Wednesday, July 17, 2013

Strange Bedfellows

Politics and the fight for civil rights can sometimes create strange alliances that normally would never occur. A case in point is a lawsuit filed yesterday by the Electronic Frontier Foundation against the National Security Agency on behalf of 19 wildly different organizations. The plaintiffs include a diverse group including the First Unitarian Church of Los Angeles, Greenpeace, the National Organization for the Reform of Marijuana Laws, Council on American Islamic Relations Foundation, and the CalGuns Foundation. Other gun related entities in the lawsuit include Franklin Armory and the Cal-FFL.

From the EFF press release on the lawsuit:
"The First Amendment protects the freedom to associate and express political views as a group, but the NSA's mass, untargeted collection of Americans' phone records violates that right by giving the government a dramatically detailed picture into our associational ties," said EFF Legal Director Cindy Cohn. "Who we call, how often we call them, and how long we speak shows the government what groups we belong to or associate with, which political issues concern us, and our religious affiliation. Exposing this information – especially in a massive, untargeted way over a long period of time – violates the Constitution and the basic First Amendment tests that have been in place for over 50 years."

At the heart of First Unitarian Church of Los Angeles v. NSA is the bulk telephone records collection program that was confirmed by last month's publication of an order from the Foreign Intelligence Surveillance Court (FISC). The Director of National Intelligence (DNI) further confirmed that this formerly secret document was legitimate, and part of a broader program to collect all major telecommunications customers' call histories. The order demands wholesale collection of every call made, the location of the phone, the time of the call, the duration of the call, and other "identifying information" for every phone and call for all customers of Verizon for a period of three months. Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006.

"People who hold controversial views – whether it's about gun ownership policies, drug legalization, or immigration – often must express views as a group in order to act and advocate effectively," said Cohn. "But fear of individual exposure when participating in political debates over high-stakes issues can dissuade people from taking part. That's why the Supreme Court ruled in 1958 that membership lists of groups have strong First Amendment protection. Telephone records, especially complete records collected over many years, are even more invasive than membership lists, since they show casual or repeated inquiries as well as full membership."
The lawsuit, First Unitarian Church of LA et al v. National Security Agency et al, was filed yesterday in US District Court for the Northern District of California. It names the NSA, the Department of Justice, the FBI, and the United States as defendants along with NSA Director Gen. Keith Alexander, Attorney General Eric Holder,  Acting Asst. AG for National Security John Carlin, FBI Director Robert Mueller, and Director of National Intelligence James Clapper. The officials named are being sued in both their official and individual capacities.

The lawsuit contends that the NSA's Associational Tracking Program which collects and stores records of all telephone calls made within the United States and the related searches made of that database "without a valid, particularized warrant suipported by probable cause violate the First, Fourth, and Fifth Amendments."

The suit contends in Count 1 that the defendants have violated the plaintiffs' First Amendment rights to free speech and freedom of association and that their actions serve to chill these rights by threatening disclosure of their political and other associations. Count 2 asserts that the defendants have violated the plaintiffs' "reasonable expectations of privacy and denied Plaintiffs their right to be free from unreasonable searches and seizures" as guaranteed by the Fourth Amendment. Count 3 contends that the plaintiffs' privacy rights and their Fifth Amendment rights to substantial and procedural due process were violated by the defendants.

The plaintiffs are seeking a declaratory judgment that the NSA program violates Constitutional rights and both preliminary and permanent injunctions against continued use of the Associational Tracking Program. They also want the government to provide an inventory of all records seized under the Program and then to destroy them.

I think the premise of a lawsuit against the NSA based upon an extension of the 1950s era Supreme Court rulings concerning the NAACP and others membership list is both valid and ingenious. It is hard to argue that a program that has at its very heart the tracking of associational relationships is not an extension of a membership list. That this lawsuit was brought in the District of Northern California and, by extension, the Ninth Circuit is a wise move given the historic deference paid to First Amendment issues by those courts. It will be very interesting to see the government's response to this suit.

UPDATE: The participation of the CalGuns Foundation caught the attention of the Washington Times. They interviewed Gene Hoffman about the case and CalGuns participation in it.
Gene Hoffman, the chairman of the Calguns Foundation, said that “California gun owners are, shall we say, understandably paranoid” about the idea that government agencies might be recording the number, destination and duration of their phone calls — even if they weren’t actually listening in.

California’s “gun laws are relatively byzantine and intricate,” he said, so Calgun Foundation had “set up a hotline for people who get in trouble through their lawful ownership of firearms or who have questions about whether something they are going to do might be prohibited.”
“The stereotype of gun-owners being paranoid turned out to be true,” he said, noting that “people were turning to our hotline and using the phone specifically because they didn’t want to have a record created.”

The 1958 Supreme Court case NAACP vs. Alabama barred the state government from compelling disclosure of the NAACP’s membership list because of its chilling effect on free association.

“Telephone records, especially complete records collected over many years, are even more invasive than membership lists, since they show casual or repeated inquiries as well as full membership,” said Ms. Cohn.

Mr. Hoffman agreed, noting that — in the case of callers to the Calguns hotline — it was the potential for cross-referencing that most alarmed people.

California law bans medical marijuana patients from gun ownership, for instance, so “if you were known to have phoned both us and NORML, it could cause people to ask questions questions you really didn’t want to be asked,” he said.

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