MEMORANDUM OPINION

T.S. Ellis, III, United States District Judge.

Plaintiff, Wikimedia Foundation ("Wikimedia"),1 challenges the legality of the National Security Agency's ("NSA") Upstream surveillance data gathering efforts, one of a series of recent cases challenging the constitutionality of the NSA's surveillance programs.2 According to the Director of National Intelligence ("DM"), Upstream surveillance is a surveillance program authorized pursuant to § 702 of the Foreign Intelligence Surveillance Act ("FISA") that involves the targeted collection of non-U.S. persons' international Internet communications by the NSA.3 Wikimedia alleges that the NSA has intercepted, copied, and collected Wikimedia's Internet communications pursuant to the Upstream surveillance program and that such interception, duplication, and collection exceeds the NSA's authority under FISA and violates Wikimedia's rights under the First and Fourth Amendments of the Constitution.

At issue in this matter is defendants' motion for summary judgment. Defendants argue that judgment must be entered in their favor because Wikimedia, the only remaining plaintiff, lacks Article III standing. Defendants also argue that even if a genuine dispute of material fact exists as to Wikimedia's standing, the state secrets doctrine precludes further litigation of Wikimedia's standing, and thus requires entry of judgment in defendants' favor.

Before analyzing the parties' arguments on the issue of Article III standing and the state secrets doctrine, however, it is important to address briefly three topics: (i) the definition of Upstream surveillance and the statutory authority for the NSA's Upstream surveillance program, (ii) the procedural history of this case, and (iii) the undisputed factual record developed by the parties. After addressing these three preliminary topics, which frame all of the analysis that follows, the pertinent summary judgment standard is set forth, and the parties' arguments are analyzed under that standard. For the reasons that follow, Wikimedia has failed to establish that it has Article III standing sufficient to survive summary judgment, and further litigation of this matter is precluded by the state secrets doctrine. Accordingly, this case must be dismissed, and judgment must be entered in favor of defendants.

I.

To begin with, it is necessary to define Upstream surveillance, the NSA program at issue in this litigation, and to clarify what is meant by the term Upstream surveillance as that term is used in this litigation. The NSA conducts Upstream surveillance pursuant to § 702 of FISA, 50 U.S.C. § 1881a. The government has acknowledged that it conducts § 702 surveillance through two programs, namely the Upstream and PRISM programs.4 In PRISM surveillance, the government acquires communications directly from a United States-based Internet Service Provider ("ISP"). See PCLOB 702 Report, at 33. In contrast, the acquisition of communications via Upstream surveillance does not occur "with the compelled assistance of the United States ISPs, but instead with the compelled assistance ... of the providers that control the telecommunications backbone over which communications transit."5 Id. at 35. Thus, Upstream collection, unlike PRISM collection, "does not occur at the local telephone company or email provider with whom the targeted person interacts." Id. Instead, the collection of communications for Upstream surveillance "occurs `upstream' in the flow of communications between communication service providers." Id. Only the Upstream surveillance program is at issue in this case.

As noted, the government contends that its Upstream surveillance, program is conducted pursuant to FISA § 702. Specifically, § 702 permits the Attorney General and the DNI to authorize jointly, for up to one year, foreign-intelligence surveillance targeted at non-U.S. persons located abroad,6 if the Foreign Intelligence Surveillance Court ("FISC")7 approves the government's written certification demonstrating that the intended surveillance complies with statutory requirements.8 To approve such a certification, the FISC must determine that the government's targeting procedures are reasonably designed:

In effect, FISC approval of government surveillance pursuant to § 702 means that the FISC has found that the surveillance comports with the statutory requirements and the Constitution.

The recent release of public reports and declassification of some FISC opinions have revealed additional details regarding the collection of communications pursuant to § 702. After the FISC approves a § 702 certification, the NSA designates "targets," which are non-U.S. persons located outside the United States who are reasonably believed to possess or receive, or are likely to communicate, foreign-intelligence information designated in the certification.10 The NSA then attempts to identify "selectors," namely the specific means by which the targets communicate, such as email addresses or telephone numbers.11 Importantly, selectors cannot be key words (e.g., "bomb") or targets' names (e.g., "Bin Laden"); rather, selectors must be specific communication identifiers.12 The government then may issue a § 702 directive to a U.S. telecommunications service provider requiring it to assist the government in acquiring communications involving those selectors.13

As for the actual collection of communications containing these targeted selectors, the government has described the Upstream surveillance collection process as follows:

Defs.' Br. 4 (quoting Pub. Decl. of Daniel R. Coats, Director of National Intelligence, ¶ 15, ECF No. 138-2).14 Thus, the Upstream surveillance collection process involves three steps—(1) filtering, (2) scanning, and (3) ingesting. As this description shows, although the government has disclosed some information about Upstream surveillance in declassified documents and unclassified reports, most technical details of the Upstream surveillance process remain classified. Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 202 (4th Cir. 2017) (citing Jewel v. Nat'l Sec. Agency, 810 F.3d 622, 627 (9th Cir. 2015)).

II.

With this statutory framework and definition of Upstream surveillance in mind, it is appropriate to turn to the procedural history of this case. On June 22, 2015, Wikimedia, along with eight other organizations,15 filed the Amended Complaint in this suit, challenging the legality of the NSA's Upstream surveillance program. The Amended Complaint alleges that Upstream surveillance (i) exceeds the scope of the government's authority under § 702, (ii) violates Article III, (iii) violates the First Amendment, and (iv) violates the Fourth Amendment and requests (i) a declaration that Upstream surveillance violates the Constitution and § 702 and (ii) an order permanently enjoining the NSA from conducting Upstream surveillance. On August 6, 2015, defendants moved to dismiss the Amended Complaint, arguing that plaintiffs lacked Article III standing. On October 23, 2015, defendants' motion was granted on the ground that plaintiffs' allegations were too speculative to establish Article III standing. Wikimedia Found. v. Nat'l Sec. Agency, 143 F.Supp.3d 344, 356 (D. Md. 2015), aff'd in part, vacated in part, and remanded by, 857 F.3d 193 (4th Cir. 2017).

Thereafter, plaintiffs appealed, and the Fourth Circuit affirmed in part, vacated in part, and remanded the case for further consideration. Wikimedia Found., 857 F.3d at 200. Specifically, the Fourth Circuit vacated the finding that Wikimedia lacked standing, but affirmed the finding that the other plaintiffs lacked standing. Id. The Fourth Circuit concluded that Wikimedia had established standing sufficient to survive a facial challenge to the Amended Complaint based on the "Wikimedia Allegation", namely the allegation "that the sheer volume of [Wikimedia's] communications makes it virtually certain that the NSA has intercepted, copied, and reviewed at least some of [Wikimedia's] communications[,]" "even if the NSA conducts Upstream surveillance on only a single [I]nternet [backbone] link." Id. at 202, 209 (internal quotation marks and citation omitted). Three factual allegations, accepted as true as required at the motion to dismiss stage, made the Wikimedia Allegation plausible: (i) "Wikimedia's communications almost certainly traverse every international [Internet] backbone link connecting the United States with the rest of the world[,]" (ii) "the NSA has confirmed that it conducts Upstream surveillance at more than one point along the [I]nternet backbone[,]" and (iii) "the government, for technical reasons[,] ... must be copying and reviewing all the international text-based communications that travel across a given [Internet backbone] link upon which it has installed surveillance equipment." Id. at 210-11 (internal quotation marks and citations omitted).

