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No. 15-2560

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_________________________
WIKIMEDIA FOUNDATION, et al.,
Plaintiffs–Appellants,
v.
NATIONAL SECURITY AGENCY, et al.,
Defendants–Appellees.

On Appeal from the United States District Court
for the District of Maryland
Baltimore Division

REPLY BRIEF FOR PLAINTIFFS–APPELLANTS
Patrick Toomey
Jameel Jaffer
Alexander Abdo
Ashley Gorski
Brett Max Kaufman
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
Phone: (212) 549-2500
ptoomey@aclu.org
Counsel for Plaintiffs–Appellants
(additional counsel on reverse)

Deborah A. Jeon
David R. Rocah
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND
3600 Clipper Mill Rd., #350
Baltimore, MD 21211
Phone: (410) 889-8555
jeon@aclu-md.org

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Charles S. Sims
David A. Munkittrick
Proskauer Rose LLP
Eleven Times Square
New York, NY 10036
Phone: (212) 969-3000
csims@proskauer.com
Counsel for Plaintiffs–Appellants

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 3
I.

Plaintiffs have plausibly alleged the copying and review of their
communications ............................................................................................... 3
A.

The government challenges the plausibility of the complaint,
but it ignores the pleading standards .....................................................3

B.

Wikimedia has plausibly alleged the copying and review of its
communications.....................................................................................6

C.

Plaintiffs have plausibly alleged that the NSA is copying and
reviewing “substantially all” international text-based
communications, including their own .................................................13

D.

The government’s declarations must be disregarded ..........................16

II.

Amnesty does not control this case because Plaintiffs do not challenge
targeted surveillance ...................................................................................... 21

III.

The government’s copying and review of Plaintiffs’ communications
establish standing ........................................................................................... 24

IV.

Plaintiffs’ First Amendment injuries supply an independent basis for
standing .......................................................................................................... 28

CONCLUSION ........................................................................................................ 29

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TABLE OF AUTHORITIES
Cases
[Redacted],
No. [Redacted] (FISC Nov. 6, 2015)....................................................................23
[Redacted],
No. [Redacted], 2011 WL 10945618 (FISC Oct. 3, 2011) ......................... 6, 9, 20
ACLU v. Clapper,
785 F.3d 787 (2d Cir. 2015) ...................................................................... 6, 14, 24
Adams v. Bain,
697 F.2d 1213 (4th Cir. 1982) ................................................................. 17, 18, 19
Amidax Trading Grp. v. S.W.I.F.T. SCRL,
671 F.3d 140 (2d Cir. 2011) .................................................................................24
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .........................................................................................3, 18
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ...............................................................................................3
City of Los Angeles v. Patel,
135 S. Ct. 2443 (2015) .........................................................................................27
Clapper v. Amnesty Int’l USA,
133 S. Ct. 1138 (2013) ................................................................................. passim
Cooksey v. Futrell,
721 F.3d 226 (4th Cir. 2013) ................................................................................28
Enterline v. Pocono Med. Ctr.,
751 F. Supp. 2d 782 (M.D. Pa. 2008) ..................................................................28
Ex parte Jackson,
96 U.S. 727 (1877) ...............................................................................................25

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Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167 (2000) ...................................................................................... 16, 29
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,
484 U.S. 49 (1987) .................................................................................................5
Hearst v. Black,
87 F.2d 68 (D.C. Cir. 1936)..................................................................................25
Johnson v. Am. Towers, LLC,
781 F.3d 693 (4th Cir. 2015) ................................................................................13
Katz v. United States,
389 U.S. 347 (1967) .............................................................................................25
Kerns v. United States,
585 F.3d 187 (4th Cir. 2009) ................................................................... 17, 18, 19
Klayman v. Obama,
800 F.3d 559 (D.C. Cir. 2015) .............................................................................15
Kowalski v. Tesmer,
543 U.S. 125 (2004) .............................................................................................28
LeClair v. Hart,
800 F.2d 692 (7th Cir. 1986) ................................................................................25
Lucas v. S. Carolina Coastal Council,
505 U.S. 1003 (1992) .............................................................................................5
McLean v. United States,
566 F.3d 391 (4th Cir. 2009) ..................................................................................3
Minnesota v. Carter,
525 U.S. 83 (1998) ...............................................................................................24
Monsanto Co. v. Geertson Seed Farms,
561 U.S. 139 (2010) .............................................................................................16
Potomac Conf. of Seventh-Day Adventists v. Takoma Acad. Alumni Ass’n,
2 F. Supp. 3d 758 (D. Md. 2014) .........................................................................19

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Rakas v. Illinois,
439 U.S. 128 (1978) .............................................................................................24
SD3, L.L.C. v. Black & Decker, Inc.,
801 F.3d 412 (4th Cir. 2015) ................................................................................15
Susan B. Anthony List v. Driehaus,
134 S. Ct. 2334 (2014) ...........................................................................................5
Turkmen v. Hasty,
789 F.3d 218 (2d Cir. 2015) ...................................................................................8
United States ex rel. Vuyyuru v. Jadhav,
555 F.3d 337 (4th Cir. 2009) ................................................................................19
United States v. Crist,
627 F. Supp. 2d 575 (M.D. Pa. 2008) ..................................................................26
United States v. Lawson,
410 F.3d 735 (D.C. Cir. 2005) .............................................................................25
Weidman v. Exxon Mobil Corp.,
776 F.3d 214 (4th Cir. 2015) ................................................................................13
Wright v. North Carolina,
787 F.3d 256 (4th Cir. 2015) ..................................................................................4
Statutes
18 U.S.C. § 2510 ......................................................................................................27
18 U.S.C. § 2520 ......................................................................................................27
50 U.S.C. § 1801 ......................................................................................................27
50 U.S.C. § 1806 ......................................................................................................14
50 U.S.C. § 1810 ......................................................................................................27
50 U.S.C. § 1881e ....................................................................................................14

