A coalition of activist and advocacy groups have joined the Electronic Frontier Foundation in a lawsuit against the National Security Agency and FBI, alleging that the government's collection of phone metadata is a violation of their First Amendment rights. The most pervasive, technologically advanced surveillance system in the world could end up hobbled by a Los Angeles church, some gunsellers, and a few marijuana advocates. As was prophesied.
The lawsuit (which can be read in full at the bottom of this post) focuses on the First Amendment right to assembly. A post at the EFF's blog explains why the collection of metadata on phone records—collection revealed by Edward Snowden and reported last month—infringes on that right.
"People who hold controversial views – whether it's about gun ownership policies, drug legalization, or immigration – often must express views as a group in order to act and advocate effectively," said [EFF legal director Cindy] Cohn. "But fear of individual exposure when participating in political debates over high-stakes issues can dissuade people from taking part. That's why the Supreme Court ruled in 1958 that membership lists of groups have strong First Amendment protection. Telephone records, especially complete records collected over many years, are even more invasive than membership lists, since they show casual or repeated inquiries as well as full membership."
Should there be any question about the government's willingness to investigate participants in such groups, you don't have to look very far back in history to see examples. (The ACLU, in fact, has a database of such instances.) During the Iraq War, the FBI infiltrated peace groups with the goal of investigating their activities.
Which explains the motley group the EFF has assembled to join its lawsuit. In the lawsuit, each explains its advocacy activity. The First Unitarian Church of Los Angeles works for social justice. NORML works to decriminalize marijuana. The Council on American Islamic Relations does what you'd expect. The California Association of Federal Firearm Licensees represents gun manufacturers and sellers. Human Rights Watch watches human rights—including those of whistleblowers. Each of these groups has joined the suit as a plaintiff, each seeing how the collection of data could make it easier for the government to observe their activism.
The ACLU filed a lawsuit shortly after the Snowden revelations became public that differs in at least one significant ways. Its lawsuit was predicated on the fact that it as an organization was a customer of Verizon's Business Services section—the only phone company division for which an order to collect metadata is public. The EFF (and its co-plaintiffs) argues persuasively that the program is understood to be broader than just affecting Verizon, citing the words of Director of National Intelligence (and suit co-defendant) James Clapper to that end. The point is important because the plaintiffs must have standing for the suit. The Supreme Court has already rejected one argument against surveillance on standing grounds. (The ACLU also employed the First Amendment argument, however.)
Few organizations can match the EFF's recent legal success against government surveillance. Earlier this month, it won a ruling determining that the government could wave off critique by claiming revelations would harm national security. Last month, the EFF was told that a key filing from the government's secret surveillance court should be released under the Freedom of Information Act.
A chapter in the history of the government's domestic surveillance, then, could end with religious groups and Greenpeace (did we not mention Greenpeace?) and pro-marijuana groups and gun rights advocates standing outside the Supreme Court, telling assembled news crews about how the day was a victory for the protection of the First Amendment. Dibs on the movie rights.