{"id":8027,"date":"2020-08-24T12:15:18","date_gmt":"2020-08-24T16:15:18","guid":{"rendered":"https:\/\/charityandsecurity.org\/?p=8027"},"modified":"2020-09-03T14:09:42","modified_gmt":"2020-09-03T18:09:42","slug":"first-unitarian-church","status":"publish","type":"post","link":"https:\/\/charityandsecurity.org\/litigation\/first-unitarian-church\/","title":{"rendered":"First Unitarian Church of Los Angeles v. National Security Agency"},"content":{"rendered":"\r\n

A lawsuit filed by 24 nonprofits (including the Charity & Security Network) challenges the NSA\u2019s bulk collection of communication data. The lawsuit was filed following\u00a0Edward Snowden\u2019s revelation<\/a>\u00a0in 2013 of the unconstitutional practice of collection of \u201cmetadata\u201d by the National Security Agency. The case is pending in the Federal District Court for Northern California.\u00a0<\/p>\r\n\r\n\r\n

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Case Summary<\/h2>\r\n\r\n\r\n\r\n

The Director of National Intelligence\u00a0first confirmed<\/a>\u00a0Edward Snowden\u2019s disclosure of the unconstitutional practice of collection of \u201cmetadata\u201d by the National Security Agency (NSA) on June 6, 2013.\u00a0\u00a0<\/p>\r\n\r\n\r\n\r\n

The classified National Security Agency (NSA) surveillance program revealed by Edward Snowden\u00a0is being challenged\u00a0<\/a>in court by a broad coalition of religious, nonprofit, and political advocacy groups.\u00a0 The NSA is running \u201can illegal and unconstitutional program of dragnet electronic surveillance,\u201d says the case\u2019s\u00a0complaint<\/a>, filed on July 16, 2013 in the U.S. District Court in the Northern District of California. It charges the NSA with \u201cbulk acquisition, collection, storage, retention, and searching of telephone communications information.\u201d<\/p>\r\n\r\n\r\n\r\n

The groups filing suit are concerned that their First, Fourth and Fifth Amendment rights are being violated by the program. \u201cThe First Amendment protects the freedom to associate and express political views as a group, but the NSA\u2019s mass, untargeted collection of Americans\u2019 phone records violates that right by giving the government a dramatically detailed picture into our associational ties,\u201d said Cindy Cohn, Legal Director for the Electronic Frontier Foundation, and one of the attorneys representing the groups.<\/p>\r\n\r\n\r\n\r\n

The NSA program\u2019s\u00a0\u201cdragnet surveillance\u201d collects identifying information directly from service providers like Verizon on every phone conversation in the United States.\u00a0 While it does not record the content of the conversation\u00a0per se<\/em>, it does collect revealing pieces of information, like the originating and terminating phone number, and time and duration of the phone call. \u201cWho 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\u201d said Cohn.<\/p>\r\n\r\n\r\n\r\n

The complaint explains that \u201caggregation 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.\u201d<\/p>\r\n\r\n\r\n\r\n

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.<\/p>\r\n\r\n\r\n\r\n

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. \u00a0The broad searches of the NSA surveillance program, it says, are outside that authority.<\/p>\r\n\r\n\r\n\r\n

The complaint asks the court to issue an injunction prohibiting future use of the program, destruction of copies of the plaintiffs\u2019 seized communications and an inventory of records seized.<\/p>\r\n\r\n\r\n\r\n

The Plaintiffs are a diverse coalition of both liberal and conservative groups, whose issues span religion, guns, the environment, intellectual property, and drug reform.<\/p>\r\n\r\n\r\n\r\n

The groups filed an amended complaint, on September 10, 2013, against NSA. This replaced the original lawsuit that was filed on July 16, 2013.\u00a0 \u00a0<\/p>\r\n\r\n\r\n\r\n

First Unitarian Church of Los Angeles v. National Security Agency Case Overview<\/h3>\r\n\r\n\r\n\r\n
    \r\n
  1. Legal Issues<\/a><\/li>\r\n
  2. Material Facts<\/a><\/li>\r\n
  3. Procedural Status<\/a><\/li>\r\n
  4. Complaints<\/a><\/li>\r\n
  5. Amicus Briefs Support NPOs<\/a><\/li>\r\n<\/ol>\r\n\r\n\r\n\r\n

