Unlikely Coalition Sues NSA over Phone Surveillance

by Dan Holden | July 17, 2013

EFF

The Electronic Frontier Foundation (EFF), a group with years of experience fighting illegal government surveillance in the courts, on Tuesday filed suit against the National Security Agency (NSA), alleging that the NSA’s  controversial mass-collection of call records violates the First Amendment rights of nineteen organizations ranging from the Unitarian church, to gun advocates and various political advocacy organizations.

“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.”

Filed as First Unitarian Church of Los Angeles v. NSA, the suit seeks to stop the NSA’s bulk telephone records collection program, a secret operation that was uncovered by former NSA consultant Edward Snowden and confirmed by last month’s publication of an order from the Foreign Intelligence Surveillance Court (FISC).  EFF said 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.

Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006.

It is conceivable, though not officially confirmed, that these call records could include not just traditional telephone calls, but all landline-based Internet communications as well, although the EFF suit does not assert this claim.

“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 First Unitarian Church of Los Angeles has a proud history of working for justice and protecting people in jeopardy for expressing their political views,” said Rev. Rick Hoyt. “In the 1950s, we resisted the McCarthy hysteria and supported blacklisted Hollywood writers and actors, and we fought California’s ‘loyalty oaths’ all the way to the Supreme Court… We joined this lawsuit to stop the illegal surveillance of our members and the people we serve… This spying makes people afraid to belong to our church community.”

In addition to the First Unitarian Church of Los Angeles, the full list of plaintiffs in this case includes the Bill of Rights Defense Committee, Calguns Foundation, Greenpeace, Human Rights Watch, People for the American Way, and TechFreedom.

EFF also represents the plaintiffs in Jewel v. NSA, a class action case filed on behalf of individuals in 2008 aimed at ending the NSA’s dragnet surveillance of millions of ordinary Americans. Last week, a federal court judge rejected the U.S. government’s latest attempt to dismiss that case, allowing the allegations at the heart of the suit to move forward under the supervision of a public federal court.

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