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Rules
Fed. R. Civ. P. 12(b)(1)............................................................................... 17, 18, 19
Fed. R. Civ. P. 56 .............................................................................................. 17, 19
Other Authorities
Charlie Savage, N.S.A. Said to Search Content of Messages
to and from U.S., N.Y. Times, Aug. 8, 2013 ........................................................15
David Kris & J. Douglas Wilson,
National Security Investigations and Prosecutions (2015) ..................................10
David Kris, Trends and Predictions in Foreign Intelligence Surveillance,
8 J. Nat’l Security L. & Pol’y (2016) ...................................................................12
Dep’t of Homeland Security, Privacy Impact Assessment for the Use
of Google Analytics (June 9, 2011) ......................................................................27
Jonathon Penney, Chilling Effects: Online Surveillance and
Wikipedia Use, 31 Berkeley Tech L.J. __ (forthcoming 2016) ...........................29
PCLOB, Report on the Surveillance Program Operated Pursuant to
Section 702 of FISA (2014) .......................................................................... passim
PCLOB, Transcript of Public Meeting (July 2, 2014) ...............................................8

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INTRODUCTION
Plaintiffs challenge a government surveillance program that is
unprecedented in its scope—a program that intrudes on the privacy of their internet
communications and impairs their expressive and associational rights. The
challenged surveillance, known as Upstream surveillance, involves the
suspicionless seizure and searching of Americans’ internet communications as they
enter and leave the United States. The government has acknowledged that it is
engaged in this surveillance and that the surveillance involves searching the
communications of individuals who are neither foreign-intelligence targets nor in
contact with those targets. As Plaintiffs have explained, what the government is
doing here is the digital equivalent of searching the contents of every letter passing
through major mail processing centers to identify those that mention certain
information of interest.
Plaintiffs have plausibly alleged that their communications are being seized
and searched in the course of this surveillance. First, Plaintiff Wikimedia has
plausibly alleged that the government is copying and reviewing at least some of its
trillion or more annual communications. Indeed, the allegation is more than
plausible because the government has acknowledged that it is conducting
Upstream surveillance on multiple major internet circuits, and as the Amended
Complaint makes clear: (1) Wikimedia communicates with hundreds of millions of
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people around the world, and those communications traverse every major internet
circuit entering or leaving the United States; and (2) as a technological matter,
Upstream surveillance requires that the NSA copy and review all international textbased communications transiting the circuits it is monitoring.
Separately, each of the Plaintiffs has plausibly alleged that the NSA is
copying and reviewing substantially all text-based communications entering and
leaving the United States. This conclusion follows necessarily from the
government’s own description of Upstream surveillance and from basic facts about
the routing of communications across the internet backbone.
The government attacks the plausibility of Plaintiffs’ detailed allegations,
but it reaches its desired result only by disregarding all three of the procedural
rules that apply on a motion like this one: the presumption of truth that attaches to
Plaintiffs’ factual allegations; the rule that all reasonable inferences are to be
drawn in Plaintiffs’ favor; and the rule that confines a plausibility challenge to the
face of the pleadings. Indeed, in the end, the government resorts to outside
declarations that the district court properly concluded must be disregarded at this
stage of the case.
Plaintiffs have more than plausibly alleged the copying and review of their
communications. Accordingly, this Court should reverse the district court’s

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dismissal of Plaintiffs’ Amended Complaint and remand the case for further
proceedings on the merits.
ARGUMENT
I.

Plaintiffs have plausibly alleged the copying and review of their
communications.
A.

The government challenges the plausibility of the complaint, but it
ignores the pleading standards.

The government urges the Court to apply a set of pleading standards that
bear no resemblance to those governing a motion to dismiss.
First, although the government acknowledges that the Court must accept
Plaintiffs’ factual allegations as true, Def. Br. 25 (citing Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)), in reality it asks the Court to do the opposite. It asks the Court to
reject as “speculation” a series of detailed allegations grounded in (1) the myriad
public disclosures concerning Upstream surveillance, and (2) provable facts about
how the internet works. But nothing in Iqbal—or in Amnesty, for that matter—
allows a court to dismiss as speculation the type of detailed, factual allegations that
Plaintiffs have presented here. Of course, on a motion to dismiss, a court may
disregard legal conclusions that are not supported by any facts. See Iqbal, 556 U.S.
at 678. However, well-pled factual allegations that serve as the building blocks of a
complaint must be credited as true. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555-57 (2007); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009)
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(refusing to “countenance . . . dismissals based on a judge’s disbelief of a
complaint’s factual allegations”). In addition, in assessing whether a plaintiff’s
well-pled allegations together state a plausible claim on the face of the complaint, a
court must draw all reasonable inferences in the plaintiff’s favor. See Wright v.
North Carolina, 787 F.3d 256, 263, 265 (4th Cir. 2015).1
Here, the government’s insistence that Plaintiffs are simply speculating—
when they describe the manner in which communications are routed across the
internet and the scope of Upstream surveillance—is directly at odds with the legal
standard on a motion to dismiss. The truth of these well-pled factual allegations,
and the reasonable inferences that flow from them, is the starting-point for the
Court’s plausibility analysis.
Second, the government contends incorrectly that the Amended Complaint
must be dismissed unless Plaintiffs prove from the outset that the copying and
review of their communications is “certainly impending.” Def. Br. 26-29. As an
initial matter, Plaintiffs have alleged that their injuries are “certainly impending.”
Each Plaintiff has put forward a detailed claim that the NSA is presently copying
and reviewing its communications in the course of Upstream surveillance. See

1

The government also ignores the fact that the Court’s plausibility analysis is
limited to the pleadings and those documents incorporated by reference. Plaintiffs
address this requirement below in explaining why the government’s declarations
are not properly before the Court. See infra Section I.D.
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infra Section I.B-C. In any event, the government mischaracterizes the standards.
As the Supreme Court recognized in Amnesty, and as it has reiterated since then, a
plaintiff asserting future injuries need only show a “substantial risk” of harm.
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting Clapper
v. Amnesty Int’l USA, 133 S. Ct. 1138, 1150 n.5 (2013)). Moreover, while a
plaintiff must provide sufficient factual detail at the pleading stage to render its
claim of standing “plausible,” it is well-settled that a plaintiff need not plead every
piece of evidence nor prove standing to a factual certainty. See Lucas v. S.
Carolina Coastal Council, 505 U.S. 1003, 1012 n.3 (1992) (holding that even “a
generalized allegation of injury in fact” suffices “at the pleading stage”); Gwaltney
of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 65-66 (1987); see
also Br. of Law Professors 7-9, 12-14, ECF No. 32-1.2 Standing, like the other
elements of a claim, must be established “with the manner and degree of evidence
required” at each “successive stage[] of the litigation.” Susan B. Anthony List, 134
S. Ct. at 2342 (internal quotation marks omitted). The question at this stage of this

