We are Jameel Jaffer of the ACLU, Wikipedia founder Jimmy Wales, and Lila Tretikov, executive director of the Wikimedia Foundation - and we are suing the NSA over its mass surveillance of the international communications of millions of innocent pe...

Hi everyone,

Thanks for doing this. What can we, as a community, an internet, and as non-lawyers, be doing to help raise awareness of this?

Here's a partial answer to this question for the Americans out there: a few provisions of the USA Patriot Act are scheduled to sunset in June. Congress has to consider, between now and then, whether to reauthorize the provisions, amend them, or let them expire. You should make sure your representatives in Congress know that you want some commonsense limits to be imposed on the NSA's surveillance activities.

What is the minimum acceptable outcome for your lawsuit?

Just to add a couple more points, I think there's broad agreement that the government has a legitimate interest in monitoring the communications of suspected terrorists. This kind of dragnet surveillance, though, constitutes a gross invasion of the privacy of innocent people, and it will inevitably have a chilling effect on the freedoms of speech and inquiry. (There is some evidence that the NSA’s surveillance activities are already having this effect.) We don’t think the NSA should be looking over innocent people’s shoulders when they’re surfing the web. I should emphasize that the NSA’s practice is to retain communications that include “foreign-intelligence information,” a term that is defined so broadly as to include, for example, any information relating to the foreign affairs of the United States. No one should be under the misimpression that the NSA is interested in collecting information about terrorism and nothing else. Former NSA director Michael Hayden has been forthcoming about this. He said recently: “NSA doesn't just listen to bad people. NSA listens to interesting people. People who are communicating information.” We would like the NSA's surveillance activities to be more narrowly focused on individuals who are actually and reasonably thought to present threats.

I gather the public at large is vaguely upset, and don't likely realize the full implications of what's been going on.
How would you explain this issue to a neighbor who isn't an internet denizen?

Would you like your phone to be tapped without a warrant? Today, your internet connection can be.

Also, perhaps refer them to this Human Rights Watch / ACLU report, which documents the way that government surveillance is already inhibiting journalism that's crucial to open societies. http://www.hrw.org/reports/2014/07/28/liberty-monitor-all-0

From your article it looks like you have to overcome standing issues in order to get to the substantive issues. What's the injury to wikimedia and how do you show it?

I'm really happy to see wikimedia standing up to various governments using legal tools. Is there anything to be done or that you plan on rolling out on the tech side to protect the identity of wikipedia editors in other countries?

I provided a more technical answer to the "standing" question in response to another questioner. Cutting and pasting:

This is a good question. As you probably know, in Clapper v. Amnesty, the U.S. Supreme Court held, in a 5-4 vote, that the ACLU’s plaintiffs in that case lacked standing to challenge the constitutionality of the 2008 FISA Amendments Act—the same statute the government now invokes to justify the NSA’s “upstream” surveillance. The Court reasoned that the plaintiffs didn’t have the right to challenge the statute because they couldn’t show a sufficient likelihood that their communications were being monitored. The plaintiffs couldn’t make that showing, of course, because the government refused to disclose, even in the most general terms, how the statute was being used.

I think Clapper v. Amnesty was wrongly decided (I argued the case, so this shouldn’t be surprising), but more importantly, I don’t think Clapper v. Amnesty forecloses our new case. I say this for a few reasons. First, thanks to Snowden, we know much more about the government’s surveillance practices now than we did when Clapper v. Amnesty was argued and decided. (It was argued in the fall of 2012 and decided in February 2013, just a few months before the first Snowden revelations began to appear in the Guardian and Washington Post.) Second, the government itself has now acknowledged and confirmed many of the key facts about the NSA’s upstream surveillance. Third, the volume of Wikimedia’s communications is so incredibly large that there is simply no way the government could conduct upstream surveillance without sweeping up a substantial number of those communications.

I’m sure the government will argue that Clapper v. Amnesty forecloses this suit, but I don’t think this will be a very compelling argument.

If your lawsuit is successful, do you believe the NSA will actually comply with the verdict? Is the NSA still under the control of the US government? Also, since the NSA has potentially infected the very hardware of the internet's infrastructure, how can we verify if they are being compliant?

I don't think the NSA would refuse to comply. I do think it would exploit ambiguities in any court order. Which is part of why we're pressing Congress to require the NSA to be more transparent about its activities and to ensure that the NSA's activities are subject to meaningful judicial review on an ongoing basis.

What is different about this suit against the NSA's surveillance than the other lawsuits that have failed?

