AMICUS BRIEF: Should the NSA be immune to ALL legal challenges?

We have another strategic opportunity to file an amicus brief in a crucial case — Wikimedia v. NSA. It is being considered by the Fourth Circuit Court of Appeals.

We almost passed on this case because we (both staff and supporters) are overwhelmed. A lot has already happened in this young year. But we just couldn’t let this one go. We had to try. Wikimedia v. NSA builds on work into which DC Downsizers have already invested.

Yesterday, our sister organization, the Downsize DC Foundation, delivered this same message to its “Zero Aggression” subscribers. We, at, are, as usual, going to join in this case. The Foundation is able to offer tax-deductability in exchange for your contribution to this project, so we request that you give there, as spelled out in this message.

Will we able to fund this brief? Here is its strategic importance…

You may recall we filed our second brief in Jewel v. NSA last September. The issues here are remarkably similar

The Feds are hiding behind an alleged need for state secrecy. ANY discovery process would supposedly jeopardize national security. The district courts have played along, blocking all discovery. But…

If we can obtain a good decision in either of these cases, then…

  • Other district courts would be compelled to take notice of the precedent
  • It becomes very likely the issue of NSA domestic spying will be reviewed by the Supreme Court

Please understand…

It’s very difficult to win cases where The State claims a need for secrecy because of supposed national security concerns. So we need to seize every opportunity to cause a Supreme Court review of NSA domestic spying. The Wikimedia case gives us just another such an opportunity, to go along with our efforts in Jewel. Here’s the issue…

Should the NSA be able to grab all of your Internet communications so it can search them for keywords (called “task selectors” in the jargon of the NSA)?

A Maryland district court judge dismissed the Wikimedia (the parent company of Wikipedia) case early on, arguing that the plaintiffs couldn’t prove that the NSA is actually seizing all Internet traffic. After all, the program is secret, so how could you prove it? But the Judge’s ruling contradicted itself when it says…

…the NSA “has no ability to examine or otherwise make use of this larger body of communications, except to promptly determine whether any of them contain a tasked selector.”

This is a clear admission by the Judge that the NSA is…

  • Grabbing large amounts of Internet traffic
  • Searching that data for keywords (task selectors)

Our brief will focus on this point. The Maryland district court judge acts as if nothing happens until the NSA decides what to do with the records that it searches — as if that initial, cursory search of all communications for certain key keywords is neither a seizure nor a search. But in fact, it is both.

Your internet communications are first seized, and then they’re searched. Both things happen without a warrant.

By way of analogy, the judge’s holding is essentially that no Fourth Amendment violation occurs if the police only arrest the drunk drivers — even if in order to find the drunk drivers, the police are both stopping and searching every car on the road.

The Wikimedia plaintiffs have barely mentioned this argument in their brief to the Court of Appeals. So our proposed brief will focus on and exploit this gaping hole in the district court’s ruling.

We will also renew our argument that Fourth Amendment cases should be judged based on property rights. The unspoken assumption of the Maryland court’s opinion is that no rights violation is occurring because the NSA is simple having a lifeless computer search for specific words. But…

Imagine if the Post Office was opening all of your mail and running it through scanners to look for keywords? Would you feel that no wrong was being done? In fact, the Maryland court’s argument is wrong in several ways…

  1. Any of your Internet communications that contain the “offending” words will be further examined by an NSA employee, without a warrant
  2. Bulk seizures of Internet communications treated one way today, could be used another way tomorrow
  3. Previous Supreme Court rulings have made it clear that even a small trespass occurs whenever the government unlawfully interferes with a person’s property for the purpose of obtaining information

Can you make a contribution to help fund the writing and submission of this brief?

Contributions to the Downsize DC Foundation are TAX-DEDUCTIBLE.

The Foundation uses the secure online form of the Zero Aggression Project. There are a number of giving options provided there, including a way to mail a check, donate by credit card (Visa, Mastercard, American Express, and Discover), PayPal, Bitcoin, and appreciated securities. Both individual and corporate contributions are welcome.

Remember, we almost didn’t take this case, and I bet you’re wondering why.

Honestly, we cannot afford it. We have to spread out appeals over time. People who gave last week, usually gave what they can for the month — if not two. We’ve already sent two appeals for funding other briefs (and actually delivered three of them). We’re on a torrid pace — a pace we cannot cover, unless we get new supporters. If you haven’t given recently or ever, it’s especially important that you start now.

In fact, we’ll need a healthy combination of new or increased, monthly, credit card pledgers and new one-time contributions of varying sizes. Every contribution matters. Please do not think you’re doing too little.

But I would be remiss if I didn’t also point out that, in order for us to fund this brief, we need donors who can give $500, $1,000, and even more. In fact, if one person reading this decided to give $2,500, I am extremely confident we’d fully fund this effort.

Thank you for your consideration and support,

Jim Babka & Perry Willis

Downsize DC Foundation