Fourth Circuit finds standing in NSA Upstream surveillance case

Around a year ago, I submitted an amicus brief in the Fourth Circuit arguing that Wikimedia had standing to challenge NSA Upstream surveillance under the First Amendment. The brief was joined by Marc Blitz, Michael Froomkin, David Goldberger, James Grimmelmann, Lyrissa Lidsky, Neil Richards, and Katherine Strandburg– all scholars who have done groundbreaking work on the intersection of privacy and speech online.

Yesterday, the Fourth Circuit held that Wikimedia does, indeed, have standing to challenge Upstream surveillance. The panel explained “that Clapper’s analysis of speculative injury does not control this case, since the central allegations here are not speculative.” In other words, Wikimedia can show a strong-enough likelihood that it has been surveilled, and consequently, the challenge to NSA surveillance can move forward.

This is a big deal. In Clapper v. Amnesty International back in 2013, the Supreme Court held that plaintiffs could not challenge 702 national security surveillance because they could not show that a surveillance program even existed. Because that case relied on a “highly attenuated chain of possibilities,” and plaintiffs could not show that actual surveillance was “certainly impending,” they could not move forward with their challenge. The Fourth Circuit yesterday held that the Snowden (and other) disclosures about national security surveillance have changed the picture for plaintiffs like Wikimedia, allowing challenges under both the Fourth and First Amendments.

First Amendment challenges to surveillance have faced an uphill battle. The late Justice Scalia was particularly skeptical of intangible injuries, and waged a campaign against recognition of the chilling effect in both anonymous speech jurisprudence and challenges to surveillance programs. This Fourth Circuit decision is notable, by contrast, in its receptiveness to First Amendment surveillance harms.

On First Amendment standing to challenge surveillance, the panel pulled two cites/quotes from our brief. First, the panel explained that “[i]n First Amendment cases, the injury-in-fact element is commonly satisfied by a sufficient showing of self-censorship, which occurs when a claimant is chilled from exercising his right to free expression.” (Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013)). In other words, if you’re actually subject to surveillance, you can assert a First Amendment claim based on the resulting chilling of your speech. Second, the panel noted, as our brief both centrally argued and quoted, that “[t]he leniency of First Amendment standing manifests itself most commonly in the doctrine’s first element: injury-in-fact.” (Id.) In other words, our law generally makes it easier to get First Amendment cases into court, because speech is central to the functioning of our democracy. Third, the panel acknowledged the relationship between privacy and freedom of association: “[w]hen the government collects appellants’ metadata, appellants’ members’ interests in keeping their associations and contacts private are implicated, and any potential ‘chilling effect’ is created at that point.” ACLU v. Clapper, 785 F.3d 787, 802 (2d Cir. 2015). As we argued, a chilling effect on association can also give rise to standing.

Thanks to all those who worked on and edited this brief. Thanks also to Ron Collins over at First Amendment News for both covering yesterday’s decision and highlighting our work as best lower court amicus in 2016. And a huge thanks to the wonderful attorneys at the ACLU– in particular Patrick Toomey and Ashley Gorski– for their work on this and other important issues.