WIKIMEDIA FOUNDATION v. NAT. SEC. AGENCY

No. 15-2560.

857 F.3d 193 (2017)

WIKIMEDIA FOUNDATION; National Association of Criminal Defense Attorneys; Human Rights Watch; Pen American Center; Global Fund for Women; The Nation Magazine; The Rutherford Institute; Washington Office on Latin America; Amnesty International USA, Plaintiffs-Appellants, v. NATIONAL SECURITY AGENCY/Central Security Service; Admiral Michael S. Rogers, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service; Office of the Director of National Intelligence; Daniel R. Coats, in his official capacity as Director of National Intelligence; Department of Justice; Jefferson B. Sessions III, in his official capacity as Attorney General of the United States, Defendants-Appellees. Computer Scientists and Technologists; Reporters Committee for Freedom of the Press; The Thomas Jefferson Center for the Protection of Free Expression; American Society of News Editors; Association of Alternative Newsmedia; First Amendment Coalition; First Look Media, Inc.; Free Press; Freedom of the Press Foundation; Gatehouse Media; International Documentary Association; Investigative Reporters and Editors, Incorporated; Investigative Reporting Workshop at American University; The Media Consortium; National Press Photographers Association; North Jersey Media Group, Incorporated; Online News Association; Radio Television Digital News Association; Reporters Without Borders; Tully Center for Free Speech; United States Justice Foundation; Free Speech Defense and Education Fund; Free Speech Coalition; Western Journalism Center; Gun Owners of America, Inc.; Gun Owners Foundation; Downsize DC Foundation; DownsizeDC.org; Conservative Legal Defense and Education Fund; Institute on the Constitution; Policy Analysis Center; Law Professors; Electronic Frontier Foundation; First Amendment Legal Scholars, Amici Supporting Appellants.

United States Court of Appeals, Fourth Circuit.

Decided: May 23, 2017.


Attorney(s) appearing for the Case

ARGUED: Patrick Christopher Toomey , AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellants. Catherine H. Dorsey , UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Jameel Jaffer , Alexander Abdo , Ashley Gorski , AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Deborah A. Jeon , David R. Rocah , AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND, Baltimore, Maryland; Charles S. Sims , David A. Munkittrick , PROSKAUER ROSE LLP, New York, New York, for Appellants. Benjamin C. Mizer , Principal Deputy Assistant Attorney General, Douglas N. Letter , H. Thomas Byron III , Michael Shih , Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Rod J. Rosenstein , United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellees. Jennifer Stisa Granick , Director of Civil Liberties, Center for Internet and Society, STANFORD LAW SCHOOL, Stanford, California; Matthew J. Craig , SHAPIRO ARATO LLP, New York, New York, for Amicus Computer Scientists and Technologists. Margot E. Kaminski , Assistant Professor of Law, Moritz College of Law, THE OHIO STATE UNIVERSITY, Columbus, Ohio; Chelsea J. Crawford , Joshua R. Treem , BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Amicus First Amendment Legal Scholars. J. Joshua Wheeler , Thomas Jefferson Center for the Protection of Free Expression and First Amendment Clinic, THE UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia; Bruce D. Brown , Gregg P. Leslie , Hannah Bloch-Wehba , REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Washington, D.C.; Peter Scheer , FIRST AMENDMENT COALITION, San Rafael, California; Lynn Oberlander , General Counsel, Media Operations, FIRST LOOK MEDIA, INC., New York, New York; Matthew F. Wood , FREE PRESS, Washington, D.C.; Polly Grunfeld Sack , SVP, General Counsel and Secretary, GATEHOUSE MEDIA, LLC, Pittsford, New York; Jennifer A. Borg , General Counsel, NORTH JERSEY MEDIA GROUP, INCORPORATED, Woodland Park, New Jersey, for Amici Reporters Committee for Freedom of the Press, The Thomas Jefferson Center for the Protection of Free Expression, American Society of News Editors, Association of Alternative Newsmedia, First Amendment Coalition, First Look Media, Inc., Free Press, Freedom of the Press Foundation, Gatehouse Media, International Documentary Association, Investigative Reporters and Editors, Incorporated, Investigative Reporting Workshop at American University, The Media Consortium, National Press Photographers Association, North Jersey Media Group, Incorporated, Online News Association, Radio Television Digital News Association, Reporters Without Borders, and Tully Center for Free Speech. Kevin M. Goldberg , FLETCHER, HEALD & HILDRETH, PLC, Arlington, Virginia, for Amici American Society of News Editors and Association of Alternative Newsmedia. Marcia Hofmann , ZEITGEIST LAW PC, San Francisco, California, for Amicus Freedom of the Press Foundation. Mickey H. Osterreicher , Buffalo, New York, for Amicus National Press Photographers Association. Laura R. Handman , Alison Schary , Washington, D.C., Thomas R. Burke , DAVIS WRIGHT TREMAINE LLP, San Francisco, California, for Amicus Online News Association. Kathleen A. Kirby , WILEY REIN LLP, Washington, D.C., for Amicus Radio Television Digital News Association. Michael Connelly , UNITED STATES JUSTICE FOUNDATION, Ramona, California, for Amicus United States Justice Foundation. Robert J. Olson , Herbert W. Titus , William J. Olson , Jeremiah L. Morgan , WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici United States Justice Foundation, Free Speech Defense and Education Fund, Free Speech Coalition, Western Journalism Center, Gun Owners of America, Inc., Gun Owners Foundation, Downsize DC Foundation, DownsizeDC.org, Conservative Legal Defense and Education Fund, Institute on the Constitution, and Policy Analysis Center. Adam Steinman , Professor of Law, UNIVERSITY OF ALABAMA SCHOOL OF LAW, Tuscaloosa, Alabama, for Amicus Law Professors. Sophia Cope , Mark Rumold , Andrew Crocker , Jaime Williams , ELECTRONIC FRONTIER FOUNDATION, San Francisco, California, for Amicus Electronic Frontier Foundation.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Diaz wrote the opinion, in which Judge Motz joined and in which Senior Judge Davis joined in part. Senior Judge Davis wrote a separate opinion dissenting in part.


The Wikimedia Foundation and eight other organizations appeal the dismissal of their complaint challenging Upstream surveillance, an electronic surveillance program operated by the National Security Agency (the "NSA"). The district court, relying on the discussion of speculative injury from Clapper v. Amnesty International...

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