2

The Supreme Court recognized this principle in Amnesty itself, distinguishing
what must be pled from what must be proven at summary judgment. 133 S. Ct. at
1148-49 (“[A]t the summary judgment stage,” a plaintiff “can no longer rest
on . . . mere allegations, but must set forth by affidavit or other evidence specific
facts.”).
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case is simply whether Plaintiffs’ injuries, as set out in the Amended Complaint,
are plausible. They surely are.3
B.

Wikimedia has plausibly alleged the copying and review of its
communications.

The Amended Complaint plausibly alleges, on the basis of the government’s
official disclosures and necessary inferences from those disclosures, that the NSA
is copying and reviewing at least some of Wikimedia’s trillion-plus international
communications. Critically, the government has acknowledged that it is examining
the contents of Americans’ internet communications as they enter and leave the
United States, in search of references to its tens of thousands of targets. See
PCLOB Report 121-22, 113; [Redacted], No. [Redacted], 2011 WL 10945618, at
*15 (FISC Oct. 3, 2011). And it has acknowledged that it is conducting Upstream
surveillance on multiple major internet circuits. See Pl. Br. 26. While the
underlying technology may be complex, Wikimedia’s two basic allegations are
straightforward: (1) Wikimedia’s communications traverse every major internet

3

The government also argues that a heightened pleading standard applies
because this case requires a court “to decide whether an action taken by one of the
other two branches of the Federal Government was unconstitutional.” Def. Br. 28
(quoting Amnesty, 133 S. Ct. at 1147). But Plaintiffs’ claims also include a
statutory challenge. Compl. ¶ 165 (JA 84). If the Court agrees with Plaintiffs that
Section 702 authorizes the NSA to seize and search only the communications of
individual targets—rather than those of everyone—then it need not reach
Plaintiffs’ constitutional claims. See ACLU v. Clapper, 785 F.3d 787, 792 (2d Cir.
2015).
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circuit carrying traffic in and out of the United States; and (2) the government is
copying and reviewing all of the international text-based communications on each
of the circuits it monitors. Pl. Br. 24-39. These specific, factual allegations must be
accepted as true, and together they plausibly plead the copying and review of
Wikimedia’s internet communications.
The government’s arguments to the contrary are meritless.
First, the government says that Wikimedia “provide[s] no support” for the
allegation that its communications traverse every major internet circuit carrying
traffic in and out of the United States. Def. Br. 41. But this is not true. The
Amended Complaint explains that Wikimedia communicates with hundreds of
millions of individuals located in virtually every country on earth, and that its
trillion-plus communications each year are routed across the limited number of
major internet circuits that link the United States with the rest of the world. Pl. Br.
24-27; Compl. ¶¶ 60-62, 85, 88 (JA 47-48, 55-56). The government simply ignores
these allegations. In reality, the government is arguing that Wikimedia has not
supplied proof—at the pleading stage—of the truth of its allegations, but this
argument only highlights the government’s distortion of the pleading standards.
Second, the government also argues that the Court should not credit
Plaintiffs’ detailed allegation that the NSA is copying and reviewing all of the
international text-based communications on each of the circuits it monitors.
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Specifically, the government says that it has not “confirmed” the truth of this
allegation. Def. Br. 42. But the government is wrong to suggest that the only
allegations that count are the ones the government has expressly admitted to be
true. See Turkmen v. Hasty, 789 F.3d 218, 242 (2d Cir. 2015). Just as importantly,
Wikimedia has explained—in copious detail—why its allegations follow directly
from the government’s official acknowledgements about Upstream surveillance.
Pl. Br. 27-33; Compl. ¶¶ 62-64 (JA 44, 48-49).4 In short, the government has
acknowledged it is systematically searching the contents of international
communications for references to the NSA’s tens of thousands of targets—what
the PCLOB and the FISC call “about” surveillance. PCLOB Report 7, 37-39, 41
n.157. And, because of the way the internet works, the government could not
conduct this type of surveillance except by copying and reviewing all of the
international text-based communications on a given circuit. Pl. Br. 27-33.