Importantly, the Fourth Circuit rejected the "Dragnet Allegation", that is the allegation "that[,] in the course of conducting Upstream surveillance[,] the NSA is intercepting, copying, and reviewing substantially all text-based communications entering and leaving the United States, including" those of the nine plaintiffs. Id. at 202 (internal quotation marks and citation omitted). Plaintiffs alleged the following facts in support of the Dragnet Allegation: (i) "the NSA has a strong incentive to intercept communications at as many [Internet] backbone chokepoints as possible, and indeed must be doing so at many different [Internet] backbone chokepoints," (ii) "the technical rules governing online communications make this conclusion especially true," and (iii) "a New York Times article asserts that the NSA is temporarily copying and then sifting through the contents of what is apparently most e-mails and other text-based communications that cross the [U.S.] border." Id. at 213 (internal quotation marks and citations omitted). The Fourth Circuit concluded that the Dragnet Allegation failed to establish standing because it did "not contain enough well-pleaded facts entitled to the presumption of truth." Id. at 200. As such, although Wikimedia pled sufficient facts to establish standing at the motion to dismiss stage, the other plaintiffs did not. Id. at 200. Thus, Wikimedia is the only remaining plaintiff.

On remand, an Order issued on October 3, 2017 directing the parties to conduct a limited five-month period of jurisdictional discovery. See ECF Nos. 117, 123. Both sides took depositions and served requests for written discovery and production of documents. Defendants objected to 53 of Wikimedia's 84 discovery requests on the ground that responses to the requests would reveal classified information protected by the common law state secrets privilege and related statutory privileges. Thereafter, the DNI formally asserted the state secrets privilege and the statutory privilege set forth in 50 U.S.C. § 3024(i)(1).16 Defendants stated that the information Wikimedia sought, if disclosed, reasonably could be expected to result in exceptionally grave damage to U.S. national security.17 Wikimedia subsequently moved to compel production of the documents. On August 20, 2018, an Order and Memorandum Opinion issued, concluding that defendants satisfied the procedural requirements necessary to invoke the state secrets privilege, that the information sought to be protected qualified as privileged under the state secrets doctrine, and that therefore, Wikimedia's motion to compel must be denied. Wikimedia Found. v. Nat'l Sec. Agency, 335 F.Supp.3d 772, 790 (D. Md. 2018). Accordingly, the parties continued jurisdictional discovery, limited to information not protected by the state secrets privilege.

Defendants now seek summary judgment on the ground that Wikimedia lacks Article III standing to contest the legality of the NSA's Upstream surveillance program, or alternatively, that if there is a genuine issue of material fact as to the three essential elements of the Wikimedia Allegation articulated in the Fourth Circuit's remand order, the state secrets doctrine operates to preclude further litigation of Wikimedia's standing and thus requires entry of judgment in defendants' favor.

III.

Summary judgment is appropriate only where there are no genuine disputes of material fact. Rule 56, Fed. R. Civ. P. Accordingly, the material facts as to which no genuine dispute exists must first be identified. Defendants set out their statement of material facts in their brief in support of summary judgment, as required by the local rules. Plaintiff, in addition to responding to defendants' statement of material facts as required by the local rules, also offered their own separate statement of material facts in their brief in opposition to summary judgment. Neither the local rules of the District of Maryland nor the Eastern District of Virginia require plaintiff, as the non-moving party, to set forth a statement of material facts. See generally D. Md. Local Rules; E.D. Va. Local Civ. R. 56(B). In the interest of completeness, however, and because each party has responded to the other party's statement of material facts, all facts, and disputes as to those facts, have been considered in deriving from the record the following undisputed material facts.

IV.

Summary judgment is appropriate when there is "no genuine issue as to any material fact" and based on those undisputed facts the moving party "is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To serve as a bar to summary judgment, facts must be "material," which means that the disputed fact "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," there can be no genuine issue as to any material fact. Celotex Corp. 477 U.S. at 322, 106 S.Ct. 2548.

Article III limits the jurisdiction of federal courts to actual "Cases" or "Controversies." See U.S. Const. art. III, § 2, cl. 1. As the Supreme Court has made clear, one "essential and unchanging part of the case-or-controversy requirement" is that a plaintiff must establish Article III standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112' S.Ct. 2130, 119 L.Ed.2d 351 (1992). A plaintiff establishes Article III standing by showing that he, she, or it seeks relief from an injury that is "concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling." Clapper v. Amnesty Int'l USA, 568 U.S. 398, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) (quoting Monsanto Co. v. Geerston Seed Farms, 561 U.S. 139, 149, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010)). In other words, a plaintiff must establish (1) an injury-in-fact; (2) a casual connection between the injury and the alleged conduct; and (3) the redressability of the injury by a court.

To establish injury-in-fact, the alleged injury must be "real and immediate," not "conjectural or hypothetical." City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). The Supreme Court has "repeatedly reiterated that `[a] threatened injury must be certainly impending to constitute injury in fact,' and that `[a]llegations of possible future injury' are not sufficient." Clapper, 133 S. Ct. at 1147 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)) (emphases in original). In some cases, injury-in-fact can also be established "based on a `substantial risk' that the harm will occur, which may prompt plaintiffs to reasonably [sic] incur costs to mitigate or avoid that harm."30 Id. at 1150 n. 5. Importantly, the standing inquiry is "especially rigorous when reaching the merits of the dispute would force [a court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional," particularly "in the fields of intelligence gathering and foreign affairs." Clapper, 133 S. Ct. at 1147.

Because standing is a threshold jurisdictional requirement, it may be attacked at any time, including at summary judgment. As the Supreme Court has made clear, each element of standing must be supported "in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130. Where, as here, standing is challenged at the summary judgment stage, "`the party invoking federal jurisdiction bears the burden of establishing' standing—and... such a party `can no longer rest on ... mere allegations, but must set forth by affidavit or other evidence specific facts'" to establish standing. Clapper, 133 S. Ct. at 1148-49 (quoting Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130).

Thus, if a plaintiff cannot set forth, by affidavit or other evidence that will be in admissible form at trial, specific facts sufficient to show a genuine issue for trial on standing, then Rule 56(c) mandates entry of summary judgment against the plaintiff. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548.

V.

At this stage of the litigation, Wikimedia must present specific facts, supported by admissible record evidence, that are sufficient to show a genuine issue for trial on Wikimedia's Article III standing. In other words, Wikimedia must present specific facts which show that defendants, through the Upstream surveillance program, have copied and collected Wikimedia's international Internet communications, or that such collection is certainly impending, or that there is a substantial risk that collection will occur such that Wikimedia must incur costs to avoid collection.31

Both parties have focused their discussion of Wikimedia's standing on the three prongs necessary to establish the Wikimedia Allegation,32 which were enumerated in the Fourth Circuit's remand order in this case. See Wikimedia Found., 857 F.3d at 210-11. The three prongs are: (A) Wikimedia's communications almost certainly traverse every international Internet backbone link connecting the United States with the rest of the world; (B) the NSA conducts Upstream surveillance at one or more points along the Internet backbone; and (C) the NSA, for technical reasons, must be copying and reviewing all the text-based communications that travel across a given Internet backbone link upon which it conducts Upstream surveillance. Together, these three prongs would establish that the NSA has copied and collected some of Wikimedia's communications in the course of the NSA's Upstream surveillance program, thereby providing Wikimedia standing to sue here.

