the risk of using state secrets even in proceedings not open to the public could lead to inadvertent disclosure elsewhere. Rather than a public road map, ruling for Wikimedia would just show it's likely to have been subject to surveillance but not anything concrete, Toomey said.
Section 1806(f) doesn't displace the federal government's state secrets privilege, Busa said. Diaz said the government's reading seems "a little inconsistent," since discovery is an option under 1806(f).
Wikimedia's suit alleges what it called "suspicionless" interception of its online traffic by NSA monitoring of almost all international and many domestic text communications. It said government disclosures about the surveillance make it "'virtually certain' that the NSA has copied and reviewed Wikimedia's communications and that it continues to."
Motz pressed the government that its read of FISA Section 1810, covering civil liability for unauthorized surveillance, would seem to give government unlimited power to do away with any claims. She said government is obliged under FISA to give notice to a defendant when evidence comes from surveillance of its communications, but "we know from history you sometimes don't give notice and there is surveillance." Busa said DOJ has confessed errors before and "redoubled its efforts." "I'm glad to hear that," Motz replied with a chuckle.
Judge Allison Jones Rushing pressed both sides regarding a technologist brief saying ISPs encapsulate their headers, which makes government allegations of filtering questionable, since that would necessitate header access. Busa said that brief is incorrect, and it's not an opinion on the record and subject to adversarial testing before the lower court. Rushing called the technologist brief "interesting."