By Ashley Gorski
Discussing the origins of the FBI’s Russia investigation, Attorney General William Barr recently claimed that “Government power was used to spy on American citizens.” He went on to say, “I can’t imagine any world where we wouldn’t take a look and make sure that was done properly.”
As some were quick to point out, the comments were rich coming from an architect of our government’s modern spying apparatus: As attorney general during the George H.W. Bush administration, Barr played a key role in developing a secret program that served as the blueprint for the NSA’s mass surveillance of Americans’ phone records.
But the hypocrisy of Barr’s comments goes well beyond his past. On Thursday, lawyers from Barr’s Justice Department tried to block a federal court from taking a look at the government’s surveillance of Americans.
The case—brought by the Wikimedia Foundation, which runs Wikipedia, one of the world’s most-visited websites—challenges the constitutionality of the U.S. government’s warrantless spying on Americans’ international internet communications, known as “Upstream” surveillance. (The American Civil Liberties Union, Knight First Amendment Institute, and Cooley LLP are representing Wikimedia in this challenge.)
With the help of companies like AT&T and Verizon, the National Security Agency conducts surveillance on U.S. soil by tapping directly into the internet’s backbone—the physical infrastructure that carries our emails, photos, personal chats, and web browsing. The agency then copies and searches a vast pool of internet communications flowing into and out of the United States. It does all of this without a warrant, in violation of the Fourth Amendment.
Wikimedia’s case could mark the first time a public court weighs in on the constitutionality of this decade-old spying operation. But in stark contrast to Barr’s public expressions of concern over the privacy of Americans, his Justice Department has thrown up a series of litigation roadblocks in an effort to prevent the court from ruling on the legality of this surveillance dragnet.
In fact, on Thursday, Justice Department lawyers argued that Wikimedia’s case should be dismissed outright. They contend that Wikimedia cannot prove with sufficient certainty that its communications are surveilled, and that it therefore lacks “standing” to sue.
But Wikimedia is plainly subject to warrantless surveillance. Wikimedia engages in more than 1 trillion international internet communications per year, with users in almost every country on earth. Because those communications are so numerous and so broadly dispersed across the globe, they travel every path carrying internet traffic into and out of the U.S. Even if the NSA is monitoring just one of those paths, it is monitoring Wikimedia’s communications. The government’s own disclosures about the scope of its surveillance make this clear.
In response to Wikimedia’s lawsuit, the Justice Department is relying on a legal tactic called the “state secrets privilege” to try to block the court from considering several of the government’s official disclosures. The Justice Department’s argument rests on the theory that the court’s consideration of this information would harm national security—even though the government has already declassified and released the same information to the public.
Incredibly, the Justice Department also asserts that the court cannot even rule on Wikimedia’s standing without harming national security, despite the fact that Congress created a special procedure in the Foreign Intelligence Surveillance Act to address this concern. The procedure is designed to account for any conflict between legitimate secrecy and accountability, and it allows lawsuits like this one to go forward.
If the court in Wikimedia’s suit accepts the Justice Department’s state secrets arguments, it would have far-reaching implications. In essence, it would mean that only the executive branch can decide how and when lawsuits challenging government surveillance may proceed—and that the government could unilaterally block courts from taking the very “look” that Barr says is necessary. That view of executive branch power is completely at odds with what Congress intended when it enacted FISA, and it could eviscerate the possibility of meaningful accountability for unlawful spying.
Wikimedia’s communications with its users are sensitive and private. They can reveal intimate information about users’ political affiliations, religious beliefs, medical questions, and personal interests. Just as the government shouldn’t be monitoring the reading habits of ordinary library patrons, it shouldn’t be monitoring what Wikimedia’s users are privately reading online.
If Barr really wants to champion accountability for violations of Americans’ privacy, he should stop trying to shut the courthouse doors on Wikimedia. It’s past time for the public courts to review the legality of the NSA’s surveillance of our internet communications.
Ashley Gorski is Staff Attorney with the ACLU National Security Project