The sufficiency of the evidence with respect to each of these prongs is discussed in detail below. The summary judgment record contains specific facts which show no genuine dispute as to the veracity of the first two prongs of the Wikimedia Allegation. With respect to the third prong, however, the summary judgment factual record contains specific facts that establish, without a genuine dispute of material fact, that the NSA, in the course of Upstream surveillance, does not need to be copying any of Wikimedia's communications as a technological necessity. Thus, the summary judgment record does not contain the facts necessary for Wikimedia to establish standing at summary judgment via the Wikimedia Allegation.

A.

The first prong of the Wikimedia Allegation is that Wikimedia's communications almost certainly traverse every international Internet backbone link connecting the United States with the rest of the world.

Wikimedia primarily supports this contention through the declarations of Scott Bradner, plaintiff's Internet expert.33 Mr. Bradner states that "it is virtually certain that Wikimedia's international communications traverse every circuit carrying public Internet traffic on every international cable connecting the U.S. to other countries." Bradner Decl. ¶ 6(d), ECF No. 168-2. Mr. Bradner supports this conclusion with evidence of the volume and global distribution of Wikimedia's communications and the relatively few international circuits connecting the U.S. to other countries. Id. at ¶¶ 346-47, 201-05, 209, 218, 220. Thus, Mr. Bradner concludes, to a virtual certainty, that every international fiber-optic cable that transports Internet communications between the U.S. and the rest of the world transports at least some of Wikimedia's international communications.

Defendants have not disputed this fact. See Defs.' Brief in Support of Motion for Summary Judgment, Dkt. 162 at 1 (referring to Wikimedia's standing argument as a "one-legged stool" and taking issue with the other two prongs of Wikimedia's standing argument, but not with the argument that Wikimedia's communications traverse every international Internet backbone link).34

Thus, there is no genuine dispute between the parties in the summary judgment record that Wikimedia's communications almost certainly traverse every international Internet backbone link connecting the United States with the rest of the world. Wikimedia has presented specific facts, supported by the conclusion of Mr. Bradner, that establish the first prong of the Wikimedia Allegation.

B.

The second prong of the Wikimedia Allegation is that the NSA conducts Upstream surveillance at one or more international Internet backbone links, all of which, as established in the first prong, some of Wikimedia's communications traverse.

Wikimedia primarily relies upon a sentence in a redacted 2011 FISC Opinion and on language describing the Internet backbone in the PCLOB 702 Report to establish this prong. The sentence in the 2011 FISC Opinion states: the "NSA will acquire a wholly domestic `about' communication if the transaction containing the communication is routed through an international Internet link being monitored by NSA or is routed through a foreign server." [Redacted], 2011 WL 10945618, at *15. Defendants' Rule 30(b)(6) witness confirmed the accuracy of this statement as of October 2011.35 See R. Richards Dep. at 160:4-17. Thus, as a statement of a party opponent, this statement is admitted as part of the summary judgment record.

Based on this admission, plaintiff contends that Upstream surveillance involves monitoring "international Internet link[s]." Defendants, however, assert that the meaning of the term "international Internet link" is protected by the state secrets privilege and cannot be confirmed or denied by defendants. Defendants' Rule 30(b)(6) witness testified that "unlike the other words you had me go through in terms of definitions ... [which were] what a teleco[m] expert would" provide, the "NSA has an understanding of this term [international Internet link] that is specific to how [the FISC Judge] described it, but it's classified to provide any further information." R. Richards Dep. at 160:19-161:22. Thus, the differences between the term "international Internet link" and the term "circuits," which is a colloquial term used in the telecom industry and is used to describe where along the Internet backbone Upstream collection occurs in the PCLOB 702 Report,36 cannot be known without violation of the state secrets privilege.37 See PCLOB 702 Report, at 35-37. Moreover, that this statement was accurate on October 3, 2011 says nothing of this statement's accuracy either in 2015, when this suit was filed, or today.38

Rather than belabor the squabble between the parties about the meaning of this particular term from a 2011 FISC Opinion, a different, admissible record document sheds significantly more light on this prong of the Wikimedia Allegation. The Public Declaration of Daniel R. Coats, Director of National Intelligence ("DNI"), states that the United States Intelligence Community "has publicly acknowledged that Upstream surveillance is conducted on one or more points on the Internet backbone" and that the United States Intelligence Community "has publicly acknowledged that ... NSA is monitoring at least one circuit carrying international Internet communications." Pub. Decl. of Daniel R. Coats, DNI, ¶¶ 30, 37, ECF No. 138-2.39 In other words, the DNI, who oversees the United States Intelligence Community, has admitted, in the course of this litigation, that the NSA conducts Upstream surveillance on at least one point on the Internet backbone and, to the extent the terms Internet backbone and international Internet circuit are not interchangeable, on at least one circuit carrying international Internet communications.40

Accordingly, the undisputed summary judgment record adequately establishes that the NSA monitors at least one circuit carrying international Internet communications in the course of Upstream surveillance and that Wikimedia's communications traverse every circuit carrying international Internet communications from the United States to the rest of the world. Thus, Wikimedia has established the first two prongs of the Wikimedia Allegation with the support of admissible record evidence and without a genuine dispute as to any material fact.

C.

With respect to the third prong, however, the summary judgment factual record contains specific facts that establish, without a genuine dispute of material fact, that it is not a technological necessity that the NSA has copied or collected some of Wikimedia's communications over the one circuit that the NSA admits monitoring to conduct Upstream surveillance.41 Accordingly, the summary judgment record does not contain the facts necessary for Wikimedia to establish standing at summary judgment via the Wikimedia Allegation.

To address this prong of the Wikimedia Allegation, both parties have submitted extensive expert reports. The government's expert, Dr. Henning Schulzrinne,42 has provided expert testimony that details a method of collecting Internet communications, which could, hypothetically, avoid collecting any of Wikimedia's communications. Dr. Schulzrinne Decl. ¶ 77-88. Thus, Dr. Schulzrinne concludes that the NSA, via Upstream surveillance, does not have to be collecting any of Wikimedia's communications "as a matter of technological necessity." Dr. Schulzrinne 2d Decl. ¶ 2. Importantly, Dr. Schulzrinne does not provide testimony about the actual operational details of Upstream surveillance because the actual operational details of Upstream surveillance are classified and protected by the state secrets privilege, and thus, Dr. Schulzrinne does not know any of the classified operational details. Id. at ¶ 3-4.

On the other side, Wikimedia's expert, Scott Bradner, has provided expert testimony in which he opines, based on a combination of technical and practical factors, that the NSA "most likely" copies all communications transported across an international Internet circuit before filtering any of the communications. Bradner Decl. ¶ 282. As a result, Mr. Bradner concludes that "even if the NSA were monitoring only a single circuit under [U]pstream collection, it would be copying and reviewing at least some of Wikimedia's communications." Id. at ¶ 353.