    1. Legal Issues<\/span><\/em><\/h4>\r\n\r\n\r\n\r\n

    The legal question that is being addressed in\u00a0First Unitarian Church of Los Angeles v. NSA<\/em>\u00a0is whether or not it is constitutional for the NSA to collect and store \u201cmetadata\u201d of American citizens and nonprofit organizations.<\/p>\r\n\r\n\r\n\r\n

    2. Material Facts<\/span><\/em><\/h4>\r\n\r\n\r\n\r\n

    Twenty-two U.S. nonprofits organizations have sued the NSA challenging its bulk collection of metadata. \u00a0The NSA created the\u00a0Associational Tracking Program<\/em>\u00a0(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.<\/p>\r\n\r\n\r\n\r\n

    The NSA claims the bulk collection of the telephone records of Americans\u00a0 was authorized by the\u00a0Foreign Intelligence Surveillance Act<\/a>\u00a0(FISC), 50 U.S.C. \u00a71861 that states \u201cthe 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.\u201d\u00a0 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.<\/p>\r\n\r\n\r\n\r\n

    3. Procedural Status<\/em><\/span><\/h4>\r\n\r\n\r\n\r\n

    The case is currently on hold until a date is set for oral argument on \u00a0cross motions for summary\u00a0 judgment<\/a>, filed in November 2013, with each side claiming that as a matter of law the court must rule in their favor.\u00a0 The court can only find for a party if a reasonable trier of fact would find that there is no\u00a0<\/em>question of material fact.\u00a0 If there is a question of material fact then the question must proceed to trial.<\/p>\r\n\r\n\r\n\r\n

    The motion was supported by\u00a0statements from each plaintiff<\/a>\u00a0organization 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\u2019s guarantee of freedom of association. The Charity & Security Network is one of the plaintiffs.<\/p>\r\n\r\n\r\n\r\n

    The motion asks the court to find that the \u201cmass collection of American\u2019s public telephone records is unconstitutional because the government must use the least restrictive means available so as not to infringe on plaintiff\u2019s First Amendment associational rights.\u201d\u00a0 The nonprofits in the case \u201cgather people together to advance political beliefs\u201d and \u201cthe ability to communicate with others confidentially is vital to their organizational missions.\u201d But the outcome of the surveillance is that the government has \u201cessentially established its own database of the associations of the plaintiffs and their members.\u201d [p. 17]<\/p>\r\n\r\n\r\n\r\n

    The motion cites a string of Supreme Court cases that support association with others as means of advancing common beliefs and ideas.\u00a0 It then notes that significant infringement of these rights cannot be justified by a mere statement of legitimate state interest.\u00a0 Instead, infringement only survives legal scrutiny when it serves a \u201ccompelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.\u201d [citing Roberts v. United States Jaycees, 468 US 609 (1984). [p. 18]<\/p>\r\n\r\n\r\n\r\n

    The case of NAACP v. Alabama, 357 US 449 (1958) is cited to show that indirect restraints are likewise prohibited, and \u00a0\u201ccompelled disclosure of the identities of those who associate with each other is among the most egregious of such indirect restraints.\u201d<\/p>\r\n\r\n\r\n\r\n

    The complaint includes examples of how the NSA program has resulted in harassment, membership withdrawal and other chilling of the plaintiffs\u2019 associational rights.<\/p>\r\n\r\n\r\n\r\n

    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 \u201crelevant to an authorized investigation.\u201d<\/p>\r\n\r\n\r\n\r\n

    In January 2014, the government filed a motion to dismiss<\/a> the case, and in April of that year, attorneys at the Electronic Frontier Foundation filed a response<\/a> to the government’s motion.\u00a0Meanwhile, the Privacy and Civil Liberties Oversight Board\u2019s Jan. 23, 2014\u00a0report<\/a> cited the nonprofits\u2019 concerns and said the bulk collection of phone metadata is unconstitutional and should be discontinued.\u00a0<\/p>\r\n\r\n\r\n\r\n

