If politics makes strange bedfellows, as the saying goes, wholesale government surveillance takes that to an entirely new level. The clearest evidence yet of the broad and diverse set of groups opposed to the NSA’s domestic spying programs came Tuesday when the EFF said that is representing a coalition that includes Greenpeace, Human Rights Watch and the First Unitarian Church, among others, in a law suit against the NSA in response to disclosures about the agency’s metadata collection program.
The law suit asserts that the NSA’s large-scale collection of telephone metadata is a violation of the First Amendment right of association because it gives the agency the ability to compile de facto membership lists for groups. The lead plaintiff in the case is the First Unitarian Church of Los Angeles, but the other plaintiffs include Islamic rights organizations, NORML, a drug-legalization advocacy group, a couple of gun-rights groups, Techright and the Bill of Rights Defense Committee. The suit names Keith Alexander, the director of the NSA, Attorney General Eric Holder. the FBI, FBI Director Robert Mueller and Director of National Intelligence James Clapper as defendants.
“The bulk collection of telephone communications information without a valid, particularized warrant supported by probably cause violates the First, Fourth and Fifth Amendments as well as statutory prohibitions and limitations on electronic surveillance,” the EFF suit says.
“Defendants’ searches of the Associational Tracking Program database (s) without a valid, particularized warrant supported by probable cause violate the First, Fourth and Fifth Amendments.”
The suit is based on information disclosed through documents leaked by former NSA contractor Edward Snowden, specifically an order directing Verizon to turn over metadata records for all phone calls on the company’s network. The data collected includes information on originating and terminating numbers and length of the call. The EFF suit contends that this collection enables the NSA to develop connections among people and groups in ways that violate the Constitution.
“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.”
The suit is asking for the return of the plaintiffs’ phone records and destruction of any stored copies of the data, unspecified monetary relief, as well as attorney’s fees.
The EFF and the other plaintiffs contend in the suit that the NSA’s bulk collection of phone metadata and records is based on a secret interpretation of section 215 of the PATRIOT Act under which that data is considered a “tangible thing” that’s relevant to an ongoing intelligence investigation not involving a U.S. person.
“This secret legal interpretation of 50 USC 1861, together with provisions of the FISA statutory scheme that insulate legal interpretations from public disclosure and adversarial process, fails to establish minimum guidelines to govern law enforcement and/or intelligence collection,” the suit says.