4

The government suggests that virtually nothing is publicly known about the
scope and operation of Upstream surveillance, Def. Br. 23, 29, but that is
inaccurate. The disclosures are extensive. The PCLOB described and analyzed
Upstream in detail precisely because the surveillance relies on capabilities never
before available to the government. See, e.g., PCLOB Report 121-22; id. at 7-10,
12-13, 22, 30-41, 79. This report alone contains “over one hundred” newly
declassified facts concerning Section 702 surveillance. PCLOB, Tr. of Public
Meeting 8 (July 2, 2014), http://bit.ly/1SDbjcw. That is in addition to the many
public sources—including FISC opinions, transparency reports, and public hearing
testimony—cited in the report’s hundreds of footnotes.
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Relatedly, the government argues that “plaintiffs have provided no factual
allegations to support” the scientific and technological principles that inform this
allegation. Def. Br. 35, 39. But the Amended Complaint is replete with precisely
these allegations, which explain in detail how communications are routed across
the internet backbone and why Upstream surveillance entails the copying and
review of all international text-based communications transiting the circuits the
NSA is monitoring. Compl. ¶¶ 42, 44-45, 50, 62-64 (JA 41-42, 44, 48-49).
Plaintiffs are prepared to prove their allegations on the merits, but they are not
required to do so to survive a motion to dismiss.
Nevertheless, it bears emphasis that Wikimedia’s core allegation—namely,
that the NSA is copying and reviewing all the international text-based
communications on the circuits it is monitoring—is not merely an allegation. The
FISC has made clear that the NSA is searching the full text of every
communication flowing through the surveillance devices installed on those
international links. See [Redacted], 2011 WL 10945618, at *10, *15 (explaining
that the NSA’s Upstream surveillance devices search for and retain “any Internet
transaction transiting the device if the transaction contains a targeted selector
anywhere within it” (emphasis added)); see also PCLOB Report 122. This fact is
presented, too, as textbook material in the leading treatise on national-security
surveillance—one written, incidentally, by the former Assistant Attorney General
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for National Security. See David Kris & J. Douglas Wilson, National Security
Investigations and Prosecutions § 17.5 (2015) (“NSA’s machines scan the contents
of all of the communications passing through the collection point, and the presence
of the selector or other signature that justifies the collection is not known until
after the scanning is complete.”) (emphasis in original). And it is described as fact
by prominent members of the technology community. See Br. of Computer
Scientists and Technologists 2-3, 8-15 (“[T]he NSA is copying and searching all
communications that flow through the particular points on the internet ‘backbone’
at which the NSA has intervened.”).5
Because the NSA searches all international communications that flow
through certain circuits on the internet backbone, the government’s argument that
Wikimedia’s trillion-plus communications may represent only a small portion of
total internet traffic is beside the point. Def. Br. 37. Wikimedia’s standing does not
depend on its share of internet traffic. The crucial point is that Wikimedia’s
trillion-plus communications are sufficiently numerous and dispersed that they
traverse each of the major internet circuits that carry traffic in and out of the
country. Again, the government has acknowledged that it is monitoring some of
those circuits. Pl. Br. 26-27. And the NSA’s own documents confirm that

5

See id. at 2 (“[I]t is certain, as a technical matter, that some of Plaintiff
Wikimedia’s communications have been subject to Upstream surveillance.”).
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Wikimedia’s communications are among those that the government reviews and
retains. See Compl. ¶ 107 (JA 63); Pl. Br. 33 n.12 (describing NSA computer code
that allows analysts to identify intercepted Wikimedia communications). 6
Finally, the government simply mischaracterizes how Upstream surveillance
operates, calling it narrow and “targeted” when in fact it is broad and
indiscriminate. Def. Br. 52 (quoting Op. at 20). In so doing, the government
repeats one of the district court’s basic misunderstandings of Upstream
surveillance: that this surveillance is limited to the communications of legitimate
foreign-intelligence targets. As Plaintiffs have explained, however, in order to
identify communications to, from, and about its tens of thousands of targets, the
NSA is first copying and reviewing all of the international text-based
communications transiting the circuits it is monitoring. See Pl. Br. 27-33;
Compl. ¶¶ 62-63 (JA 48-49). This surveillance is sweeping in its scope—and
perhaps even unprecedentedly so:
Nothing comparable is permitted as a legal matter or possible as a
practical matter with respect to analogous but more traditional forms
of communication. From a legal standpoint, under the Fourth
Amendment the government may not, without a warrant, open and
6

Despite the government’s denials, Def. Br. 40, these documents show that the
NSA is eager to acquire—and is in fact acquiring—communications between
Wikimedia and the NSA’s targets. The government contends that the documents
offer no support because they do not expressly mention Upstream, but both pertain
to an NSA search tool that allows analysts to retrieve and examine data intercepted
in the course of Upstream surveillance as well as other programs. Compl. ¶ 107.
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read letters sent through the mail in order to acquire those that contain
particular information. Likewise, the government cannot listen to
telephone conversations, without probable cause about one of the
callers or about the telephone, in order to keep recordings of those
conversations that contain particular content.
PCLOB Report 122. Using surveillance devices installed on the internet backbone,
the NSA is examining the contents of the communications of targets and nontargets alike.7 In short, when the government calls the surveillance “targeted,” it is
referring to the results of its searches, while obscuring the fact that it searches the
contents of countless other communications to find those of interest to it. It is akin
to claiming that searching the contents of all letters passing through a mail
processing center for thousands of names is “targeted,” because only some of the
letters mention those names. No court has ever embraced that false logic to find a
search lawful, but regardless, it would be a question for the merits of this litigation,
not a basis for denying standing.8

7

See PCLOB Report 121-22 (describing surveillance of communications in
which “the target is not a participant”); David Kris, Trends and Predictions in
Foreign Intelligence Surveillance, 8 J. Nat’l Security L. & Pol’y 18 n.64 (2016),
http://bit.ly/1WLjG8C (discussing Upstream surveillance and observing that it is
unresolved whether the government should be permitted to “review the contents of
an unlimited number of e-mails from unrelated parties in its effort to find
information ‘about’ the target”).
8

The government also contends that Upstream surveillance is not “bulk”
surveillance, but it is playing the same type of word game. Def. Br. 54 n.14. It
emphasizes that it retains only some communications, but it ignores the fact that it
searches all of them.
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Wikimedia has plausibly alleged that its communications are subject to the
surveillance it challenges. Wikimedia’s detailed allegations do not remotely
resemble the type of “bare assertion” that the Fourth Circuit has rejected as
implausible under Iqbal. See, e.g., Johnson v. Am. Towers, LLC, 781 F.3d 693, 709
(4th Cir. 2015); Weidman v. Exxon Mobil Corp., 776 F.3d 214, 221 (4th Cir.
2015). Indeed, the government does not cite a single one of this Court’s plausibility
cases to support its position. That is not surprising; under the operative pleading
standards, this case is not a close one. Wikimedia’s well-pled allegations plausibly
establish its standing.
C.

Plaintiffs have plausibly alleged that the NSA is copying and
reviewing “substantially all” international text-based
communications, including their own.

