EFF Files Massive Lawsuit Over NSA Surveillance: Gun Rights, Civil Liberties Groups, Religious Groups Team Up

Legal Issues

from the one-to-watch dept

While there have been a number of lawsuits already filed over the NSA’s surveillance program, the EFF has just jumped in in a big way. Representing a variety of advocacy groups, religious groups and even a gun maker, the lawsuit makes the case that the dragnet surveillance violates the First, Fourth and Fifth Amendments. The plaintiffs in the case include the First Unitarian Church of LA, Greenpeace, Calguns, the Bill of Rights Defense Committee, California Association of Federal Firearms Licensees, Council on American Islamic Relations, the Franklin Armory, Free Press, Tech Freedom, Public Knowledge, the Free Software Foundation, Human Rights Watch, the National Organization for the Reform of Marijuana Laws (NORML), the Open Technology Institute, People for the American Way and Students for Sensible Drug Policy. It’s a pretty wide-ranging group of folks who don’t normally agree on much (in fact, some of them probably disagree with each other, vehemently, on a number of issues). But they’ve come together for this.

The First Amendment argument is basically that this is chilling these organizations’ right to communicate anonymously:

Defendants have violated and are violating the First Amendment free speech and free association rights of Plaintiffs, their members, and their staffs, including the right to communicate anonymously, the right to associate privately, and the right to engage in political advocacy free from government interference.

By their acts alleged herein, Defendants have chilled and/or threaten to chill the legal associations and speech of Plaintiffs, their members, and their staffs, by among other things, compelling the disclosure of their political and other associations.

Of the three main arguments, this is the one that I think may be the weakest, and the easiest for the courts to dismiss — but I hope I’m wrong. The Fourth Amendment claim is clearly the strongest:

Plaintiffs have a reasonable expectation of privacy in their telephone communications, including in their telephone communications information.

By the acts alleged herein, Defendants have violated Plaintiffs’ reasonable expectations of privacy and denied Plaintiffs their right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constitution of the United States, including, but not limited to, obtaining per se unreasonable general warrants. Defendants have further violated Plaintiffs’ rights by failing to apply to a court for, and for a court to issue, a warrant prior to any search and seizure as guaranteed by the Fourth Amendment.

And then there’s the Fifth Amendment argument, that we’ve been hearing a few people make recently:

Plaintiffs, their members, and their staffs have an informational privacy interest in their telephone communications information, which reveals sensitive information about their personal, political, and religious activities and which Plaintiffs do not ordinarily disclose to the public or the government. This privacy interest is protected by state and federal laws relating to privacy of communications records and the substantive and procedural right to due process guaranteed by the Fifth Amendment.

Defendants through their Associational Tracking Program secretly collect, acquire, retain, search, and use the bulk telephone communications information of Plaintiffs, their members and their staff without providing notice to them, or process by which they could seek redress. Defendants provide no process adequate to protect their interests.

As part of this 5th Amendment argument, they point out that secret FISA Court interpretations of the law would seem to violate basic due process as well.

This legal interpretation of 50 U.S.C. § 1861 is not available to the general public, including Plaintiffs, their members and their staff, leaving them and all other persons uncertain about where a reasonable expectation of privacy from government intrusion begins and ends and specifically what conduct may subject them to electronic surveillance.

This secret legal interpretation of 50 U.S.C. § 1861, together with provisions of the FISA statutory scheme that insulate legal interpretations from public disclosure and adversarial process, fails to establish minimal guidelines to govern law enforcement and/or intelligence collection.

The secret legal interpretation of 50 U.S.C. § 1861 used in the Associational Tracking Program and related surveillance progras causes section 1861 to be unconstitutionally vague in violation of the Fifth Amendment and the rule of law. The statute on its face gives no notice that it could be construed to authorize the bulk collection of telephone communications information for use in future investigations that do not yet exist.

As mentioned, there are a number of similar lawsuits, and I wouldn’t be surprised to see some of them lumped together at some point, but this one should be an interesting one to follow.

Filed Under: due process, fifth amendment, first amendment, fourth amendment, free speech, gun rights, nsa, nsa surveillance, privacy
Companies: calguns, eff, first unitarian church of la, franklin armory, greenpeace, human rights watch, public knowledge