Each expert unsurprisingly takes issue with the other's findings. Dr. Schulzrinne claims that Mr. Bradner has provided "no support, and certainly none based in Internet technology and engineering, for concluding that the NSA `almost certainly' (Bradner Decl. ¶ 6(a)) copies and scans all communications traversing any circuit it monitors, including Wikimedia's." Dr. Schulzrinne 2d Decl. ¶ 5. And Mr. Bradner claims that Dr. Schulzrinne's conclusion that the NSA does not have to be collecting any of Wikimedia's communications as a matter of technological necessity "is simply implausible as a practical matter given everything that is known about [U]pstream collection." Bradner Decl. ¶ 362. For the reasons that follow, this dispute does not present a triable issue of fact.

To begin with, it is necessary to address the practical grounds on which Mr. Bradner reaches his conclusions. Mr. Bradner contends that the NSA could not accomplish its stated goal of "comprehensively acquir[ing] communications that are sent to or from its targets" through Upstream surveillance without first copying all international communications transported over the circuit(s) that the NSA is monitoring. Id. at ¶ 333 (quoting PCLOB 702 Report, at 10, 123, 143 (emphasis added)); Id. at ¶ 335. To accomplish this goal, Mr. Bradner opines that the NSA is "most likely" copying all of the communications traveling across a circuit before later filtering those communications based on the NSA's targeted selectors. Id. at ¶¶ 282, 289. As the basis for this opinion, Mr. Bradner claims (i) that any other method would require the NSA to share sensitive information about its targets and/or filtering criteria with an assisting provider, which the NSA would prefer not to do, (ii) that any other method would require the NSA to place an NSA-operated device into the heart of an ISP's network, which the NSA would prefer not to do, and (iii) that the NSA has no operational incentive to reduce the number of communications it scans for selectors. Id. at ¶¶ 283-88.

None of Mr. Bradner's bases for this opinion, however, have a non-speculative foundation in technology. Instead, speculative assumptions about the NSA's surveillance practices and priorities and the NSA's resources and capabilities form the basis for Mr. Bradner's opinion in this regard.43 See Dr. Schulzrinne 2d Decl. ¶ 73. Simply put, Mr. Bradner does not know what the NSA prioritizes in the Upstream surveillance program because that information is classified, and therefore Mr. Bradner has no knowledge or information about it. As a result, Mr. Bradner's opinions as to these specific propositions are inadmissible pursuant to Rule 702, Fed. R. Evid., and the standards articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).44

Moreover, even if Mr. Bradner's opinions on these specific propositions were admissible, any conclusions drawn from those opinions would be barred by the state secrets doctrine, as further discussed infra Part VI. No matter how intuitively appealing Mr. Bradner's opinions about the NSA's operational priorities may seem, courts have consistently recognized that "judicial intuition" about such propositions "is no substitute for [the] documented risks and threats posed by the potential disclosure of national security information." Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1203 (9th Cir. 2007). Importantly, defendants cannot effectively defend themselves against Mr. Bradner's speculations without disclosing information about the operational details of the NSA's Upstream surveillance program. But defendants have thoroughly documented the risks of such a disclosure in the classified declaration, explaining that to reveal such facts regarding the operational details of the Upstream surveillance collection process, even considering the public disclosures made to date, would provide insight into the structure and operations of the Upstream surveillance program and in so doing, undermine the effectiveness of this important intelligence method. Thus, even if Mr. Bradner's conclusions, built off assumptions about the NSA's operational goals from the NSA's limited public disclosures, were admissible as expert opinions, the state secrets doctrine would bar any further litigation of this prong of Wikimedia's standing argument, as further discussed infra Part VI.

Analysis of the third prong of the Wikimedia Allegation, however, does not end with dismissal of Mr. Bradner's non-technical assumptions. Each expert has also presented technical arguments for and against the proposition that the NSA must be collecting at least some of Wikimedia's communications at the circuit(s) monitored pursuant to the Upstream surveillance program.

Dr. Schulzrinne explains how the NSA, using the technique of "traffic mirroring" in a specific manner,45 could conduct Upstream surveillance on an international Internet circuit "without intercepting, copying, reviewing, or otherwise interacting with [the] communications of Wikimedia." Dr. Schulzrinne Decl. ¶ 77. To begin with, Wikimedia has been allocated a number of static IP addresses. Id. at ¶ 80. A "static" IP address is an IP address that is assigned on a permanent basis from the appropriate regional Internet registry. See id. at ¶ 32-33. Static IP addresses are generally assigned to large enterprises on the Internet so that users around the world have consistent access to their websites. Public databases record, with very high accuracy, which IP address blocks are used by what entities. Id. Thus, any member of the public can ascertain all of the IP addresses assigned to Wikimedia.

Through a process of "blacklisting" Wikimedia's IP addresses, the NSA could conduct Upstream surveillance without receiving access to any of Wikimedia's communications. Id. at ¶ 82. To do so, the NSA could blacklist all of Wikimedia's IP addresses using an access control list, a list employed in the traffic mirroring process that determines which packets carrying Internet communications will be copied and collected at a certain circuit on the Internet backbone. By blacklisting Wikimedia's IP addresses, all Internet communications except those containing Wikimedia's blacklisted IP addresses would be copied and collected by the NSA. Importantly, this hypothetical does not propose that the NSA is copying all Internet communications other than Wikimedia's, but rather states that, as a technical matter, the NSA could blacklist certain high-frequency, low-interest IP addresses to minimize the collection of communications of little interest to the NSA and that Wikimedia's IP addresses could be high-frequency, low-interest IP addresses to the NSA. Thus, strictly considering the technological limitations of copying Internet communication in transit, it is possible that the NSA has not copied and collected any of Wikimedia's communications despite monitoring an international Internet circuit that transmits some of Wikimedia's communications.46

In response, Mr. Bradner finds this hypothetical "simply implausible" as a practical matter given everything that is known about Upstream surveillance, although Mr. Bradner does admit that selective collection is technologically possible. Bradner Decl. ¶ 362, 272(b), 280-81, 299, 325, 366. The foundation for Mr. Bradner's response is that the NSA has disclosed to the public that Upstream surveillance operates by identifying "selectors," the specific means by which the targets communicate, such as email addresses or telephone numbers.47 Because the NSA cannot know in advance which communications contain selectors, Mr. Bradner contends, the NSA must first copy all communications before scanning any of them for selectors. Bradner Decl. ¶ 333, 301.

Despite Mr. Bradner's arguments to the contrary, the traffic mirroring hypothetical proposed by Dr. Schulzrinne does not contradict the government's public disclosures about Upstream surveillance. Importantly, the government has described Upstream surveillance as involving three steps—(1) filtering, (2) scanning, and (3) ingesting.48 The whitelisting and blacklisting process of traffic mirroring proposed by Dr. Schulzrinne would occur at the first step in the NSA's collection process, the filtering, prior to any copying or scanning. Thus, under Dr. Schulzrinne's hypothetical, the first step, filtering, would involve a combination of whitelisting and blacklisting to exclude wholly domestic communications and other low interest communications, and Wikimedia's communications may qualify as low interest communications that the NSA filters out.49 Second, and only after filtering, the NSA would scan the remaining communications for "selectors," which could result in the collection of both communications to or from a targeted selector and about a targeted selector. See Dr. Schulzrinne 2d Decl. ¶ 50-52. This second step described in the government's public disclosures is the step on which Mr. Brander focuses. Given the distinction between the first two steps, Dr. Schulzrinne's hypothetical is consistent with government's public disclosures about Upstream surveillance. Moreover, the hypothetical, regardless of whether it is actually how the NSA conducts Upstream surveillance, does show that there is a technological method by which the NSA could conduct Upstream surveillance on a circuit transporting International internet communications without copying, collecting, or otherwise reviewing any of Wikimedia's communications that traverse that path.