As Plaintiffs explained in their opening brief, while Wikimedia would have
standing even if the NSA were monitoring only a single major internet circuit, the
NSA’s surveillance activities are in fact much broader. See Pl. Br. 40-48. All of the
Plaintiffs have standing to challenge Upstream surveillance because the NSA is
copying and reviewing substantially all text-based communications originating or
terminating in the United States, including the communications of Plaintiffs.
In response, the government once again disregards the presumptions that
attach on a motion to dismiss. Like the district court, the government adopts a
position directly at odds with the pleading rules, arguing—categorically—that
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Plaintiffs “could not allege” sufficient facts to establish their standing because
some facts about Upstream surveillance remain classified. Def. Br. 29 (quoting Op.
at 18). That is wrong: the government’s admissions are not the measure of
plausibility. In any case, the existing public disclosures about Upstream
surveillance establish Plaintiffs’ standing. Cf. ACLU v. Clapper, 785 F.3d 787,
800-03 (2d Cir. 2015) (finding standing even while some aspects of the bulk callrecords program remained classified).9
These public disclosures show that: (1) the government uses Upstream
surveillance to “reliably” and “comprehensively” obtain communications to, from,
and about its targets; (2) those targets number in the tens of thousands and are
located all over the world; (3) the communications of these targets follow everchanging paths across the internet; and (4) in order to conduct Upstream
surveillance, the NSA has installed surveillance equipment at dozens of major
chokepoints on the internet backbone. Pl. Br. 40-46. Together, these facts support
Plaintiffs’ allegation that the NSA is copying and reviewing substantially all
international text-based communications. This allegation is consistent with the
views of computer scientists, who have described the processes required to conduct

9

Notably, the government has not invoked the state secrets privilege in this
litigation. Indeed, in this context, the state secrets privilege has been preempted by
statute. See 50 U.S.C. §§ 1806(f), 1881e(a) (preempting state secrets privilege
where lawfulness of FISA and FAA surveillance is challenged).
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Upstream surveillance. See Charlie Savage, N.S.A. Said to Search Content of
Messages to and from U.S., N.Y. Times, Aug. 8, 2013, http://nyti.ms/1E1nlsi
(incorporated into complaint by reference, Compl. ¶ 69 (JA 51)).
Contrary to the government’s argument, Plaintiffs’ conclusion is not
founded on a general assertion that the NSA has the capacity or motivation to
collect intelligence. Def. Br. 29-33. It is founded, rather, on provable facts about
the structure and operation of the internet. The surveillance could not operate as
the government has described it except as Plaintiffs have alleged. This case is not
like Klayman v. Obama, see Def. Br. 32, which came before the D.C. Circuit on
the higher, preliminary-injunction standard and in which the plaintiffs put forward
no evidence of the scale of the program beyond the government’s desire to collect
large amounts of call records. 800 F.3d 559 (D.C. Cir. 2015). Here, Plaintiffs not
only allege the “who, what, when, and where” of the conduct they challenge, SD3,
L.L.C. v. Black & Decker, Inc., 801 F.3d 412, 430 (4th Cir. 2015), but also,
significantly, why the surveillance operates as they describe.
The government is also wrong to fault Plaintiffs for relying on NSA
documents and public reports that show the NSA is, in fact, conducting Upstream
surveillance at dozens of backbone chokepoints operated by the largest
telecommunications providers in the country. Pl. Br. 46 & n.16. The government
argues, in effect, that Plaintiffs’ allegations are implausible simply because these
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documents do not use the word “most” or “all.” Def. Br. 34 & n.11. But the
documents and reports do not purport to be exhaustive. Rather, they confirm that—
between just two of the participating providers—the NSA is monitoring at least 24
different backbone chokepoints. That is strong support for Plaintiffs’ allegations
about where and how the surveillance is being conducted.
Finally, contrary to the government’s suggestion, Plaintiffs need not
allege—let alone prove—that the NSA is copying and reviewing every single
international internet communication at every single chokepoint. See Def. Br. 3334. Rather, it is sufficient for Plaintiffs to allege that Upstream surveillance could
not be implemented as the government has described it without examining
substantially all internet traffic entering and leaving the country. See Monsanto Co.
v. Geertson Seed Farms, 561 U.S. 139, 154-55 (2010) (finding Article III standing
where party showed a “significant risk” that “gene flow” would affect plaintiff’s
crops); Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
184-85 (2000) (finding standing where the “continuous and pervasive” discharge
of pollutants into waterway affected plaintiffs’ use of river and surrounding areas).
That is precisely what Plaintiffs’ allegations plausibly establish.
D.

The government’s declarations must be disregarded.

In addition to distorting the plausibility standard, the government
impermissibly seeks to introduce its own declarations. However, because the
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government brought a “facial” challenge to Plaintiffs’ complaint—as opposed to a
“factual” one—the government’s two declarations are not properly before the
Court, just as they were not properly before the district court. The law is clear:
when assessing a facial challenge, a court cannot consider evidence beyond the
complaint and documents incorporated by reference. Here, it is plain that the
government’s challenge was a facial one, and its belated protests to the contrary
are belied by the record. Accordingly, this Court should disregard the
government’s declarations, as the district court concluded it was required to do.
Op. at 10 n.8 (JA 183).10
The Fourth Circuit has explained that there are “two critically different
ways” in which a defendant can move to dismiss for lack of subject-matter
jurisdiction: it can contend that the complaint fails on its face to include allegations
that would, if taken as true, establish subject-matter jurisdiction; or it can contend
that the jurisdictional allegations of the complaint are not true as a matter of fact.
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); Kerns v. United States, 585
F.3d 187, 192-93 (4th Cir. 2009).

