Can the U.S. government legally monitor private communications? If so, given the U.S.'s significant protection of privacy rights, what government cannot?
DOI | http://doi.org/10.1002/pa.1659 |
Date | 01 August 2017 |
Author | Kevin A. Diehl |
Published date | 01 August 2017 |
COMMENTARY
Can the U.S. government legally monitor private
communications? If so, given the U.S.'s significant protection of
privacy rights, what government cannot?
Kevin A. Diehl
Department of Accounting and Finance,
Western Illinois University QC, Moline, Illinois,
USA
Correspondence
Professor Kevin A. Diehl (tenured professor of
tax), Department of Accounting and Finance,
Western Illinois University QC, 3300 River
Drive, Moline, IL 61265, USA.
Email: ka‐diehl@wiu.edu
Wikimedia Foundation v. NSA/CSS is the most important case ever regarding whether a govern-
ment can monitor private communications. This case's discussion could not be any more timely
for public affairs purposes. Given continuing terrorist attacks and concomitant calls for private
industries, such as Wikimedia Foundation, to do more to stop the spread of violence and rhe-
toric on the Internet, there has never been a more important time to consider what limits should
be placed on government's access to personal data in the quest to prevent terrorism. Here, the
district court referred to the plaintiffs' injuries from NSA upstream surveillance as speculative,
denying them Article III standing. The Fourth Circuit reinstated Wikimedia Foundation as a
plaintiff, finding sufficient allegations for it to survive a facial challenge to Article III standing
based on the Wikimedia Allegation. However, the other plaintiffs, relying on the Dragnet
Allegation, were properly dismissed based on lacking standing. Until more details of upstream
surveillance become public, suing under a dragnet theory should prove difficult. In fact, lobbying
the legislative and executive branches to enact changes could be more effective and efficient
than relying on the courts.
1|INTRODUCTION
Wikimedia Foundation v. NSA/CSS, No. 15‐2560, 2017 U.S. App. LEXIS
8957 (4th Cir. 2017), is the most important case ever regarding
whether a government can monitor private communications. This
case's discussion could not be any more timely for public affairs pur-
poses. Given continuing terrorist attacks and concomitant calls for pri-
vate industries, such as Wikimedia Foundation, to do more to stop the
spread of violence and rhetoric on the Internet, there has never been a
more important time to consider what limits should be placed on gov-
ernment's access to personal data in the quest to prevent terrorism.
As additional evidence of this case's importance, one must look no
farther than the illustrious plaintiffs, amici, plaintiffs' attorney, and
defendants. The plaintiffs joining Wikimedia include the following:
Amnesty International, Global Fund, Human Rights Watch, and
National Association of Criminal Defense Attorneys to name a few.
In addition, the amici, supporting the plaintiffs with legal briefs, are
equally noteworthy: American Society of News Editors, First Amend-
ment Coalition, Freedom of the Press Foundation, and theThomas Jef-
ferson Center for the Protection of Free Expression. Furthermore, the
lead plaintiffs' attorney is the top American Civil Liberties Union
(ACLU) litigator. Finally, the defendants constitute the most powerful
intelligence officials: Director of the NSA and Chief of the CSS Admiral
Rogers, Director of National Intelligence Coats, and Attorney General
Sessions.
1.1 |Procedural background
The Fourth Circuit considered the case on appeal from the U.S. District
Court for the District of Maryland. The district court referred to the
plaintiffs' injuries as speculative, denying them Article III standing. It
relied on Clapper v. Amnesty International USA.
The Fourth Circuit believed Clapper to be inapposite as the allega-
tions were not speculative. Wikimedia Foundation was reinstated as a
plaintiff as it had sufficient allegations to survive a facial challenge to
Article III standing. The other plaintiffs were properly dismissed based
on lacking standing. The so‐called Wikimedia Allegation was sustained,
but the so‐called Dragnet Allegation was not.
Judge Diaz wrote the opinion, in which Judge Motz completely
joined and Senior Judge Davis partially joined. Senior Judge Davis
wrote a separate dissenting opinion. The dissenting opinion noted that
all plaintiffs should be reinstated because proving the Wikimedia Alle-
gation also would prove the Dragnet Allegation.
DOI: 10.1002/pa.1659
J Public Affairs. 2017;17:e1659.
https://doi.org/10.1002/pa.1659
Copyright © 2017 John Wiley & Sons, Ltd.wileyonlinelibrary.com/journal/pa 1of4
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