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 gvar...@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-bill-renewing-nsas-internet-surveillance-program-idUSKBN1F82MK

[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/

-- 
Katherine Maher

Executive Director
Wikimedia Foundation

1 Montgomery Street, Suite 1600
San Francisco, CA 94104

+1 (415) 839-6885 ext. 6635
+1 (415) 712 4873
kma...@wikimedia.org
https://annual.wikimedia.org
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