10

If this Court concludes that the government presented a factual challenge
below, it should remand the case so that Plaintiffs can put their own factual
record—including expert testimony—before the district court. Moreover, for
reasons discussed infra, that challenge must be resolved under Rule 56, not Rule
12(b)(1).
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Despite what it now argues on appeal, in its motion to dismiss, the
government brought only a facial—not factual—challenge. Its motion made no
reference to a factual challenge, and it cited a single standard: Iqbal’s plausibility
standard. See Def. Mot. Dismiss 14, ECF No. 77-1 (contending that the Amended
Complaint did not contain “sufficient factual matter, accepted as true” to “‘state a
claim [to standing] that is plausible on its face’” (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)) (emphasis added)); see also, e.g., id. at 3, 4, 13, 14, 16.
Moreover, the government repeatedly relied on its declarations to argue that
Plaintiffs’ allegations were not “plausible,” just as it does on appeal. See Def. Br.
39, 41, 43 (“Evidence submitted by the government confirms that plaintiffs failed
to plausibly state an injury.”). Because the government described its challenge
solely as one to plausibility, the district court rightly held that the government’s
proffered declarations should be disregarded. Op. at 10 n.8 (JA 183).
Indeed, under this Court’s precedents, the government could not permissibly
have raised a factual challenge under Rule 12(b)(1), because here the jurisdictional
question and merits questions are intertwined. See Adams, 697 F.2d at 1219;
Kerns, 585 F.3d at 193 (intertwined factual issues must be resolved using the
procedures “that would apply were the plaintiff facing a direct attack on the
merits”). Plaintiffs’ allegation that the government is unlawfully copying and
reviewing their communications not only goes to Plaintiffs’ standing, but it is also
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one of the central elements of Plaintiffs’ statutory and constitutional claims.
Because this allegation is intertwined with the merits, any factual dispute over its
truth would have to be resolved under Rule 56, not Rule 12(b)(1). See Kerns, 585
F.3d at 193.11
Finally, the government’s contention that Plaintiffs forfeited their
opportunity to rebut the government’s factual claims is entirely without merit. Def.
Br. 43. Plaintiffs made clear to the district court that they would submit their own
evidence, including expert declarations, if the court construed the government’s
challenge as a factual one. Pl. Opp. to Mot. Dismiss 16 & n.11, ECF No. 86; see
Adams, 697 F.2d at 1220 (“sufficient facts” must be developed before resolving a
factual challenge). But the court correctly construed the government’s challenge as
a facial one.
The government is trying to have it both ways—that is, to have the benefit of
its own facts without ever submitting to the fact-finding and discovery that would
accompany a genuine factual contest. By casting its motion as a challenge to
11

To permit a defendant to contest the truth of a plaintiff’s injury-in-fact on a
motion to dismiss—rather than as part of the merits of a claim—would
significantly remake the course of civil proceedings. Cases permitting Rule
12(b)(1) factual challenges invariably involve other questions of personal or
subject-matter jurisdiction, not challenges to a plaintiff’s injury-in-fact, which is
almost always intertwined with the merits. Compare, e.g., United States ex rel.
Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009), with Potomac Conf. of
Seventh-Day Adventists v. Takoma Acad. Alumni Ass’n, 2 F. Supp. 3d 758, 767 (D.
Md. 2014).
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plausibility in the district court, the government sought to avoid any inquiry into
whether it is in fact copying and reviewing Plaintiffs’ communications. The
declarations it submitted do not purport to address or resolve this question. Instead,
those declarations—offered by two individuals with “no knowledge” of how
Upstream operates, see, e.g., Lee Decl. ¶ 13 n.5 (JA 107)—simply argue that the
program does not “necessarily” function in the manner Plaintiffs allege. See Def.
Mot. Dismiss 29-30. In other words, they are intended to make Plaintiffs’
allegations appear less plausible.12 The Court should reject the government’s effort

12

Significantly, neither Lee nor Salzberg claims to have any knowledge of how
Upstream surveillance actually works. Instead, both provide misleading criticisms
of Plaintiffs’ allegations by offering opinions that fail to take into account the
publicly disclosed facts. Lee, for instance, points out that physical submarine
cables can contain multiple fibers, but he does not address how the internet circuits
routed over these physical cables and fibers actually operate. Lee Decl. ¶¶ 11-13
(JA 106-07). As the government’s disclosures make clear, Upstream surveillance is
directed at major “circuits” or “links” on the internet backbone. PCLOB Report 3637; [Redacted], 2011 WL 10945618, at *15; Compl. ¶¶ 60-61 (JA 47-48). Each of
these circuits, which may span multiple fibers in a given cable, carries an
enormous amount of international internet traffic from one provider to another.
Because Lee does not address these circuits at all, he does not actually dispute the
key allegation he purports to criticize. Moreover, Lee’s assertions are at odds with
the expert opinion of more than a dozen highly regarded computer scientists. See
Br. of Computer Scientists and Technologists 2-3, 8-15.
The Salzberg Declaration is no more reliable. Plaintiffs’ statistical illustration
shows just how unlikely it is that Upstream surveillance does not touch any of
Wikimedia’s trillion-plus communications each year. Pl. Br. 35-37. Salzberg
criticizes the illustration because it assumes that the surveillance is random. But as
Plaintiffs explain, the properties that make Upstream surveillance non-random are
properties that make it only more likely that Wikimedia is subject to this
surveillance. For instance, Upstream is designed to capture precisely the type of
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to prevail on plausibility by relying on one-sided, extrinsic evidence—evidence
that the district court properly refused to consider.
II.

Amnesty does not control this case because Plaintiffs do not challenge
targeted surveillance.
The government erroneously argues that the standing inquiry in this case is