But this does not end the analysis, for there is a technological hurdle that remains. Even if the NSA used the whitelisting and blacklisting techniques proposed by Dr. Schulzrinne to filter the communications it collected via Upstream surveillance, Mr. Bradner maintains that there are three scenarios in which Wikimedia's communications would still be copied and scanned by the NSA. Bradner Decl. ¶¶ 367(b), 370. In these three specific scenarios—namely (i) communications contained within a multi-communication transaction,50 (ii) emails to or from Wikimedia involving a person located abroad who is using an email service located in the U.S.,51 or (iii) a person located abroad who accesses Wikimedia's websites through a U.S.-based Virtual Private Network (VPN),52 Wikimedia's IP address would not appear as the source or destination IP address on the packet header traversing the international Internet circuit into or out of the U.S. See Bradner Decl. ¶ 367(b)(1)-(3); Dr. Schulzrinne 2d Decl. ¶ 77-87. Thus, these communications would not be blocked by the NSA's hypothetical blacklist of Wikimedia's IP addresses because the communications would not contain Wikimedia's IP address in the packet header, despite involving a Wikimedia communication.

Dr. Schulzrinne admits that each of these scenarios is "theoretically possible" but "could come to pass only in the uncertain event that particular conditions are met." Dr. Schulzrinne 2d Decl. ¶ 77. For communications in each of these three scenarios to be collected by the NSA through Upstream surveillance, at least four conditions would have to be met,53 none of which Wikimedia has established as to any of their communications in this case. Specifically, for Wikimedia communications to exist in either of the first two scenarios, an email user in a foreign location must be downloading emails from a server located in the United States (such that the communication would traverse an international Internet circuit monitored by the NSA) and the email user must be sending email to and/or receiving email from Wikimedia. Id. at ¶¶ 78, 81. Wikimedia has not presented evidence of any such subset of its communications.54 For Wikimedia's communications to exist in the third scenario, a user of a Virtual Private Network (VPN) that is based in the United States must use that VPN while abroad to visit one of Wikimedia's websites, and the NSA must monitor the international Internet circuit that transmits that communication from the user abroad to the domestic VPN. Again, Wikimedia has not presented evidence of any such subset of its communications. As a result, satisfaction of the chain of conditions necessary to establish that the NSA collected Wikimedia's communications in one of these three circumstances is too speculative to establish standing. See Clapper v. Amnesty Int'l USA, 568 U.S. 398, 133 S.Ct. 1138, 1148, 1150, 185 L.Ed.2d 264 (2013) (holding that a speculative chain consisting of five contingencies was insufficient to establish standing). Thus, although it is possible that such communications exist,55 the summary judgment record does not contain any evidence that such communications actually exist, a requirement at this stage of the litigation. See Clapper, 133 S. Ct. at 1148-49.

In sum, the undisputed summary judgment record does not establish that the NSA has copied any of Wikimedia's international Internet communications in the course of Upstream surveillance, or that such collection is certainly impending, or that there is a substantial risk that collection will occur such that Wikimedia must incur costs to avoid collection. Specifically, the summary judgment record establishes that it is not a technological necessity that the NSA must copy all of the text-based Internet communications traversing a circuit that the NSA monitors while conducting Upstream surveillance. The NSA could, hypothetically, utilize a process of whitelisting and blacklisting to filter out low-interest Internet communications, including Wikimedia's communications, prior to scanning the Internet communications for targeted selectors. At most, there is a genuine dispute of material fact as to whether the NSA can conduct Upstream surveillance without copying Wikimedia's communications, if any, that (i) are contained within a multi-communication transaction, (ii) are emails to or from Wikimedia involving a person located abroad using an email service located in the U.S., or (iii) involve a person located abroad accessing Wikimedia's websites through a U.S.-based Virtual Private Network (VPN) and that traverse an NSA-monitored circuit. To the extent there is a genuine issue of material fact with respect to the NSA's collection of this currently unidentified subset of Wikimedia's international communications, that issue cannot be further litigated given the state secrets doctrine, as further discussed infra Part VI.

VI.

Even assuming arguendo that, there is a genuine dispute of material fact as to the third prong of the Wikimedia Allegation, the question remains as to how the matter should proceed consistent with Supreme Court and Fourth Circuit precedent regarding the state secrets doctrine. Wikimedia's standing cannot be fairly litigated any further without disclosure of state secrets absolutely protected by the United States' privilege. For Wikimedia to litigate the standing issue further, and for defendants to defend adequately in any further litigation, would require the disclosure of protected state secrets, namely details about the Upstream surveillance program's operations. For the reasons that follow, therefore, the standing issue cannot be tried, or otherwise further litigated, without risking or requiring harmful disclosures of privileged state secrets, an outcome prohibited under binding Supreme Court and Fourth Circuit precedent. Thus, the case must be dismissed, and judgment must be entered in favor of defendants.

A.

It is necessary first to review the well-settled Supreme Court and Fourth Circuit precedent concerning the state secrets doctrine. Settled Supreme Court and Fourth Circuit precedent make clear that "[u]nder the state secrets doctrine, the United States may prevent the disclosure of information in a judicial proceeding if `there is a reasonable danger' that such disclosure `will expose ... matters which, in the interest of national security should not be divulged.'" Abilt v. CIA, 848 F.3d 305, 310-11 (4th Cir. 2017) (quoting El-Masri v. United States, 479 F.3d 296, 302 (4th Cir. 2007)) (quoting United States v. Reynolds, 345 U.S. 1, 10, 73 S.Ct. 528, 97 S.Ct. 727 (1953)). In this regard, the Fourth Circuit has recognized that the state secrets doctrine "performs a function of constitutional significance, because it allows the executive branch to protect information whose secrecy is necessary to its military and foreign-affairs responsibilities." Id. at 312 (quoting El-Masri, 479 F.3d at 303).

The Fourth Circuit has mandated a three-step analysis for resolution of the state secrets question:

Abilt, 848 F.3d at 311 (quoting El-Masri, 479 F.3d at 304). Previously, an Order and Memorandum Opinion issued in this case, which concluded that defendants satisfied the procedural requirements necessary to invoke the state secrets privilege, that the information sought to be protected qualified as privileged under the state secrets doctrine, and that therefore, Wikimedia's motion to compel certain information in discovery had to be denied. Wikimedia Found. v. Nat'l Sec. Agency, 335 F.Supp.3d 772, 790 (D. Md. 2018). The seven categories of information determined to be privileged under the state secrets doctrine in relation to plaintiff's motion to compel discovery are the same categories of information at issue for plaintiff to establish standing via further litigation of this case.56 Thus, as already established in the previous Memorandum Opinion and Order, the first two steps of the state secrets analysis have been resolved, and the step that remains is "how the matter should proceed in light of the successful privilege claim." Abilt, 848 F.3d at 311.

