Brief of Amici Curiae Evidence Law Professors in Support of Plaintiff-Appellant and Supporting Reversal in Wikimedia v. NSA

Abstract

The National Security Agency (NSA) engages in warrantless upstream surveillance of international communications that travel along the Internet’s “backbone” of fiber optic cables. The government has stymied Fourth Amendment challenges on the ground that plaintiffs lack standing because they cannot prove that the NSA has intercepted, copied, or reviewed any of their communications. Of course, the reason plaintiffs have no direct evidence of such surveillance is that the government asserts that the surveillance program is a state secret, and its details are classified. In response to a motion for summary judgment in Wikimedia Foundation v. National Security Agency, the foundation produced expert reports concluding that it is all but certain that the NSA intercepted and opened at least one of Wikimedia's trillions of Internet communications. Treating the expert's opinion as inadmissible under Federal Rule of Evidence 702 as interpreted in Daubert v. Merrell Dow Pharmaceuticals, the district court granted summary judgment. In a pending appeal to the U.S. Court of Appeals for the Fourth Circuit, four evidence law professors filed a brief as amici curiae in support of Wikimedia. The brief, posted here, questions the district court’s abbreviated analysis of Rule 702 and Daubert. It describes the applicable standard for excluding expert testimony. It then argues that the expert’s method of reasoning was sound and that the underlying facts regarding the nature of Internet communications and surveillance technology, together with public information on the goals and needs of the NSA program, were sufficient to justify the receipt of the proposed testimony.