This is a good question. As you probably know, in Clapper v. Amnesty, the U.S. Supreme Court held, in a 5-4 vote, that the ACLU’s plaintiffs in that case lacked standing to challenge the constitutionality of the 2008 FISA Amendments Act—the same statute the government now invokes to justify the NSA’s “upstream” surveillance. The Court reasoned that the plaintiffs didn’t have the right to challenge the statute because they couldn’t show a sufficient likelihood that their communications were being monitored. The plaintiffs couldn’t make that showing, of course, because the government refused to disclose, even in the most general terms, how the statute was being used.

I think Clapper v. Amnesty was wrongly decided (I argued the case, so this shouldn’t be surprising), but more importantly, I don’t think Clapper v. Amnesty forecloses our new case. I say this for a few reasons. First, thanks to Snowden, we know much more about the government’s surveillance practices now than we did when Clapper v. Amnesty was argued and decided. (It was argued in the fall of 2012 and decided in February 2013, just a few months before the first Snowden revelations began to appear in the Guardian and Washington Post.) Second, the government itself has now acknowledged and confirmed many of the key facts about the NSA’s upstream surveillance. Third, the volume of Wikimedia’s communications is so incredibly large that there is simply no way the government could conduct upstream surveillance without sweeping up a substantial number of those communications.

I’m sure the government will argue that Clapper v. Amnesty forecloses this suit, but I don’t think this will be a very compelling argument.

Let's suppose this lawsuit is successful, and the NSA is legally barred from collecting upstream data. What about controlling/regulating the same sort of data collection by corporate entities, and other governments (e.g., China)? Does a successful outcome here protect privacy only with respect to the US government, or would it affect of influence privacy rights in other contexts?

This suit is about surveillance by the US government. The ACLU is involved in other efforts relating to surveillance by other governments--see, e.g., this case against the GCHQ in the UK: http://www.theguardian.com/uk-news/2014/dec/05/uk-mass-surveillance-laws-human-rights-tribunal-gchq. But the truth is that a more global solution to the problem of mass surveillance will require diplomacy, not just lawsuits.

Why haven't you made any claim that non-Americans have privacy rights? Do you think Verdugo-Urquidez is incontestable, and a binding precedent for the rest of the world's privacy rights on the Internet? If you win, and establish stronger but unequal rights only for Americans, that will further damage international human rights law based on equality without regard to national origin.

We’re deeply concerned about the government’s indiscriminate surveillance of non-U.S. persons’ communications, and we’ve pressed this issue in other forums, including the Privacy & Civil Liberties Oversight Board, the Inter-American Commission, and the U.N. Human Rights Committee. Wikimedia and many of the other plaintiffs in this lawsuit share our concerns. We’ve focused on Americans’ international communications in this suit only because American law limits (unreasonably and unjustly, in our view) the kinds of claims we can bring on behalf of non-U.S. persons outside the United States. But we’re hopeful that any new safeguards that the government is forced to adopt (or adopts of its own accord) as a result of this suit will have the effect of protecting everyone, not just Americans.

As an ACLU member passionate about privacy I thank you for fighting the good fight.

My question: Do you have additional evidence outside of the PowerPoint slide to establish standing or do you believe this alone is sufficient?

Someone else asked a very similar question, and I just answered it above. (And thanks for your support!)

I've seen a lot of stuff about "talk to laymen about why internet privacy matters". While I completely agree that privacy is important, trying to explain why that is to someone can be difficult. Could you list off a few reasons/example that would be easy to rattle off to someone and make sure they get the idea?

Thanks for doing this AMA, keep up the great work, and best of luck in your lawsuit!

It's a really important question. I find this analogy that Bruce Schneier gave at SXSW a couple of days ago useful: Would you want a cop car driving next to you, watching you, at all times even if you weren't doing anything wrong? Would you want to remove all of the curtains or shutters in your home? The persistent monitoring of our communications by the government has the same effect, even if it seems less evident. There is too much information about innocent people in government databases - about their movements, whom they choose to talk to and associate with, and where they spend their time. This erodes the liberties we all take for granted. And I think someone already linked to this TED talk on the issue by Glenn Greenwald. I highly recommend it: http://www.ted.com/talks/glenn_greenwald_why_privacy_matters?language=en

1. Why aren't Mozilla and the EFF involved in this? Were they not interested, or were they not even approached? It seems like something Mozilla and EFF would jump on.