controlled by Amnesty, in which the Supreme Court held that plaintiffs lacked
standing because they could not prove that the surveillance they complained of was
taking place, or that it ever would—let alone that their own communications would
be subject to it. See Def. Br. 51. But where the Amnesty plaintiffs could only
“speculat[e]” about the surveillance they challenged, 133 S. Ct. at 1148, here
Plaintiffs have established—based on government disclosures and provable facts
relating to the volume and dispersion of their own communications—that
Upstream surveillance ensnares them.
First, the type of “speculation” that foreclosed the plaintiffs’ standing in
Amnesty is simply not at issue in this case. The Amnesty plaintiffs argued, but
could not show to a sufficient likelihood, that the government was targeting
communications to which the plaintiffs were party. See id. (discussing speculation
concerning the government’s decision to target, the government’s choice of legal
authority, FISC approval of that authority, the government’s actual interception of
international text-based communications that Wikimedia engages in, while filtering
out other types of communications. See Compl. ¶ 59 (JA 47).
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targeted communications, and the plaintiffs’ involvement in targeted
communications). The thrust of the Court’s analysis was that the plaintiffs could
only speculate as to how government officials would exercise their discretion in
choosing targets or legal authorities, and whether the FISC would actually
authorize such surveillance. Id. at 1149, 1150 & n.5. Here, however, Plaintiffs have
not challenged a hypothetical program of targeted surveillance, but rather a
publicly acknowledged form of FISC-approved surveillance that involves the bulk
copying and review of international communications. While not every operational
detail of this surveillance is known, Plaintiffs have plausibly alleged—based on all
that is known about Upstream surveillance—that it captures their communications.
Second, the government is wrong in arguing that “about” surveillance is
“targeted insofar as it makes use of only those communications that contain
information matching the tasked selectors.” Def. Br. 52. As Plaintiffs have
explained, in order to target communications containing selectors, the government
must first copy and review essentially everyone’s international communications.
Pl. Br. 13-14. The government’s argument entirely ignores the copying and review
stages of Upstream surveillance—and thus ignores injuries that were not before the
Court in Amnesty.
Finally, the government views Amnesty as an almost-categorical bar to
standing, but even the five Justices in the majority were clear that different facts
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could produce a different result. There is no question that this case presents such
facts. For one thing, Wikimedia engages in so many internet communications that
it is virtually unthinkable the government could avoid every single one of those
communications while operating a surveillance program that systematically
examines international internet traffic. Also, in Amnesty itself, the Supreme Court
suggested that a lawyer who represented a target of FAA surveillance would have
standing. See 133 S. Ct. at 1154. Plaintiffs’ Amended Complaint identifies
precisely such a lawyer. See Pl. Br. 55-57. Plaintiff NACDL’s Joshua Dratel has
taken costly and burdensome measures to protect the confidentiality of his
communications, and as a result he has suffered an Article III injury traceable to
Upstream surveillance.13 A recently released FISC opinion only underscores the
reasonableness of the measures he has taken. Mem. Op. at 50, [Redacted], No.
[Redacted] (FISC Nov. 6, 2015), http://1.usa.gov/1Vq8tLp (describing the FISC’s
“extreme[] concern[]” about the government’s treatment of attorney-client
communications). The facts alleged in this case go far beyond Amnesty, and it
requires no “speculation” to conclude that Plaintiffs have adequately pled standing.

13

The government says that Mr. Dratel cannot be certain whether the
government is using Upstream or PRISM, but it is clear that the government uses
both methods to surveil its individual targets. As the PCLOB Report emphasizes,
the NSA uses Upstream to search for communications that it could not identify via
PRISM. PCLOB Report 35, 119.
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The government’s copying and review of Plaintiffs’ communications
establish standing.
Though the district court did not reach the issue, the government argues that

Plaintiffs lack standing even if it is true (as it is) that the NSA intercepts, copies,
and reviews their communications. See Def. Br. 45-48. This argument fails for
several reasons.
First, the government conflates the standing inquiry with the merits. The
government is intercepting, copying, and reviewing Plaintiffs’ communications,
and so Plaintiffs are unquestionably entitled to invoke the Court’s jurisdiction to
test the legality of that surveillance. See Clapper, 785 F.3d at 801; Amidax Trading
Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 147 (2d Cir. 2011) (observing, in dicta,
“[t]o establish an injury in fact—and thus, a personal stake in this litigation—
[plaintiff] need only establish that its information was obtained by the
government”).
The government argues that Plaintiffs must further show that the
interception, copying, and review of their communications invades interests
protected by the Fourth Amendment, but this goes to the merits, not to standing.
Rakas v. Illinois, 439 U.S. 128, 139-40 (1978) (stating that the definition of Fourth
Amendment rights “is more properly placed within the purview of substantive
Fourth Amendment law than within that of standing”); Minnesota v. Carter, 525
U.S. 83, 87 (1998) (criticizing courts for analyzing whether a party has “a
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legitimate expectation of privacy” under “the rubric of ‘standing’ doctrine”);
United States v. Lawson, 410 F.3d 735, 740 n.4 (D.C. Cir. 2005). In any event, it is
well-settled that the interception of communications while in transit is not just an
Article III injury, but a search or seizure within the meaning of the Fourth
Amendment. That is true whether those communications are physical, see Ex parte
Jackson, 96 U.S. 727, 733 (1877); Hearst v. Black, 87 F.2d 68, 70-71 (D.C. Cir.
1936) (government’s copying of telegrams in transit was a “dragnet seizure” that
violated sender’s possessory and privacy rights), or electronic, see Katz v. United
States, 389 U.S. 347, 353 (1967); cf. LeClair v. Hart, 800 F.2d 692, 695-96 & n.5
(7th Cir. 1986).
Second, even if Wikimedia had no cognizable privacy interest in its
communications with its users, Wikimedia has separately alleged that Upstream
surveillance invades its possessory and expressive interests in those
communications. See, e.g., Compl. ¶¶ 55, 73, 76, 89-95, 98-99, 113, 118, 131, 134
(JA 46, 52-53, 57-60, 66-68, 72-73) (describing Wikimedia’s interest in controlling
the information in its communications, including information in which Wikimedia
has a protected associational interest). The government has never contested those
well-pled allegations, and so, for the purposes of the standing inquiry, the question
of whether Wikimedia has a protected privacy interest in its own communications
is irrelevant.
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The only question before the district court—and before this Court now—is
whether Plaintiffs have plausibly alleged standing. This Court need not reach the
merits in order to resolve the jurisdictional question, and the government’s
confused effort to conflate the two questions should be rejected. Because the
government has engaged the merits, however, Plaintiffs feel obliged to address the
merits briefly.
First, the government’s novel legal theory notwithstanding, Def. Br. 47, 51,
a computerized search is still a search. No case supports the government’s radical
“human eyes” theory of the Fourth Amendment. In fact, the only cases remotely on
point make clear that the government cannot avoid the Fourth Amendment by
carrying out privacy invasions using computers rather than human agents. See, e.g.,
United States v. Crist, 627 F. Supp. 2d 575, 585 (M.D. Pa. 2008) (holding that
using an electronic device to compare digital files on an individual’s computer
with other known files “constitutes a search”).
Second, Wikimedia has asserted its own protected privacy interests—and
not just those of its users—in its communications. The government’s brief
overlooks these extensive allegations. Compare Def. Br. 46, with Pl. Br. 16-18;
Compl. ¶¶ 90-93, 95-96, 98-99, 102-04 (JA 57-62) (describing the different
categories of Wikimedia communications and the range of sensitive and private
information they contain). The government also overlooks the Supreme Court’s
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decision in City of Los Angeles v. Patel, which permitted motel operators to bring a
Fourth Amendment challenge to the search of guest registries containing
information about the motels’ patrons. 135 S. Ct. 2443, 2447-48, 2452 (2015).
Because Wikimedia’s mission depends on the confidentiality of its
communications, Compl. ¶¶ 98-99 (JA 59-60), Wikimedia’s privacy interests in
those communications are far stronger than the interests at issue in Patel.14
Third, the government is simply wrong that Wikimedia’s communications
disclose little about its users. Def. Br. 46. These communications reveal the IP
addresses of Wikimedia’s users, which are easy to link to particular individuals,
revealing a great deal of sensitive information about what those users are reading
and writing online. See Compl. ¶¶ 94-96 (JA 58-59); see also Dep’t of Homeland
Security, Privacy Impact Assessment for the Use of Google Analytics 2, 3, 11 (June
9, 2011), http://1.usa.gov/1yCTj4A (describing IP addresses as “personally
identifiable information”).

