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EFF, Gun Rights Advocates, Unitarians Sue NSA for "Dragnet" on Constitutional Grounds

BY Sarah Lai Stirland | Tuesday, July 16 2013

A new coalition with members ranging from state chapters of the Council on American-Islamic Relations, Greenpeace, the Free Software Foundation, an organization of California gun-rights advocates and the First Unitarian Church of Los Angeles filed suit against the National Security Agency on Tuesday, charging that its domestic surveillance activities, as recently described by The Guardian, are unconstitutional.

The plaintiffs say they have standing to bring the suit because, per the Guardian's reporting, they believe their phone calls have been logged. That surveillance could make people unwilling to join organizations they would like to join, for fear of attracting government scrutiny — which, they charge, amounts to an assault on a right to free association derived from the U.S. Constitution.

"In some ways, you could say that our case seeks to protect the [First Amendment] right of association in the digital age," said the Electronic Frontier Foundation's Legal Director Cindy Cohn in a call with reporters. The EFF filed the suit in federal court in San Francisco on Tuesday on behalf of 19 different organizations in total.

The groups are challenging "an illegal and unconstitutional program of dragnet electronic surveillance, specifically the bulk acquisition, collection, storage, retention, and searching of telephone communications information (the "Associational Tracking Program") conducted by the National Security Agency (NSA) and the other defendants," according to the complaint filed with the court.

The Guardian first reported in early June that the NSA is collecting the transactional information associated with millions of phone calls made by Americans and storing that information. It's also collecting information on the contents of online communications of non-U.S. citizens. Since those first revelations, the Director of National Intelligence James Clapper has effectively confirmed the existence of those giant databases of phone call "metadata." Government officials have said that they only query the databases about individuals when they're being investigated in specific cases.

Nevertheless, the EFF's Cohn said that the dragnet model of surveillance turns the U.S. constitutional principle of Fourth Amendment privacy on its head. Under a traditional understanding of the Fourth Amendment, she say, law enforcement authorities aren't supposed to be accumulating information on individuals without a particularized suspicion that they're involved in some unlawful activity. In their suit, the plaintiffs are charging that the NSA's activities violate the Constitution's First, Fourth and Fifth Amendments.

On Tuesday, several heads of organizations joining in the suit said they decided to participate in this legal action on behalf of their members and potential members who might be scared of joining after reading about the NSA's surveillance activities.

"If you're a supporter of marijuana legalization, and you might be a medical marijuana user, that's a prohibiting reason, you can't own guns, and that's a bit of a challenge," said Gene Hoffman, chairman of the Calguns Foundation in the EFF's Tuesday afternoon call with reporters. "If you were known to belong both to us and [the National Organization for the Reform of Marijuana Laws,] it could cause people to ask questions that you really didn't want to have asked."

Calguns is one of the 19 plaintiffs, as is the First Unitarian Church of Los Angeles. TechPresident profiled Calguns and its extensive work in protecting Second Amendment rights earlier this year.

"The First Unitarian Church of Los Angeles has a proud history of working for justice and protecting people in jeopardy for expressing their political views," Rev. Rick Hoyt said in today's press statement issued by EFF. "In the 1950s, we resisted the McCarthy hysteria and supported blacklisted Hollywood writers and actors, and we fought California's 'loyalty oaths' all the way to the Supreme Court. And in the 1980s, we gave sanctuary to refugees from civil wars in Central America. The principles of our faith often require our church to take bold stands on controversial issues. We joined this lawsuit to stop the illegal surveillance of our members and the people we serve. Our church members and our neighbors who come to us for help should not fear that their participation in the church might have consequences for themselves or their families. This spying makes people afraid to belong to our church community."