Activist Groups Unite in Suit Against NSA Surveillance

Posted July 26, 2013 in Government Your Personal Rights by

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What do advocates for gun rights, marijuana reform, environmental protection and open Internet have in common? They’re all concerned about being spied on by the government. And they’re suing.

In total, 19 organizations joined forces as plaintiffs in a complaint filed by the Electronic Frontier Foundation (EFF), which has pursued lawsuits against alleged government spying for several years. This latest suit accuses the National Security Agency (NSA) of violating the First, Fourth and Fifth Amendments by conducting dragnet surveillance of telephone metadata, which can be used to identify phone numbers and call histories.

The unlikely alliance of organizations includes Greenpeace, the National Organization for the Reform of Marijuana Laws (NORML), the Free Software Foundation, the First Unitarian Church of Los Angeles and Franklin Armory, which manufactures the controversial AR-15 rifle in California.

 

Right of Association

All of the groups have ties to hot-button political issues, which may make a person think twice about calling them if they think the government is tracking their calls. By spying on private communications, the plaintiffs allege, the NSA is violating the First Amendment right of association.

The right of association is enshrined in the landmark 1958 Supreme Court case NAACP v. Alabama, in which the high court held that the First Amendment protected the NAACP from being forced to reveal its membership list to the government. The court found that the revelation “may induce members to withdraw from the association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of their exposure.”

 

Data Collection ‘Broad in Scope’

The complaint comes in the wake of bombshell leaks from former NSA contractor Edward Snowden, who exposed the agency’s practice of metadata collection and revealed several other domestic spying programs. The leaks forced Director of National Intelligence James R. Clapper to confirm the “broad” collection of telephone metadata.

Arif Mahmood

“The design of the approach ensures that government agencies have a snapshot of global communication patterns so that retroactive searches can be performed on metadata, linking phone calls to newly identified persons of interest,” said attorney Arif A. Mahmood. “Of course, to ensure you have logged the behavior of later identified suspects, the government retains nearly every translation possible, it seems. This is likely to have a chilling effect on personal and political association because the government has transformed the very medium of communications necessary for private expression into a de facto apparatus for criminal inquiry.”

Mahmood said that in typical law enforcement investigations, communications data is only collected after a subject has been identified. Conversely, he said the NSA searches “indiscriminately for data in the hopes that some small fraction will later be shown to be useful and relevant to a lawful investigation.”

 

Old Suit Gets New Life

While this anti-spying lawsuit is just getting started, an older EFF suit against the NSA is suddenly picking back up after five years of government stonewalling.

The 2008 suit similarly accused the NSA of operating a large-scale surveillance program based on claims made by a whistleblower at AT&T, which was cooperating with government requests for phone data. But the government protested that the case involved “state secrets” and couldn’t be heard without jeopardizing national security.

That strategy worked until this month, when Judge Jeffery White of the Northern District of California ruled that the lawsuit can go forward. White said the “procedural mechanism” of the Foreign Intelligence Surveillance Act, which outlines the use of collected information, “preempts application of the state secrets privilege.”

Mahmood notes that White’s decision “makes no suggestion as to the substantive level of secrecy afforded” to the government. While the suit can proceed, the EFF still needs to prove that its case won’t harm national security efforts before it can go to trial.

Do you think the NSA metadata program infringes on the First Amendment right of association? Tell us why or why not in the comments section below.

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