14

The government cites no case for the proposition that organizations like
Wikimedia lack a privacy interest in their own communications simply because
they include information about individual patrons or customers, or because those
communications are facilitated by computers. That is not surprising. Both the
Wiretap Act and FISA recognize that companies have protected interests in their
communications and authorize companies to sue for the unlawful interception of
those communications. 18 U.S.C. §§ 2510(6), 2520 (permitting corporations to
bring claims under the Wiretap Act); 50 U.S.C. §§ 1801 (i), 1810 (same under
FISA). A ruling that companies lack a protected interest in their own
communications, and thus lack standing to sue, would upend both these schemes.
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Finally, Wikimedia has standing to assert the rights of its U.S.-person users.
See Pl. Br. 61 (describing claims). Notably, in cases where the ability of
individuals to speak, read, and write privately and anonymously is at stake—as it is
here—the Supreme Court has been “quite forgiving” in applying its third-party
standing test. Kowalski v. Tesmer, 543 U.S. 125, 130 (2004); see Cooksey v.
Futrell, 721 F.3d 226, 234 (4th Cir. 2013). Regardless, Wikimedia has satisfied all
three conditions for third-party standing: Wikimedia itself has stated an injury-infact based on the interception of its communications; Wikimedia enjoys an “active
and close relationship” with many of the community members whose rights it
seeks to protect, and thus it will be an effective proponent of its users’ rights,
Compl. ¶¶ 83-84, 101 (JA 54-55, 61); and Wikimedia’s users face clear obstacles
to litigating their own rights in this context. Indeed, users’ interest in preserving
their anonymity is precisely the kind of “practical obstacle” to bringing suit that
gives rise to third-party standing. Enterline v. Pocono Med. Ctr., 751 F. Supp. 2d
782, 786 (M.D. Pa. 2008).
IV.

Plaintiffs’ First Amendment injuries supply an independent basis for
standing.
The government does not address Plaintiffs’ First Amendment injuries

except to say that “subjective ‘chill’” is no basis for standing. Def. Br. 56. But the
injuries to Plaintiffs’ protected activities are objective and concrete. Wikimedia,
for example, provides people around the world with access to free educational
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content. Compl. ¶ 6 (JA 31). NSA surveillance, including Upstream surveillance,
has caused a significant, sustained, and measurable decline in the number of
readers accessing some of Wikimedia’s resources. See Jonathon Penney, Chilling
Effects: Online Surveillance and Wikipedia Use, 31 Berkeley Tech L.J. __
(forthcoming 2016). This drop-off in readers is a direct harm to Wikimedia itself,
Compl. ¶ 110 (JA 64-65), and it is unlike any harm put before the Supreme Court
in Amnesty. The government’s “continuous and pervasive” monitoring of internet
traffic is not hypothetical, and thus this injury is not a speculative or self-inflicted
one. Laidlaw, 528 U.S. at 184-85. Wikimedia is akin to the world’s largest library,
and Upstream surveillance is driving away readers who would otherwise access
this vast store of knowledge. This injury to First Amendment rights is sufficient in
itself to support standing.
CONCLUSION
The district court’s order dismissing Plaintiffs’ Amended Complaint should
be reversed.
May 6, 2016

Respectfully submitted,

Deborah A. Jeon
David R. Rocah
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND
3600 Clipper Mill Rd., #350
Baltimore, MD 21211
Phone: (410) 889-8555
Fax: (410) 366-7838

/s/ Patrick Toomey
Patrick Toomey
Jameel Jaffer
Alexander Abdo
Ashley Gorski
Brett Max Kaufman
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
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jeon@aclu-md.org
Charles S. Sims
David A. Munkittrick
PROSKAUER ROSE LLP
Eleven Times Square
New York, NY 10036
Phone: (212) 969-3000
Fax: (212) 969-2900
csims@proskauer.com

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125 Broad Street, 18th Floor
New York, NY 10004
Phone: (212) 549-2500
Fax: (212) 549-2654
ptoomey@aclu.org

Counsel for Plaintiffs–Appellants

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CERTIFICATE OF COMPLIANCE
1.

This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because it contains 6,984 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2.

This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because
it has been prepared in a proportionally spaced typeface using Microsoft
Word in 14-point Times New Roman.
/s/ Patrick Toomey
Patrick Toomey
Counsel for Plaintiffs–Appellants

Date: May 6, 2016

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CERTIFICATE OF SERVICE
On May 6, 2016, I served upon the following counsel for Defendants–
Appellees one copy of Plaintiffs–Appellants’ REPLY BRIEF FOR PLAINTIFFS–
APPELLANTS via this Court’s electronic-filing system:
H. Thomas Byron, III
Catherine H. Dorsey
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Phone: (202) 616-5367
H.Thomas.Byron@usdoj.gov
/s/ Patrick Toomey
Patrick Toomey
Counsel for Plaintiffs–Appellants

Date: May 6, 2016

32