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

29 Pages Posted: 2 Nov 2020 Last revised: 8 Dec 2020

See all articles by David H. Kaye

David H. Kaye

PSU - Penn State Law (University Park); ASU - College of Law & School of Life Sciences

Edward J. Imwinkelried

University of California, Davis - School of Law

D. Michael Risinger

Seton Hall University School of Law

Rebecca Wexler

University of California, Berkeley, School of Law

Date Written: July 8, 2020

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.

Keywords: Standing, Daubert, Expert Testimony, Upstream Surveillance, Internet, NSA

Suggested Citation

Kaye, David H. and Imwinkelried, Edward J. and Risinger, D. Michael and Wexler, Rebecca, Brief of Amici Curiae Evidence Law Professors in Support of Plaintiff-Appellant and Supporting Reversal in Wikimedia v. NSA (July 8, 2020). Available at SSRN: https://ssrn.com/abstract=3700444 or http://dx.doi.org/10.2139/ssrn.3700444

David H. Kaye (Contact Author)

PSU - Penn State Law (University Park)

Lewis Katz Building
University Park, PA 16802
United States

HOME PAGE: http://www.personal.psu.edu/dhk3/index.htm

ASU - College of Law & School of Life Sciences ( email )

111 E Taylor St.
Phoenix, AZ 85004
United States

HOME PAGE: http://www.personal.psu.edu/dhk3/index.htm

Edward J. Imwinkelried

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

D. Michael Risinger

Seton Hall University School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
(973) 642-8834 (Phone)

Rebecca Wexler

University of California, Berkeley, School of Law ( email )

691 Simon Hall
Berkeley, CA 94720
United States
510 664 5258 (Phone)

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