Nineteen organizations including Calguns Foundation, a gun owners group, and the First Unitarian Church of Los Angeles, have come together to file a lawsuit against the National Security Agency (NSA) for violating their right to freedom of association under the First Amendment by collecting and storing, in bulk, data from their members’ call records.
The lawsuit is specifically in response to the renewal order NSA whistleblower Edward Snowden disclosed to The Guardian, which showed a United States secret surveillance court, the FISA court, had authorized the NSA to collect the “telephony metadata” of all phone calls of Verizon customers over a three-month period.
EFF legal director, Cindy Cohn, argued this kind of “bulk untargeted collection of records is unconstitutional” and violates freedom of association. A “public adversarial court” should “determine the constitutionality and legality” of this surveillance and that is why a lawsuit was filed.
It rests upon a “core legal theory” that “when the government gets access to records of political members” of associations and knows who is talking to whom, when and how often, that makes it possible for the government to “learn and track associations of these organizations and their members.” This kind of surveillance may make it “less likely” that citizens “associate with organizations when they know the government is watching and can track their associations.”
Reverend Rick Hoyt of the First Unitarian Church of Los Angeles said the board of the congregation voted to join the lawsuit because of the history of the church, which has been involved in women’s suffrage and other social reform efforts. It has called attention to the congregation before when it resisted McCarthyist hysteria and supported Hollywood actors and writers that were blacklisted.
A co-founder of Calguns Association, Gene Hoffman, explained California gun owners would be particularly worried about the bulk collection of data on them. Calguns apparently setup a hotline for gun owners to call and ask questions if they were in trouble because of “lawful ownership” or if they “have questions about whether something is prohibited.” Yet, owners would now be very hesitant to use the phone because a record is being collected and stored.
The members of Calguns would be especially sensitive that government would be able to tell if they were members of multiple organizations. For example, if they are a member of Calguns and also National Organization for Reform of Marijuana Laws (NORML), that could generate government interest because the government might presume that person owns a gun and also uses marijuana.
Asked if how the nineteen organizations would obtain standing to challenge the bulk collection of telephone records, Cohn replied, “Everybody’s records have been handed over to the government so everyone has standing.” Director of National Intelligence chief James Clapper admitted everyone’s phone records are being collected.
The other organizations signed on to the lawsuit are: Bill of Rights Defense Committee, California Association of Federal Firearms Licensees, Inc., Council on American Islamic Relations chapters, Franklin Armory, Free Press, Free Software Foundation, Greenpeace, Human Rights Watch, Media Alliance, NORML, Open Technology Institute, People for the American Way, Public Knowledge, Students for a Sensible Drug Policy, TechFreedom and Unitarian Universalist Service Committee.
This is just one of a number of federal lawsuits that have been filed since Snowden exposed massive secret surveillance programs by the NSA.
Numerous lawsuits were filed against warrantless wiretapping by the administration of President George W. Bush after that was revealed, but there was little acknowledgment of what the NSA was doing by the government. Snowden forced the government to admit to some of the surveillance and present details of what the government was doing so it could try and justify its dragnet surveillance.
Snowden exposed the PRISM program, which gives the NSA the ability to have “direct access” to servers of major internet companies. The companies include Microsoft, Yahoo, Google, Facebook, Paltalk, AOL, Skype, YouTube and Apple.
Tech giants denied they were allowing any “direct access,” but one company in particular, Yahoo, decided it wanted to show it had “objected strenuously” to the demands by the government for information of users. They asked the FISA court to make public arguments in a 2008 case, where the company’s arguments against the PRISM program were rejected, forcing other tech companies to comply with the government’s demands for users’ data. And, on Monday, a federal judge serving on the secret surveillance court ordered the Justice Department to review the 2008 ruling and the arguments made by Yahoo and the US government in the case to see what could be declassified for the public.”
As Alex Abdo of the ACLU told the San Jose Mercury News days ago, “This is the first time we’ve seen one of these companies making this broad an argument in favor of transparency in the FISA court.” So, it was historical for a judge on the secret surveillance court to order a review.
Microsoft now wants more “freedom to disclose how it handles requests from national security organizations for customer data.” It wrote to Attorney General Eric Holder seeking permission, since it has been reported that the company helped the NSA “circumvent encryption of Outlook emails and capture Skype online chats.”
The tech giant has tried to justify its involvement in the PRISM program by claiming it was following the law and that the company did not believe it was giving the NSA “direct access” to any data. Now, it appears the company may want to do more than downplay the role the company played in the program.
Of course, neither Microsoft or Yahoo would be challenging the US government if Snowden had not blown the whistle.
Finally, yesterday a former GOP senator for the state of New Hampshire, Gordon Humphrey, emailed Snowden to tell him, “Provided you have not leaked information that would put in harms way any intelligence agent, I believe you have done the right thing in exposing what I regard as massive violation of the United States Constitution.”
Humphrey added, “Having served in the United States Senate for twelve years as a member of the Foreign Relations Committee, the Armed Services Committee and the Judiciary Committee, I think I have a good grounding to reach my conclusion.”
The Guardian‘s Glenn Greenwald posted the email from Humphrey and a reply from Snowden, where Snowden told Humphrey, “Thank you for your words of support. I only wish more of our lawmakers shared your principles – the actions I’ve taken would not have been necessary.”
“The media has distorted my actions and intentions to distract from the substance of Constitutional violations and instead focus on personalities,” Snowden wrote in the email. “It seems they believe every modern narrative requires a bad guy. Perhaps it does. Perhaps, in such times, loving one’s country means being hated by its government.”
In an email to Greenwald, after Greenwald tried to authenticate the email from Humphrey, the former senator stated that he wanted to thank Snowden for “exposing astonishing violations of the US Constitution” and encourage him to “persevere in the search for asylum.”
Finally, as the EFF’s Cohn said anybody can claim anything is legal, but the courts should be where that decision is made. That decision should not be made with some set of constructed internal checks and balances in the Executive Branch. It is for the courts to review whether a policy or program is constitutional.
Shahid Buttar of the Bill of Rights Defense Committee (BORDC), a plaintiff in the EFF lawsuit explained, whether the surveillance is legal or not, the constitutional permissibility of that authority is questionable.
“The Constitution represents a limit beyond which our government may not reach,” Buttar stated.” The NSA’s dragnet collection of information from Americans, Buttar added, has “violated those very tenets on which our nation was founded.” Secrecy has insulated the programs from review and constrained congressional interest in overturning them.
The courts now have an opportunity to show if in American society they can be “meaningfully independent” and demonstrate that the Constitution is more than words on paper, that the Fourth Amendment protection of privacy does have force and does constrict what the government can and cannot do. And it is only because someone stepped forward from within the dark halls of the national security state to challenge the claimed authority and impunity of the powerful that there is even a sliver of hope that run amok surveillance programs may be reined in by the judicial branch of government.
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