The lawsuit filed in 2013 by 24 nonprofit groups that is challenging the National Security Agency’s (NSA) bulk collection of their communications data is moving forward, with a hearing set for April 25, 2014 in the federal district court in Oakland, CA. Attorneys at the Electronic Frontier Foundation, which represents the nonprofits, filed a response to the government fileing a motion to dismiss the case on Jan. 25, 2014. Meanwhile, the Privacy and Civil Liberties Oversight Board’s Jan. 23, 2014 report cited the nonprofits’ concerns and said the bulk collection of phone metadata is unconstitutional and should be discontinued. (The Charity & Security Network is one of the nonprofit plaintiffs.)
The nonprofits’ brief argues that the mass collection of phone metadata, called the “Associational Tracking Program,” infringes on First Amendment rights of association and expression and that the government has failed to show it uses the least restrictive means of achieving its investigative objectives. It also argues that the program is beyond what Congress authorized in the Patriot Act.
The government argued that the nonprofits have not been sufficiently harmed to have standing to sue. The brief responds that they have “ample evidence to support the allegation that government has collected all domestic phone records, including plaintiffs’ records.” It also points out that the First Amendment may be violated even when the government may not intend to suppress those rights.
In a Jan. 27, 2014 blog about the case, EFF explains the history of freedom of association under the First Amendment, citing the Supreme Court’s 1956 ruling in NAACP v. Alabama where it ruled that the state could not force the NAACP to turn over its membership list. The court said:
“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. . . . This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. . . . Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”
More information on the case can be found here.