2. How does this relate to the Wikimedia Foundation? I don't see anything at all relating to privacy in the WMF mission, so I'm confused why they're pursuing this lawsuit.

EFF has been very supportive (and in fact EFF has filed its own challenge to upstream surveillance out in California). I hope and expect that EFF will eventually appear as an amicus in our case. And we will certainly reach out to tech companies, too, for amicus support.

Hi guys,

Whenever I try to convince people around me that the surveillance going on is serious, a lot of responses I get are "I am okay with what the NSA does to protect us." Do you have any thought provoking responses I can parrot back?

For more than a decade, the NSA told the Foreign Intelligence Surveillance Court that its call-records program was not just effective but "the only effective means" of monitoring the calls of suspected terrorists. After the Snowden revelations, the Privacy and Civil Liberties Oversight Board and the President's Review Group both concluded that the program had never been pivotal in any investigation. And the President himself acknowledged that the NSA could track terrorists' calls without collecting everyone's call records. More: http://justsecurity.org/6159/privacy-board-debunks-justification/

As someone who likes net neutrality but is wary of government regulation, I have mixed feelings about the FCC's decision to reclassify the Internet as a public utility. Could this decision have an impact on how Internet usage data is surveilled and shared with spy agencies?

This issue requires a longer answer than I can provide here. But here's a recent blog post from one of my colleagues on this topic: https://www.aclu.org/blog/technology-and-liberty-free-speech/after-decades-fight-net-neutrality-huge-win-free-speech-onli

I would like to know why the ACLU is not partnering with the Electronic Frontier Foundation (EFF) for this lawsuit?

Has the ACLU reached out to the EFF at all? Has the EFF reached out to the ACLU? I do not understand why there is no partnership between the ACLU and EFF. You would think ACLU and EFF combining resources and experiences would be necessary for such an unprecedented lawsuit.

-Long Time EFF Supporter

EFF is a super organization and we work together all the time. For example, we're working together on Smith v. Obama, a challenge to the NSA's dragnet call-records program (see https://www.aclu.org/national-security/smith-v-obama-challenge-nsa-mass-call-tracking-program). We're also working together in Klayman v. Obama (see https://www.eff.org/document/eff-and-aclu-amicus-brief-klayman).

I think this issue is one of the most important modern day issues that we face. My question is, how do we convince our friends, family, and neighbors of the importance?

If I even bring up the ACLU doing something in my family they automatically support the opposite of it "because those commie ACLU bastards."

Two more serious points. First, the ACLU is a nonpartisan organization. We defend the Bill of Rights and the Constitution. In the fight against mass surveillance of innocent Americans, many of our most committed allies are conservative or libertarian. Second, privacy is something everyone should care about. Doesn't matter what your politics are. If you want a society in which dissent is possible, you need to defend privacy.

Wait, there are people who don't like the ACLU?

How can I as an ACLU member further help you in this cause?

There are a lot of things you can do. For starters, we're planning a big fight against the reauthorization of Section 215 of the Patriot Act, which the government uses to conduct bulk surveillance of Americans' phone records. You can make clear to your representatives that you expect them to oppose reauthorization. Here's a petition you can sign: https://www.aclu.org/secure/stopnsa. Thanks for your support!

How long do you think the law suit will take until we will see some results? Are we talking month, years?

I expect we'll be filing legal briefs over the next few months and that the district court in Maryland will hear oral argument in the fall.

How likely is this to succeed, and on a note I think is highly related, how much are you doing to grow press attention for this?

It's a hard case. But we wouldn't have brought it if we didn't think we had a real chance of convincing the courts to rule our way. I think the Snowden revelations have led many people--including many judges--to realize for the first time that government surveillance has become a real threat not just to individual privacy but to the freedoms of speech, association, and inquiry as well.

Thank you all for doing this, what do you believe will be the biggest barrier in suing the government? What do you believe is the most corrosive element that exists within politics today, and how do we root it out?

Standing and state secrets have been hurdles in many other surveillance suits. As I explained in response to other questions, though, we are optimistic that we will be able to overcome those hurdles here. There is a lot more information in the public domain now than there was when those other surveillance cases were litigated.

This is only partially related to privacy, but you said AMA, so here we go. What is your opinion on the IRS targeting conservative, mostly TEA Party, groups? Have you been contacted to help represent any of them? Would you consider representing them?

We issued a strong statement when that story broke, because we thought the targeting of tea party groups was clearly unconstitutional. Here's an oped we published about it: http://www.cnn.com/2013/05/12/opinion/macleod-ball-irs-tea-party/