B.

How the matter should proceed turns on the centrality of the privileged information to the issue at hand. Whether the NSA has copied and collected any of Wikimedia's international Internet communications, or such collection is certainly impending, or there is a substantial risk that collection will occur such that Wikimedia must incur costs to avoid collection, is the threshold issue for Wikimedia to establish standing in this litigation. Where, as here, the privileged information is so central to the subject matter of the litigation, dismissal is the appropriate, and only available, course of action.

As the Fourth Circuit has made quite clear, "both Supreme Court precedent and our own cases provide that when a judge has satisfied himself [or herself] that the dangers asserted by the government are substantial and real, he [or she] need not—indeed, should not—probe further." Sterling v. Tenet, 416 F.3d 338, 345 (4th Cir. 2005). Moreover, Fourth Circuit precedent establishes that where "circumstances make clear that sensitive military secrets will be so central to the subject matter of the litigation that any attempt to proceed will threaten disclosure of the privileged matters, dismissal is the appropriate remedy." El-Masri v. Tenet, 437 F.Supp.2d 530, 538-39 (E.D. Va. 2006) (quoting Sterling, 416 F.3d at 348), aff'd, 479 F.3d 296 (4th Cir. 2007).57

As such, "[i]f a proceeding involving state secrets can be fairly litigated without resort to the privileged information, it may continue." El-Masri, 479 F.3d at 306. On the other hand, "a proceeding in which the state secrets privilege is successfully interposed must be dismissed if the circumstances make clear that privileged information will be so central to the litigation that any attempt to proceed will threaten that information's disclosure." Id. at 308 (citations omitted).58 Such a decision is never taken lightly, as "dismissal is appropriate `[o]nly when no amount of effort and care on the part of the court and the parties will safeguard privileged material.'" Sterling, 416 F.3d at 348 (quoting Fitzgerald v. Penthouse Int'l, Ltd., 776 F.2d 1236, 1244 (4th Cir. 1985)) (alteration in original). Nonetheless, "dismissal follows inevitably when the sum and substance of the case involves state secrets." Id. at 347. In this regard, the Fourth Circuit has identified three examples of circumstances in which the privileged information is so central to the litigation that dismissal is required. First, "dismissal is required if the plaintiff cannot prove the prima facie elements of his or her claim without privileged evidence." Abilt, 848 F.3d at 313-14 (citing Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 281 (4th Cir. 1980) (en banc) (per curiam)). Second, "even if the plaintiff can prove a prima facie case without resort to privileged information, the case should be dismissed if `the defendants could not properly defend themselves without using privileged evidence.'" Id. at 314 (quoting El-Masri, 479 F.3d at 309). Third, "dismissal is appropriate where further litigation would present an unjustifiable risk of disclosure" of state secrets. Id. (citing El-Masri, 479 F.3d at 308).

C.

Given these principles and given "the delicate balance to be struck in applying the state secrets doctrine," it is appropriate to analyze the litigation at hand, namely the centrality of state secrets to Wikimedia's standing. El-Masri, 479 F.3d at 308. To establish standing, Wikimedia must prove (1) injury-in-fact, (2) causation, and (3) redressability. Through an extensive jurisdictional discovery process, Wikimedia has established that the NSA monitors at least one circuit carrying international Internet communications in the course of Upstream surveillance and that Wikimedia's communications traverse every circuit carrying international Internet communications from the United States to the rest of the world. Importantly, this extensive jurisdictional discovery process has resulted in the compilation of a voluminous record, including hundreds of pages of expert reports, government disclosures and declassified documents regarding Upstream surveillance, Rule 30(b)(6) testimony from an NSA representative, and extensive interrogatory responses from the parties. Thus, Wikimedia has been granted the opportunity to establish its standing without resort to privileged information, and Wikimedia has made significant progress on that front.

Nonetheless, the summary judgment record does not establish that the NSA has copied or collected any of Wikimedia's communications via Upstream surveillance conducted on an NSA-monitored circuit, that such collection is certainly impending, or that there is a substantial risk that collection will occur such that Wikimedia must incur costs to avoid collection. Wikimedia has been unable to make this showing because it is not true, as a technological necessity, that the NSA must be copying every text-based communication that traverses a circuit that the NSA monitors. Indeed, Dr. Schulzrinne has convincingly demonstrated that there are technologically feasible methods by which the NSA could hypothetically operate Upstream surveillance that would result in the NSA not copying or collecting any of Wikimedia's communications. Thus, the undisputed summary judgment record establishes that Wikimedia does not have Article III standing sufficient to survive summary judgment.

Even if Wikimedia could establish a prima facie case of its standing based solely on the public, unclassified record, which it has not been able to do thus far in this case, the state secrets doctrine still requires dismissal because the defendants cannot properly defend themselves without using privileged evidence. The Fourth Circuit "ha[s] consistently upheld dismissal when the defendants could not properly defend themselves without using privileged information." Abilt v. CIA, 848 F.3d 305, 316 (4th Cir. 2017). As in El-Masri, "virtually any conceivable response to [Wikimedia's] allegations [that the NSA has copied and collected some of Wikimedia's international Internet communications] would disclose privileged information." El-Masri, 479 F.3d at 310. Defendants have provided a detailed and persuasive explanation, in more than 60 pages of classified declarations, that disclosure of the entities subject to Upstream surveillance activity and the operational details of the Upstream collection process would (i) undermine ongoing intelligence operations, (ii) deprive the NSA of existing intelligence operations, and significantly, (iii) provide foreign adversaries with the tools necessary both to evade U.S. intelligence operations and to conduct their own operations against the United States and its allies. Wikimedia Found. v. Nat'l Sec. Agency, 335 F.Supp.3d 772, 789 (D. Md. 2018). Accordingly, defendants could not properly defend themselves in any further litigation of Wikimedia's standing, and thus, the case must be dismissed.

Moreover, if the issue of Wikimedia's standing were further adjudicated, "the whole object of the [adjudication] ... [would be] to establish a fact that is a state secret," presenting an unjustifiable risk of disclosing privileged information. Sterling, 416 F.3d at 348. Courts have concluded that where, as here, the information sought to be disclosed involves the identity of parties whose communications have been acquired, this information is properly privileged. See Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1203-04 (9th Cir. 2007) (finding that the fact of a plaintiff's surveillance by the NSA was covered by the state secrets privilege); Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir. 1978) (upholding assertion of state secrets privilege with respect to "the identity of particular individuals whose communications have been acquired"). Accordingly, because the privileged information, namely the operational details of the Upstream collection process and whether any of Wikimedia's international Internet communications have been copied or collected by the NSA, is so central to the litigation of Wikimedia's standing, the case must be dismissed, and judgment must be entered in favor of defendants.

VII.

