This lawsuit challenges the upstream data collection program in which “the NSA … seize[s] and search[es] the internet communications of U.S. citizens and residents en masse as those communications travel across the internet ‘backbone’’ in the United States.” Complt., para. 40. The plaintiffs, Wikimedia Foundation, The National Association of Criminal Defense Lawyers, Human Rights Watch, Amnesty International USA, PEN American Center, Global Fund for Women, The Nation Magazine, The Rutherford Institute, and The Washington Office on Latin America, seek a declaration that the upstream program violates Article III of the Constitution and the First and Fourth Amendments, and exceeds the authorization of warrantless surveillance in the FISA Amendments Act (“FAA”), encoded as Sec. 702 of FISA, thereby also violating 5 U.S.C. Sec. 706.
Crucial to avoiding the denial of standing that defeated the challenge to Sec. 702 in Clapper v. Amnesty International , the plaintiffs emphasize the “about” component of the Upstream program, alleging that the program “is not limited to communications sent or received by the NSA’s targets. … The NSA systematically examines the full content of substantially all international text-based communications (and some domestic ones) for references to its search terms. In other words, the NSA copies and reviews the communications of millions of innocent people to determine whether they are discussing or reading anything containing the NSA’s search terms.” Id. at para. 44.
Also crucial to establishing standing, the Complaint exhibits the NSA’s interest in lead plaintiff Wikimedia’s communications by including a copy of a slide leaked by Snowden that “asks, ‘Why are we interested in HTTP?” It then answers its own question: ‘Because nearly everything a typical user does on the internet uses HTTP.’ This statement is surrounded by the logos of major internet companies and websites, including Facebook, Yahoo, Twitter, CNN.com, and Wikipedia.” Id. at para. 73.