Washington

NSA Sued Over Record Collection Regime

Groups say both bulk collection and analysis are unconstitutional 7/16/2013 01:58:48 PM Eastern

Almost two dozen groups including Public Knowledge, Free Press and Green Peace have sued the National Security Agency to try to stop it from gathering communications data, saying that its current surveillance program violates the law.

They are looking to block the massive phone record collection exposed by NSA whistleblower Eric Snowden.

"Programs like this that gather our communications data don't just invade privacy; they also harm people's First Amendment right of association," said said Sherwin Siy, VP of legal affairs for Public Knowledge. "When the government collects information about who calls whom, when and how often, they get a vivid picture of a person's contacts and associations. In the past, authorities have tried to compile lists of association members to discourage people from joining certain groups-the Supreme Court prevented Alabama from doing this to the NAACP in the 1950s. Chilling people from even contacting organizations does as much if not more harm."

The suit was filed in a California U.S. District Court and targets what the group calls a "dragnet" of electronic surveillance of data from Verizon, AT&T and Sprint, among others under the Patriot Act.

They argue that both the bulk collection, acquisition and storage of the data, then its analysis for communications histories of certain numbers, including associations and contacts over time, are unconstitutional violations of the First (speech), Fourth (unreasonable search and seizure) and Fifth (due process) Amendments, as well as statutes relating to electronic surveillance.

The suit also seeks return of the records in addition to a finding that the regime is unconstitutional.

On a conference call, Cindy Cohn, legal director of the Electronic Frontier Foundation, said a good way to sum up the case's First Amendment claim would be "the right of association in a digital age."

Cohn said that since the government has admitted the phone records collection, she is hopeful for success in this challenge versus earlier challenges when the FCC had claimed secrecy. "They have admitted the core of what they are doing."

She said the best way for the case to end would be the government to stop spying, but conceded that absent that, the court challenge could take some time.

Among the groups supporting the suit are the Calguns Foundation, representing gun owners. Gene Hoffman, chairman of that group, said the issue for them was that it was already hard to be a gun owner in California, and the idea that Big Brother is watching could discourage calls to its hotline that helps people who get in trouble for lawful ownership of guns.

Shahid Buttar, of the Bill of Rights Defense Committee, said many potential supporters might be intimidated from raising their voices if they thought the government was monitoring them.

Asked how they would handle the issue of standing -- proof that their records had been collected -- Cohn said that since everyone's records have been handed over, essentially everyone has standing to sue, so that standing hurdle had already been cleared.

Cohn said existing hurdles include that the government may still claim secrecy. "I expect the government has a pretty big arsenal to slow the case," she said. Her worry is about the government either slowing or stopping the case. She also wants this to be a moment to think about freedom to associate in general without the government "looking over our shoulders."

Cohn, talking about the Fifth Amendment due process violation, said there is a vagueness issue when interpretation of the law "is kept secret from the people."

Patriot Act has a sovereign immunity clause, but Cohn says they can argue, per the Administrative Procedures Act, that the government has "left the moorings" of statute in implementing the law.

Cohn said that the right place to determine if the government is acting legally is in the public, adversarial court process, not through internal checks or interpretations. She said the government keeps asserting things are legal "without showing its work." The suit is either alleging that statute does not authorize what the NSA is doing, or that, to the degree that it does, it is unconstitutional.

 

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