To avoid the conclusion that the case must be dismissed, Wikimedia revives its argument that 50 U.S.C. § 1806(f) displaces the state secrets doctrine in cases challenging electronic surveillance pursuant to FISA and provides for in camera review of the materials related to the NSA's Upstream surveillance program. This argument, however, has already been considered and rejected in this litigation. See Wikimedia Found. v. Nat'l Sec. Agency, 335 F.Supp.3d 772, 786 (D. Md. 2018). Specifically, the "§ 1806(f) procedures do not apply where, as here, a plaintiff has not yet established that it has been the subject of electronic surveillance" as required by the statute. Id. at 780. Nonetheless, plaintiff raises two additional arguments as to why in camera review pursuant to § 1806(f) is appropriate in this case: (i) plaintiff has now established a genuine dispute of material fact concerning its status as an "aggrieved person"59 before invoking FISA's procedures and (ii) the Ninth Circuit recently held that § 1806(f) displaces the state secrets privilege in an affirmative legal challenge to electronic surveillance pursuant to FISA. See Fazaga v. Fed. Bureau of Investigation, 916 F.3d 1202 (9th Cir. 2019).

First, plaintiff has not established a genuine dispute of material fact concerning its status as an aggrieved person, i.e., that plaintiff's communications have been the subject of electronic surveillance, as discussed supra Part V.C. As previously explained, "the text of § 1806(f) points persuasively to the conclusion that Congress intended § 1806(f) procedures to apply only after it became clear from the factual record that the movant was the subject of electronic surveillance." Wikimedia Found., 335 F. Supp. 3d at 781. To be sure, "affirmative government acknowledgement of surveillance of a specific target is not the only means by which a plaintiff can establish evidence of his or her `aggrieved person' status." Id. at 784. But here, despite the extensive jurisdictional discovery undertaken in this case, plaintiff has been unable to make a factual showing that Wikimedia was the subject of electronic surveillance using admissible record evidence. Thus, the § 1806(f) in camera review procedures remain inapplicable to this case.

In addition, no binding authority establishes that § 1806(f)'s review procedures displace the state secrets doctrine even if a plaintiff survived summary judgment on the issue of whether plaintiff has been the target of electronic surveillance, which again is not the case here. Specifically, in ACLU Foundation of Southern California v. Barr, 952 F.2d 457 (D.C. Cir. 1991), the D.C. Circuit reasoned that "legitimate concerns about compromising ongoing foreign intelligence investigations" are more properly considered at the summary judgment stage, not upon the pleadings. Id. at 469. In doing so, the D.C. Circuit only considered what a party must show to establish his or her "aggrieved person" status and therefore invoke § 1806(f) review. Simply put, the D.C. Circuit did not consider whether or when § 1806(f) in camera review is inappropriate or unnecessary because of the state secrets doctrine.

Moreover, the Ninth Circuit's opinion in Fazaga does not hold that § 1806(f) displaces the state secrets doctrine in this case, despite plaintiff's arguments to the contrary. The Ninth Circuit reasoned in Fazaga that § 1806(f)'s procedures displace a dismissal remedy for the Reynolds state secrets doctrine only where § 1806(f)'s procedures apply.60 Fazaga, 916 F.3d at 1234. Specifically, the Ninth Circuit held that for FISA's § 1806(f) procedures to apply, "[p]laintiffs must satisfy the definition of an `aggrieved person.'" Id. at 1238. In this case, as previously discussed at length, Wikimedia has not established it is an "aggrieved person" as defined in § 1801(k). See Wikimedia Found. v. Nat'l Sec. Agency, 335 F.Supp.3d 772, 780, 786 (D. Md. 2018). Thus, § 1806(f) does not apply to this case, and dismissal on state secrets grounds is appropriate, as discussed supra Part VI.

Notably, the only court to address this issue post-Fazaga held that "where the very issue of standing implicates state secrets," the holding in Fazaga and § 1806(f) do not foreclose "dismissing [the case] on state secrets grounds" at the summary judgment stage of the litigation.61 Jewel v. Nat'l Sec. Agency, No. C 08-04373, at *24 (N.D. Cal. April 25, 2019), appeal docketed, No. 19-16066 (9th Cir. May 21, 2019). Accordingly, because plaintiff has not established it is an "aggrieved person" as defined in the statute, and hence § 1806(f) does not apply, and because the issue of standing in this case necessarily implicates state secrets, dismissal of the case is appropriate.

VIII.

To avoid dismissal of the litigation on state secrets grounds, Wikimedia has raised several additional standing arguments separate and apart from the Wikimedia Allegation—namely (i) Upstream surveillance has impaired Wikimedia's communications with its community members, (ii) Upstream surveillance has required Wikimedia to take costly protective measures, and (iii) Wikimedia has third-party standing to assert the rights of its users. Wikimedia's arguments fail as to each of these theories of standing for the reasons discussed below.

First, Wikimedia argues it has standing because Upstream surveillance has impaired Wikimedia's communications with its community members, as evidenced by a drop in the readership of certain Wikipedia pages. In Clapper and Laird, however, the Supreme Court unequivocally held that "[a]llegations of a subjective `chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm." Clapper v. Amnesty Int'l USA, 568 U.S. 398, 133 S.Ct. 1138, 1152, 185 L.Ed.2d 264 (2013) (quoting Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972)). To avoid the conclusion that any drop in readership is the result of a "subjective chill," Wikimedia relies upon a statistical analysis performed by Dr. Jonathon Penny, which concludes it is "highly likely" that "public awareness of NSA surveillance programs, including Upstream surveillance, ... ha[s] had a large-scale chilling effect on Wikipedia users" since June 2013. Dr. Jonathon Penney Decl. ¶ 10-11. But Dr. Penney's conclusion that Wikipedia's readership has suffered an actual chill as the result of Upstream surveillance is undermined for two principal reasons. First, Dr. Penney's data only covers a 32-month period which ends in August 2014, before this lawsuit was even filed. Thus, Dr. Penney's evidence, even if reliable, does not say anything about any ongoing harm suffered by Wikimedia that is traceable to Upstream surveillance. Second, these alleged readership effects were from public awareness of "media coverage of NSA surveillance" generally, not Upstream surveillance specifically. Id. at ¶ 26. Thus, Dr. Penney's findings do not demonstrate an ongoing and sustained drop in Wikimedia's readership stemming from the NSA's Upstream surveillance program.

Moreover, "a `chilling effect aris[ing] merely from the individual's knowledge that a governmental agency was engaged in certain activities or from the individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual'" is insufficient to establish standing.62 Clapper, 133 S. Ct. at 1152 (quoting Laird, 408 U.S. at 11, 92 S.Ct. 2318). This is exactly the situation here—Wikimedia claims that this decreased readership is a result of individual's fear that the government might be monitoring their Internet activity and might use that information at some later date. Moreover, the Supreme Court has specifically found that a claimed reluctance by third parties to communicate with a plaintiff, due to their subjective fears of surveillance, is not fairly traceable to the alleged surveillance, and is thus foreclosed as a basis for standing. Clapper, 133 S. Ct. at 1152 n.7. Accordingly, Wikimedia cannot establish standing under this theory given the Supreme Court's holdings in Clapper and Laird.

Second, Wikimedia argues it has standing because Upstream surveillance has required Wikimedia to take costly protective measures—namely, transitioning its Internet communications into encrypted formats such as HTTPS and IPSec, acquiring new technical infrastructure, and hiring a full-time engineer to manage the protective measures. The Supreme Court has already foreclosed this alternative theory of standing where, as here, a plaintiff has failed to establish that their communications have been collected by the government, or that such collection is certainly impending. Clapper, 133 S. Ct. at 1151. Applicable here is the Supreme Court's statement in Clapper that a plaintiff "cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending." Id.

