George Orwell’s 1984 in America

George Orwell’s 1984 depicted a spy society as a parody of communism gone global.

Edward Snowden revealed the reality of George Orwell’s spy society in the most unlikely and unpredictable place– 21st Century America.

The extent of the federal government’s spy network data surveillance activities on U.S. soil by the National Security Agency (NSA) has faced intense scrutiny. From U.S. tech companies to civil liberties groups to members of Congress, there is no shortage of groups seeking to reign in the agency’s domestic spy program.

Wikimedia Foundation is the latest to file suit against the NSA. In a complaint filed earlier this month, Wikimedia alleged that the NSA’s large-scale search and seizure of Internet communications — known as “upstream” surveillance — violates its users’ constitutional rights.

According to the suit, the NSA has exceeded its authority under the Foreign Intelligence Surveillance Act Amendments Act (FAA), and violated the First and Fourth Amendments of U.S. citizens, by intercepting, copying, and reviewing their Internet communications as they travel across the Internet “backbone” in the United States. As Wikimedia explains in its complaint, the “Internet backbone” is the network of high-capacity cables, switches, and routers that facilitates both domestic and international communication via the Internet.

“We’re filing suit today on behalf of our readers and editors everywhere,” Jimmy Wales, founder of Wikipedia, wrote in a recent blog post. “Surveillance erodes the original promise of the Internet: an open space for collaboration and experimentation, and a place free from fear.”

Wikimedia’s suit is not the first to challenge the NSA’s surveillance. In Clapper v. Amnesty Intl. USA, the Supreme Court ruled that a coalition of attorneys, human rights advocates, and media organizations lacked the standing needed to challenge the FAA in a court of law. The justices rejected the plaintiffs’ argument that they had suffered injury in fact because there was a reasonable likelihood that the NSA would intercept their communications with their foreign contacts.

Wikimedia asserts that it will not suffer a similar fate because NSA documents disclosed in 2013 revealed that the agency specifically targeted Wikipedia and its users. However, even if the plaintiffs can establish standing, they will have to establish that their privacy rights have been violated.

In defense of its practices, the NSA largely relies on the U.S. Supreme Court’s decision in Smith v. Maryland, which involved whether the installation and use of a pen register, a device that records the numbers a person dials, constitutes a “search” within the meaning of the Fourth Amendment. By a vote of 5-3, the Supreme Court ultimately concluded that individuals do not have a reasonable expectation of privacy in the phone numbers they dial.

However, as many legal scholars note, much has changed since 1979. The Supreme Court’s recent decisions in United States v. Jones (police GPS tracking requires a warrant) and Riley v. California (police need a warrant to search cell phones) also suggest that the justices recognize that decades old precedent does not always apply to modern day technology.

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