    The government argued that the nonprofits have not been sufficiently harmed to have standing to sue.\u00a0 The brief responds that they have \u201cample evidence to support the allegation that government has collected all domestic phone records, including plaintiffs\u2019 records.\u201d It also points out that the First Amendment may be violated even when the government may not intend to suppress those rights.<\/p>\r\n\r\n\r\n\r\n

    In a Jan. 27, 2014\u00a0blog<\/a>\u00a0about the case, EFF explains the history of freedom of association under the First Amendment, citing the Supreme Court\u2019s 1956 ruling in\u00a0NAACP v. Alabama\u00a0<\/em>where it ruled that the state could not force the NAACP to turn over its membership list.\u00a0 The court said:<\/p>\r\n\r\n\r\n\r\n

    \r\n

    \u201cEffective 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 \u2018liberty\u2019 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\u2019s 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.\u201d<\/p>\r\n<\/blockquote>\r\n\r\n\r\n\r\n

    4. Complaints<\/span><\/em><\/h4>\r\n\r\n\r\n\r\n

    The NPOs have brought five claims against the federal government:<\/p>\r\n\r\n\r\n\r\n

    Count I: Violation of First Amendment\u2014Freedom of Association<\/strong><\/p>\r\n\r\n\r\n\r\n

    The NSA\u2019s acts are violating the NPOs\u2019 freedom of speech and freedom of association by \u201cchilling\u201d individual participation and action.\u00a0 The Supreme Court \u201chas recognized the vital relationship between freedom to associate and privacy in one\u2019s associations\u2026 particularly where a group espouses dissident beliefs.\u201d\u00a0NAACP v. Alabama ex rel Patterson<\/em>, 357 U.S. 449, 462 (1964).\u00a0<\/a>\u00a0Freedom of association protects against all government interference that\u00a0may<\/em>\u00a0induce members to withdraw from the association or dissuade others from joining.\u00a0Id<\/em>. at 462-63.\u00a0 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.\u00a0Roberts v. U.S. Jaycees<\/em>, 468 U.S. 609, 623 (1984).<\/a><\/p>\r\n\r\n\r\n\r\n

    The NSA\u2019s Associational Tracking Program has infringed upon a diverse group of organization\u2019s freedom of association.\u00a0 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.<\/p>\r\n\r\n\r\n\r\n

    Count II: Violation of Fourth Amendment\u2014Illegal Search and Seizure<\/strong><\/p>\r\n\r\n\r\n\r\n

    Defendants are violating NPOs\u2019 reasonable expectation of privacy in their telephone communications information.\u00a0 The government argues, that according to the Supreme Court in\u00a0Smith v. Maryland<\/em>, there is no expectation of privacy for the telephone metadata.\u00a0Smith v. Maryland<\/em>, 443 U.S. 735 (1979).\u00a0 The NPOs argue that the scope of\u00a0Smith<\/em>, which allowed for two weeks of phone records collections, is vastly different then the five years of data allowed by the ATP.\u00a0 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.<\/p>\r\n\r\n\r\n\r\n

    Count III: Violation of Fifth Amendment\u2014Lack of Due Process<\/strong><\/p>\r\n\r\n\r\n\r\n

    Defendants are violating plaintiffs\u2019 due process rights by collecting this information secretly and providing no process in which to seek redress to adequately protect the NPO\u2019s interests.\u00a0 Due Process protects the right to information privacy includes avoiding disclosure of personal matters.\u00a0Whalen v. Roe<\/em>, 429 U.S. 589, 591-93 (1977).\u00a0 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.<\/p>\r\n\r\n\r\n\r\n

    Violation of 50 U.S.C. \u00a71861 (Foreign Intelligence Surveillance Act)<\/strong><\/p>\r\n\r\n\r\n\r\n

    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. \u00a71861(a),(b).\u00a0 The government argues that the bulk metadata is relevant to their ongoing authorized counterterrorism investigation.\u00a0 The NPOs argue that\u00a0 the program allows records to be seized before there is an authorized investigation and that without an authorized investigation this data is irrelevant.<\/p>\r\n\r\n\r\n\r\n

    Motion for Return of Unlawfully Searched and Seized Property Pursuant to Federal Rule of Criminal Procedure<\/strong><\/p>\r\n\r\n\r\n\r\n