Wikimedia attempts to distinguish this case from Clapper by arguing that the harm Wikimedia faces from Upstream surveillance is well-established, not some "hypothetical future harm." As discussed at length supra in Part V, however, the summary judgment record does not establish that Wikimedia's communications have been collected by the NSA during Upstream surveillance, or that such collection is certainly impending, or that there is a substantial risk that collection will occur such that Wikimedia must incur costs to avoid collection. Thus, any harm to Wikimedia from the Upstream surveillance program remains a purely hypothetical harm insufficient to establish standing. As the Supreme Court has sensibly observed, to find otherwise "would be tantamount to accepting a repackaged version of [plaintiff's] first failed theory of standing," namely the Wikimedia Allegation. Id. (citing Am. Civil Liberties Union v. Nat'l Sec. Agency, 493 F.3d 644, 655-56 (6th Cir. 2007)). Accordingly, Wikimedia's alleged expenditures to protect its communications from Upstream surveillance collection do not establish its standing.63

Third, Wikimedia argues it has third party standing to assert the rights of its users. In the Fourth Circuit, a plaintiff must demonstrate "(1) an injury-in-fact; (2) a close relationship between [itself] and the person whose right [it] seeks to assert; and (3) a hindrance to the third party's ability to protect his or her own interests" to "overcome the prudential limitation on third-party standing."64 Freilich v. Upper Chesapeake Health Inc., 313 F.3d 205, 215 (4th Cir. 2002) (citing Powers v. Ohio, 499 U.S. 400, 410-11, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991)). Wikimedia has met none of these requirements. As discussed at length supra in Part V, Wikimedia has been unable to establish injury-in-fact in this case. In addition, Wikimedia has not presented admissible evidence that establishes a "close relationship" between Wikimedia and its largely unidentified contributors.65 In fact, Wikimedia has only presented declarations from one single contributor who has edited Wikimedia's web projects while abroad, and this single contributor has stated that her "workload as a medical student" makes it "impossible" for her to bring a lawsuit as a plaintiff.66 Such "normal burdens of litigation," however, are insufficient to satisfy the third requirement that an obstacle exists that prevents the third party from bringing the lawsuit herself or himself.67 See Lawyers Ass'n v. Reno, 199 F.3d 1352, 1364 (D.C. Cir. 2000). Thus, Wikimedia has also failed to satisfy the third requirement to establish third-party standing. Accordingly, Wikimedia's third-party standing argument clearly fails.

For the reasons stated above, Wikimedia's three additional standing arguments clearly fail because Wikimedia has not established an injury-in-fact using admissible record evidence and Wikimedia has not satisfied the strict requirements to proceed on the basis of third-party standing.

IX.

In sum, Wikimedia has failed to present specific facts which show that defendants, through the Upstream surveillance program, have copied and collected Wikimedia's international Internet communications, that such collection is certainly impending, or that there is a substantial risk that collection will occur such that Wikimedia must incur costs to avoid collection. More specifically, the summary judgment record establishes that it is not a technological necessity that the NSA must copy all of the text-based Internet communications traversing a circuit that the NSA monitors while conducting Upstream surveillance. Thus, there is no genuine dispute of material fact that the NSA could conduct Upstream surveillance without collecting any of Wikimedia's communications, and Wikimedia has been unable to present specific facts that establish otherwise, largely because the necessary facts are protected by the state secrets privilege.

Moreover, even if Wikimedia had established a genuine issue of material fact as to whether the NSA has copied or collected any of its international Internet communications, which Wikimedia has not done on this record, further litigation of this matter is precluded by the state secrets doctrine, which has been properly invoked by defendants. The extensive jurisdictional discovery process in this case has made clear that the very issue of standing implicates state secrets and that despite plaintiff's valiant efforts, establishing standing solely on the basis of the public, unclassified record is not possible in this case. Pursuant to Supreme Court and Fourth Circuit precedent, at this stage of the litigation, namely summary judgment post-jurisdictional discovery, dismissal and entry of judgment in favor of defendants is the appropriate, and only available, remedy because the issue of standing in this case necessarily implicates state secrets.

It is important to acknowledge the unfortunate burden that this decision places on Wikimedia. See Abilt, 848 F.3d at 317; Sterling, 416 F.3d at 348; El-Masri, 479 F.3d at 313 ("As we have observed in the past, the successful interposition of the state secrets privilege imposes a heavy burden on the party against whom the privilege is asserted."). Wikimedia suffers dismissal of its claim "not through any fault of [its] own, but because [its] personal interest in pursuing [its] civil claim is subordinated to the collective interest in national security." El-Masri, 479 F.3d at 313; see also Abilt, 848 F.3d at 318; Fitzgerald, 776 F.2d at 1238 n.3 ("When the state secrets privilege is validly asserted, the result is unfairness to individual litigants—through the loss of important evidence or dismissal of a case—in order to protect a greater public value."). It is appropriate, however, "in limited circumstances like these, [that] the fundamental principle of access to court must bow to the fact that a nation without sound intelligence is a nation at risk." Sterling, 416 F.3d at 348.

Plaintiff contends that a holding which finds plaintiff does not have standing and precludes further litigation of this matter because of defendants' invocation of the state secrets doctrine leads to the result that "the Executive Branch alone controls who can and cannot challenge unlawful surveillance."68 This contention is incorrect; the Supreme Court addressed and rejected a similar argument in Clapper. There, the Supreme Court explained that Section 702 surveillance orders are not insulated from judicial review because (i) the FISC reviews the government's certifications, targeting procedures, and minimization procedures for Section 702 surveillance, including whether the targeting and minimization procedures comport with the Fourth Amendment, (ii) criminal defendants prosecuted on the basis of information derived from Section 702 surveillance are given notice of that surveillance and can challenge its validity, and (iii) electronic communications service providers directed to assist the government in surveillance may challenge the directive before the FISC. Clapper v. Amnesty Int'l USA, 568 U.S. 398, 133 S.Ct. 1138, 1154, 185 L.Ed.2d 264 (2013). Even if those other avenues for judicial review were not available, the Supreme Court has made clear that "`[t]he assumption that if [plaintiff has] no standing to sue, no one would have standing, is not a reason to find standing.'" Id. (quoting Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 489, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)).

Moreover, since this litigation began in 2015, FISA Section 702, pursuant to which the NSA Upstream surveillance program operates, was reauthorized by Congress. FISA Section 702 was set to expire on December 31, 2017, but Congress voted in January 2018 to extend FISA Section 702 for an additional six years (the "FISA Amendment Reauthorization Act of 2017").69 This reauthorization process sparked significant public debate, and the FISA Amendment Reauthorization Act of 2017 enacted a number of reforms to address the public's civil liberties concerns.70

Thus, rather than the executive branch alone controlling who can and cannot challenge unlawful surveillance, the judicial branch provides for review and oversight via the limited avenues outlined by the Supreme Court in Clapper, including the significant role of the FISC, and the legislative branch provides for review and oversight via the FISA reauthorization process and the executive branch's ongoing reporting requirements to Congress. These avenues are sufficient to meet Constitutional requirements while at the same time precluding the unnecessary disclosure of state secrets.

* * *

For the reasons set forth above, this case must be dismissed, and judgment must be entered for defendants.

An appropriate order will issue separately.