A lawsuit filed by 24 nonprofits (including the Charity & Security Network) challenges the NSA’s bulk collection of communication data. The lawsuit was filed following Edward Snowden’s revelation in 2013 of the unconstitutional practice of collection of “metadata” by the National Security Agency. The case is pending in the Federal District Court for Northern California.
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.
The classified National Security Agency (NSA) surveillance program revealed by Edward Snowden is being challenged in court by a broad coalition of religious, nonprofit, and political advocacy groups. The NSA is running “an illegal and unconstitutional program of dragnet electronic surveillance,” says the case’s complaint, filed on July 16, 2013 in the U.S. District Court in the Northern District of California. It charges the NSA with “bulk acquisition, collection, storage, retention, and searching of telephone communications information.”
The groups filing suit are concerned that their First, Fourth and Fifth Amendment rights are being violated by the program. “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 Cindy Cohn, Legal Director for the Electronic Frontier Foundation, and one of the attorneys representing the groups.
The NSA program’s “dragnet surveillance” collects identifying information directly from service providers like Verizon on every phone conversation in the United States. While it does not record the content of the conversation per se, it does collect revealing pieces of information, like the originating and terminating phone number, and time and duration of the phone call. “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” said Cohn.
The complaint explains that “aggregation of this information discloses the expressive, political, social, personal, private, and intimate associational connections among individuals and groups, which ordinarily would not be disclosed to the public or the government.”
In noting violation of Fifth Amendment rights the complaint notes that the groups have no adequate remedy to protect their privacy interest under this program, since the court order authorizing the informaition collection is secret. The complaint also says the program violates Fourth Amendment rights by unreasonably searching the groups communications without a warrant.
It notes that the Patriot Act authorization for surveillance, commonly referred to as Section 215, has limits on what can be searched, including a requirement that the search must be based on reasonable grounds that the item sought is relevant to an authorized investigation. The broad searches of the NSA surveillance program, it says, are outside that authority.
The complaint asks the court to issue an injunction prohibiting future use of the program, destruction of copies of the plaintiffs’ seized communications and an inventory of records seized.
The Plaintiffs are a diverse coalition of both liberal and conservative groups, whose issues span religion, guns, the environment, intellectual property, and drug reform.
The groups filed an amended complaint, on September 10, 2013, against NSA. This replaced the original lawsuit that was filed on July 16, 2013.
First Unitarian Church of Los Angeles v. National Security Agency Case Overview
1. Legal Issues
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.
2. Material Facts
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.
3. Procedural Status
The case is currently on hold until a date is set for oral argument on cross motions for summary judgment, filed in November 2013, 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 motion was supported by statements from each plaintiff organization with firsthand accounts of the chilling impact the surveillance has had on their operations and membership. The motion argues that the bulk collection is outside the scope of Section 215 of the Patriot Act and violates the First Amendment’s guarantee of freedom of association. The Charity & Security Network is one of the plaintiffs.
The motion asks the court to find that the “mass collection of American’s public telephone records is unconstitutional because the government must use the least restrictive means available so as not to infringe on plaintiff’s First Amendment associational rights.” The nonprofits in the case “gather people together to advance political beliefs” and “the ability to communicate with others confidentially is vital to their organizational missions.” But the outcome of the surveillance is that the government has “essentially established its own database of the associations of the plaintiffs and their members.” [p. 17]
The motion cites a string of Supreme Court cases that support association with others as means of advancing common beliefs and ideas. It then notes that significant infringement of these rights cannot be justified by a mere statement of legitimate state interest. Instead, infringement only survives legal scrutiny when it serves a “compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” [citing Roberts v. United States Jaycees, 468 US 609 (1984). [p. 18]
The case of NAACP v. Alabama, 357 US 449 (1958) is cited to show that indirect restraints are likewise prohibited, and “compelled disclosure of the identities of those who associate with each other is among the most egregious of such indirect restraints.”
The complaint includes examples of how the NSA program has resulted in harassment, membership withdrawal and other chilling of the plaintiffs’ associational rights.
The motion also explains how Section 215 of the Patriot Act does not authorize the broad surveillance, as claimed by the government, because the law requires the information collection to be “relevant to an authorized investigation.”
In January 2014, the government filed a motion to dismiss the case, and in April of that year, attorneys at the Electronic Frontier Foundation filed a response to the government’s motion. 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 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.”
The NPOs have brought five claims against the federal government:
Count I: Violation of First Amendment—Freedom of Association
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.
Count II: Violation of Fourth Amendment—Illegal Search and Seizure
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.
Count III: Violation of Fifth Amendment—Lack of Due Process
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.
Violation of 50 U.S.C. §1861 (Foreign Intelligence Surveillance Act)
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.
Motion for Return of Unlawfully Searched and Seized Property Pursuant to Federal Rule of Criminal Procedure
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).
5. Amicus Briefs Support NPOs
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, who argued there is no evidence the spy programs are necessary to combat terrorism, the National Association of Criminal Defense Lawyers, the PEN American Center, a group of news organizations and three historians with specialized knowledge of past abuse of surveillance programs. The brief from Senators Wyden, Udall and Heinrich points out that all three have participated in oversight of government surveillance programs. They state and explain in detail that they “have seen no evidence that the bulk collection of Americans’ phone records has provided useful intelligence unobtainable through less intrusive means.” The brief provides numerous examples and citations. The Senators also warn the court that the government’s expansive interpretation of the Patriot Act’s authority (Sec. 215) “could be extended to authorize bulk collection of Americans’ date beyond the call records…” For example, medical records, credit reports, financial information, firearm sales records and library records could be covered by this interpretation.
National Association of Criminal Defense Lawyers brief argues that the NSA bulk surveillance of phone records “poses a unique threat the NADCL members’ and their clients’ Sixth Amendment right to counsel of one’s choice, and to the attorney-client privilege and work product doctrine that are essential to that right.” It also points out that the government relies on an overly broad interpretation of Sec. 215 of the Patriot Act, which allows seizure of items “relevant to an investigation.” This argument “knows no bounds” and makes “the exception swallow the rule.”The PEN American Center brief describes how its membership of essayists, editors, novelists, playwrights, journalists and other writers has been negatively impacted by the broad scope of the NSA bulk collection. A survey of their members conducted in October 2013 “confirms that the impact of this intrusion is far from hypothetical: writers have changed their behavior because they know the government is recording information about all their calls. Writers are avoiding communicating with sources, colleagues and friends; they are avoiding writing about certain topics and writers are not pursuing research they otherwise would.” The result, PEN fears, is that “private communications will become cramped, our associations will become more limited, the scope of thought will shrink, and our democracy will be debased.”
The Reporters Committee for Freedom of the Press’s brief was joined by 13 other news organizations, including the Washington Post, Los Angeles Times, E.W. Scripps Company and The McClatchey Company. It urges the court to end the bulk collection program, saying that “The integrity of a confidential reporter-source relationship is critical to producing good journalism, and mass telephone call tracking compromises that relationship to the detriment of the public interest.” Several specific instances of problems created by government intrusion into this relationship are cited.Last, but far from least, the brief filed by three Experts in the History of Executive Surveillance is both a historical documentation of how secret surveillance programs have been abuse in the past and a clear analysis of how, without proper oversight, such programs inherently lead to abuse, regardless of whether the government officials involved are acting in good or bad faith. The post 9/11 surveillance programs have followed the historical pattern. The experts are James Bamford, a former Navy Intelligence officer and author, Loch Johnson, who served as special assistant to the Chair of the Church Committee and currently teaches political science at the University of Georgia, and Peter Fenn, who served as Washington Chief of Staff for Senator Frank Church.
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.