The Director of National Intelligence first confirmed Edward Snowden’s disclosure of the unconstitutional practice of collection of “metadata” by the National Security Agency (NSA) on June 6, 2013. Twenty-two nonprofit organizations (NPOs) filed an amended complaint, on September 10, 2013, against NSA (First Unitarian Church of Los Angeles v. NSA) for violation of their First, Fourth, and Fifth Amendment Rights. This replaced the original lawsuit that was filed on July 16, 2013. The Twenty-two NPOs in this case represent a diverse number of issues, including church groups, gun ownership advocates, and numerous civil rights groups. The NPO case is unique because it focuses on freedom of association that is fundamental to NPO operations. The case is pending in the Federal District Court for Northern California.
First Unitarian Church of Los Angeles v. National Security Agency Case Overview
The legal question that is being addressed in First Unitarian Church of Los Angeles v. NSA is whether or not it is constitutional for the NSA to collect and store “metadata” of American citizens and nonprofit organizations.
Twenty-two U.S. nonprofits organizations have sued the NSA challenging its bulk collection of metadata. The NSA created the Associational Tracking Program (ATP) in order to collect American citizens telephone metadata, which includes all calls made, received, the duration of the call, and other identifying information in order to set up a database that will be used if any individual is implicated in terrorist activities.
The NSA claims the bulk collection of the telephone records of Americans was authorized by the Foreign Intelligence Surveillance Act (FISC), 50 U.S.C. §1861 that states “the Director of the Federal Bureau of Investigation or a designee of the Director may make an application for an order requiring the production of any tangible things for an investigation to obtain foreign intelligence information.” The Director of National Intelligence said the collection was intended to be broad in scope and not to include any information from private conversations and that the metadata would be used in authorized investigations concerning foreign individuals and groups.
The case is currently on hold until a date is set for oral argument on cross motions for summary judgment, with each side claiming that as a matter of law the court must rule in their favor. The court can only find for a party if a reasonable trier of fact would find that there is no question of material fact. If there is a question of material fact then the question must proceed to trial.
The NPOs have brought five claims against the federal government:
The NSA’s acts are violating the NPOs’ freedom of speech and freedom of association by “chilling” individual participation and action. The Supreme Court “has recognized the vital relationship between freedom to associate and privacy in one’s associations… particularly where a group espouses dissident beliefs.” NAACP v. Alabama ex rel Patterson, 357 U.S. 449, 462 (1964). Freedom of association protects against all government interference that may induce members to withdraw from the association or dissuade others from joining. Id. at 462-63. The government can only curb the freedom of association if the restriction is content neutral and is the least restrictive means of furthering a compelling governmental interest. Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984).
The NSA’s Associational Tracking Program has infringed upon a diverse group of organization’s freedom of association. All of the NPOs make and receive phone calls in furtherance of their mission and opinions, including advancing their political beliefs. There can be a chilling impact on groups if they know thier communication can be tracked by the government.
Defendants are violating NPOs’ reasonable expectation of privacy in their telephone communications information. The government argues, that according to the Supreme Court in Smith v. Maryland, there is no expectation of privacy for the telephone metadata. Smith v. Maryland, 443 U.S. 735 (1979). The NPOs argue that the scope of Smith, which allowed for two weeks of phone records collections, is vastly different then the five years of data allowed by the ATP. The NPOs also argue that subsequent legislation has since recognized such metadata as inherently private and requires phone companies to not provide the government with communication records without legal process or consent from the customer.
Defendants are violating plaintiffs’ due process rights by collecting this information secretly and providing no process in which to seek redress to adequately protect the NPO’s interests. Due Process protects the right to information privacy includes avoiding disclosure of personal matters. Whalen v. Roe, 429 U.S. 589, 591-93 (1977). The NPOs also argue that Section 215, which allows the government to collect bulk phone record data, is unconstitutionally vague since it does not provide any clear standards for collection.
The Foreign Intelligence Surveillance Act provides for collection of business records and tangible things as part of an authorized investigation as long as such investigation is not conducted solely upon basis of activities protected by the First Amendment. 50 U.S.C. §1861(a),(b). The government argues that the bulk metadata is relevant to their ongoing authorized counterterrorism investigation. The NPOs argue that the program allows records to be seized before there is an authorized investigation and that without an authorized investigation this data is irrelevant.
The NPOs argue for return of their unlawfully seized telephone records in order to demand return of all metadata collected by the NSA. Federal Rule of Criminal Procedure 41(g) states that “a person aggrieved by an unlawful search and seizure of property or by the derivation of property may move for the property’s return.” Fed. R. Crim. Pro. 41(g).
Many different organizations and individuals have filed friend-of-the court briefs on behalf of the twenty-two plaintiff organizations to end collection of metadata from millions of Americans. The most notable amicus brief was filed by Senators Ron Wyden (D-OR), Mark Udall (D-CO), and Marin Heinrich (D-NM), all members of the Senate Select Committee on Intelligence, argues that there is no evidence the spy programs are necessary or useful to combat terrorism. The Senators also warn that if this new interpretation of Section 215 is adopted the collection of bulk data could extend to Americans medical records, credit reports, financial information, firearm sales, and library records.
The National Association of Criminal Defense Lawyers, PEN American Center, Reporters Committee for Freedom of the Press, and Experts in the History of Executive Surveillance have also filed amicus briefs on behalf of the plaintiffs. These briefs range from statistical data gathered by the PEN American Center that shows the effect of metadata collection on freedom of association to a historical analysis of how mass surveillance has been abused by many governments throughout history.