    The NPOs argue for return of their unlawfully seized telephone records in order to demand return of all metadata collected by the NSA.\u00a0 Federal Rule of Criminal Procedure 41(g) states that \u201ca person aggrieved by an unlawful search and seizure of property or by the derivation of property may move for the property\u2019s return.\u201d Fed. R. Crim. Pro. 41(g).<\/p>\r\n\r\n\r\n\r\n

    5. Amicus Briefs Support NPOs<\/span><\/em><\/h4>\r\n\r\n\r\n\r\n

    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. \u00a0The most notable\u00a0amicus brief<\/a> 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.\u00a0\u00a0The\u00a0<\/span>brief from Senators Wyden, Udall and Heinrich<\/a> points out that all three have participated in oversight of government surveillance programs.\u00a0 They state and explain in detail that they \u201chave seen no evidence that the bulk collection of Americans\u2019 phone records has provided useful intelligence unobtainable through less intrusive means.\u201d\u00a0\u00a0The brief provides numerous examples and citations.\u00a0 The Senators also warn the court that the government\u2019s expansive interpretation of the Patriot Act\u2019s authority (Sec. 215) \u201ccould be extended to authorize bulk collection of Americans\u2019 date beyond the call records\u2026\u201d For example, medical records, credit reports, financial information, firearm sales records and library records could be covered by this interpretation.<\/span><\/p>\r\n\r\n\r\n\r\n

    National Association of Criminal Defense Lawyers brief<\/a>\u00a0argues that the NSA bulk surveillance of phone records \u201cposes a unique threat the NADCL members\u2019 and their clients\u2019 Sixth Amendment right to counsel of one\u2019s choice, and to the attorney-client privilege and work product doctrine that are essential to that right.\u201d 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 \u201crelevant to an investigation.\u201d\u00a0 This argument \u201cknows no bounds\u201d and makes \u201cthe exception swallow the rule.\u201dThe\u00a0<\/span>PEN American Center brief<\/a>\u00a0describes how its membership of essayists, editors, novelists, playwrights, journalists and other writers\u00a0has been negatively impacted by the broad scope of the NSA bulk collection. A survey of their members conducted in October 2013 \u201cconfirms 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.\u00a0 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.\u201d The result, PEN fears, is that \u201cprivate communications will become cramped, our associations will become more limited, the scope of thought will shrink, and our democracy will be debased.\u201d<\/span><\/p>\r\n\r\n\r\n\r\n

    The\u00a0Reporters Committee for Freedom of the Press\u2019s brief<\/a>\u00a0was joined by 13 other news organizations, including the Washington Post, Los Angeles Times, E.W. Scripps Company and The McClatchey Company.\u00a0 It urges the court to end the bulk collection program, saying that \u201cThe 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.\u201d\u00a0 Several specific instances of problems created by government intrusion into this relationship are cited.Last, but far from least, the brief filed by three\u00a0Experts in the History of Executive Surveillance<\/a>\u00a0is 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.\u00a0 The post 9\/11 surveillance programs have followed the historical pattern.\u00a0 The experts are James Bamford, a former Navy Intelligence officer and author, Loch Johnson, who served as special assistant to the Chair of\u00a0the Church Committee\u00a0and currently teaches political science at the University of Georgia, and Peter Fenn, who served as Washington Chief of Staff for Senator Frank Church.<\/p>\r\n\r\n\r\n\r\n

    The National Association of Criminal Defense Lawyers<\/a>,\u00a0PEN American Center<\/a>,\u00a0Reporters Committee for Freedom of the Press<\/a>, and\u00a0Experts in the History of Executive Surveillance<\/a>\u00a0have also filed amicus briefs on behalf of the plaintiffs.\u00a0 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.<\/p>\r\n","protected":false},"excerpt":{"rendered":"

    A lawsuit filed by 24 nonprofits (including the Charity & Security Network) challenges the NSA\u2019s bulk collection of communication data. The lawsuit was filed following\u00a0Edward Snowden\u2019s revelation\u00a0in 2013 of the unconstitutional practice of collection of […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[37],"tags":[],"yoast_head":"\nFirst Unitarian Church of Los Angeles v. 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