This week, the Wikimedia Foundation, sued the NSA over surveillance efforts taking place on US soil, specifically the “upstream” collection of Internet data in an effort to gather intelligence on foreign threats to the US.
On Tuesday at Lawfare, Herb Lin posed a question about Wikimedia’s lawsuit: if the Constitution affords Americans greater protections than foreigners, isn’t Wikimedia’s claim seeking equal protection for foreigners logically flawed?
My reading of the complaint is that the plaintiffs in the Wikimedia case aren’t actually making any claims about foreigners’ constitutional rights. (Whether they would like to see greater or equal protections for non-US persons as a policy matter is a different question.) Rather, the complaint rests on the argument that the nature of how the upstream collection program is conducted violates the Constitution. Wikimedia’s lawsuit focuses on the program’s impact on American organizations and their data that is necessarily scooped up in the process.
Section 702 of the FISA Amendments Act allows the collection of foreign intelligence information when the government “reasonably believe[s]” the targeted individual is a non-US person located abroad. For clarity’s sake and because legal terms often have different colloquial meanings, it is important to note that the NSA and other government agencies do not consider data to be “collected” until the data has been processed to pull out only information encompassed by one of the government’s “selectors.” But, as part of the upstream program, internet traffic that passes through the US is copied or otherwise assembled wholesale, necessarily implicating a tremendous amount of wholly domestic data.
The government discusses the upstream program from the perspective of who or what is targeted in the data collection (i.e., the target is reasonably believed to be a foreigner abroad). The op-ed Herb was specifically responding to mentions the harm American mass surveillance can do to foreigners, but the lawsuit comes at the issue from the other direction.
All nine plaintiffs are themselves American organizations. And, as is made clear in paragraphs 48 to 118 of the complaint, they are concerned that their information is being unconstitutionally seized as part of the upstream program, regardless of whether any “target” of the collection is abroad. And they are concerned that such collection occurs within the United States, where the Constitution most strongly applies.
So, it seems to me that this case has little to do with the constitutional protections available to non-US persons abroad. It’s about protecting the rights of American organizations, regardless of any side effects those protections might have for foreigners.