In Wikimedia Foundation v. NSA, No. 20-1191 (4th Cir. Sept. 16, 2021), a three-way split panel holds 2-1 that Wikimedia has Article III standing to challenge National Security Agency’s (NSA) domestic surveillance of transmission lines, but a different 2-1 majority holds that the case fails because of the “state secret doctrine.” The Fourth Circuit had previously reviewed this case on dismissal of the complaint, vacating and remanding for further factual development. Wikimedia Found. v. Nat’l Sec. Agency/Cent. Sec. Serv., 857 F.3d 193 (4th Cir. 2017).

The case seeks to enjoin the NSA’s Upstream surveillance program under Section 702 of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1881a. “As its name suggests, Upstream surveillance involves the NSA’s collection of communications on the Internet backbone, ‘upstream’ of the Internet user, by compelling the assistance of telecommunications-service providers . . . . The Internet backbone consists of domestic ‘high-speed, ultra-high bandwidth data-transmission lines’ and the relatively limited number of submarine and terrestrial circuits that carry Internet communications into and out of the United States . . . which are often referred to as ‘chokepoint’ cables.”

Private parties often do not have Article III standing, for lack of a concrete and particularized, to challenge generalized law-enforcement programs. But “[i]n what we called the ‘Wikimedia Allegation,’ Wikimedia claimed it had standing because (1) its communications travel across every international Internet link; (2) the NSA conducts Upstream surveillance on at least one such link; and (3) ‘in order for the NSA to reliably obtain communications to, from, or about its targets in the way it has described, the government must be copying and reviewing all the international text-based communications that travel across a given link.” The first panel took this allegation to mean that Wikimedia plausibly alleged that the NSA intercepted at least some of the website’s communications.

 “On remand, the district court ordered jurisdictional discovery. But when Wikimedia sought evidence related to Upstream, the NSA invoked the state secrets privilege.” That privilege allows dismissal of a case to “prevent the disclosure of information in a judicial proceeding if ‘there is a reasonable danger’ that such disclosure ‘will expose [matters of state] which, in the interest of national security, should not be divulged.’” NSA filed the declaration of Daniel Coats, then Director of National Intelligence, who attested that the disclosures requested by Wikimedia “reasonably could be expected to cause serious damage, and in many cases exceptionally grave damage, to the national security of the United States.”

Wikimedia argued that the state secret doctrine had been superseded by FISA’s discovery procedures, in 50 U.S.C. § 1806(f), which permits an “aggrieved person” who is the target of electronic surveillance to request, under certain circumstances, that the court conduct an in camera and ex parte review of “the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” But the district court held that the doctrine survived enactment of the FISA discovery procedures, and applied here to prevent court incursion on the NSA’s surveillance methods.

Ultimately, the district court dismissed on summary judgment, holding that Wikimedia both failed to prove the third prong of its standing argument (that it was subject to surveillance) and, alternatively, that the state secret doctrine blocked discovery into jurisdiction and mandated dismissal of the case.

The Fourth Circuit affirms. The majority opinion by Judge Diaz holds – contrary to the district court – that Wikimedia established Article III standing but agrees with the district court that the plaintiff could not proceed with its case because of the state secret doctrine.

Regarding standing, the majority (with Judge Motz joining this section), the majority finds that an NSA factual concession gives Wikimedia a toehold for proving the second prong of the Wikimedia Allegation. A FISC opinion allowed “that [the] NSA will acquire a wholly domestic ‘about’ communication if the transaction containing the communication is routed through an international Internet link being monitored by [the] NSA.” Wikimedia contended that this concession is “evidence that NSA is in fact monitoring a circuit carrying international communications.”

The government argued that this concession “conveys only that if the NSA is monitoring such a link, the agency will acquire the communications traversing it. But the government’s strained construction ignores grammar. The consequence described in the independent clause (i.e., the NSA’s acquisition of a domestic communication) is tied to a conditional clause that turns on whether the transaction is on an international Internet link that the NSA is monitoring—not whether the NSA is monitoring such a link at all. The sentence is thus premised on the NSA surveilling at least one international Internet link, over which a transaction of interest may travel.”

On the third prong, the panel majority holds that “the best reading of the government’s concession is that the NSA ‘will acquire’ any single, unspecified domestic communication, so long as it’s traversing a monitored international Internet link. In the context of the ‘will acquire’ sentence then, the NSA’s surefire acquisition of ‘a’ domestic communication on a surveilled circuit is equivalent to its acquisition of ‘all’ such transactions.”

But with one panel majority having satisfied itself that there was Article III standing, a different panel majority (with Judge Rushing joining) holds that the case must be dismissed under the state secret doctrine. Principally, it rejects the argument – which was accepted in Fazaga v. FBI, 916 F.3d 1202 (9th Cir. 2019), amended on denial of reh’g en banc by 965 F.3d 1015 (9th Cir. 2020) [2010], cert. granted, 2021 WL 2301971 (June 7, 2021) – that FISA supplanted the state secret doctrine with a rule that regulates discovery and admissibility of sensitive security information. The panel majority doubts that Congress had anything quite so momentous in mind. “We note that every other subsection under § 1806 speaks to the government’s use of electronic surveillance evidence . . . . We think it unlikely that Congress stashed away an expansive right for litigants within a statute directed entirely toward the government’s use of information.”

Dissenting Judge Motz, the panel majority adds in a footnote, “chides us for (as she describes it) rushing to decide this issue in the face of the Supreme Court’s grant of certiorari in Fazaga. But this case was briefed and argued months before the Court decided to take Fazaga, and we have given it all due deliberation. Moreover, our superior Court is often informed by the views of the circuits. See, e.g., Hertz Corp. v. Friend, 559 U.S. 77, 92 (‘In an effort to find a single, more uniform interpretation of the statutory phrase, we have reviewed the Courts of Appeals’ divergent . . . interpretations.’). As we’ve done in the past, we respectfully offer our perspective on this ‘novel and difficult question’ (Dissent at 56) before the Court provides a definitive answer.”