San Francisco - The Electronic Frontier Foundation (EFF) has provided a federal judge with testimony from 22 separate advocacy organizations detailing how the National Security Agency's (NSA) mass telephone records collection program has impeded the groups' work, discouraged their members and reduced the numbers of people seeking their help via hotlines. The declarations accompanied a motion for partial summary judgment filed late Wednesday, in which EFF asks the court to declare the surveillance illegal on two levels—the law does not authorize the program, and the Constitution forbids it.
In First Unitarian Church of Los Angeles v. NSA, EFF represents a diverse array of environmentalists, gun-rights activists, religious groups, human-rights workers, drug-policy advocates and others that share one major commonality: they each depend on the First Amendment's guarantee of free association. EFF argues that if the government vacuums up the records of every phone call—who made the call, who received the call, when and how long the parties spoke—then people will be afraid to join or engage with organizations that may have dissenting views on political issues of the day. The US government acknowledged the existence of the telephone records collection program this summer, after whistleblower Edward Snowden leaked a copy of a Foreign Intelligence Surveillance Court order authorizing the mass collection of Verizon telephone records.
"The plaintiffs, like countless other associations across the country, have suffered real and concrete harm because they have lost the ability to assure their constituents that the fact of their telephone communications between them will be kept confidential from the federal government," EFF Senior Staff Attorney David Greene said. "This has caused constituents to reduce their calling. This is exactly the type of chilling effect on the freedom of association that the First Amendment forbids."
In Wednesday's motion, EFF asks the US District Court for the Northern District of California to review the undisputed evidence at hand and rule that the NSA's "Associational Tracking Program" is not only unconstitutional, but not authorized under Section 215 of the USA PATRIOT ACT, the law the government has so far used to justify its surveillance.
The statute authorizes the government to collect information only if the information "is relevant to an authorized investigation." Because the government collects the records of every telephone call made to, from and within the United States, the vast majority of the records it collects are plainly irrelevant.
"Section 215 is a simple statute designed to give the FBI something like the subpoena power available in criminal investigations," attorney Thomas Moore, an EFF special counsel, said. "It was not intended to authorize the dragnet surveillance the NSA has undertaken. A government of the people, by the people, and for the people should not be spying on the people."
The motion could be argued as early as February 2014.
For the motion for partial summary judgment:
For the declarations:
Senior Staff Attorney
Electronic Frontier Foundation
Selected declaration excerpts:
Rev. Rick Hoyt, First Unitarian Church of Los Angeles:
"The threat of exposure has caused potential visitors to stay away, and members to withdraw from the community, resulting in the church losing its voice and damaging our faith and our organization. Even more damaging is the effect on our neighbors, many of whom depend on the church for basic necessities such as our weekly food distribution, and life-enhancing programs such as exercise classes, and math tutoring for children. Our neighbors now fear that a simple contact with the church inquiring about a church program will bring scrutiny upon other aspects of their lives, or bring their persons to the attention of a government that they may have reason to fear."
Gene Hoffman, Jr., CalGuns Foundations, Inc:
"Many gun owners are distrustful of government or of having any record of their status as gun owners. At least one of our members is only known to us by his online alias and he would only directly contact us via telephone from a blocked number. He has not phoned since the disclosures that lead to this action.
"Many of our constituents have expressed concern about the confidentiality of the fact of their telephone communications with us. Those who do call now leave fewer details in their voicemails of the concern or issue they are calling about, forcing staff and volunteers to make additional contacts to the caller, or more quickly refer the caller to one of our outside attorneys. This creates more expense than if a non-attorney volunteer could have answered a question."
Dinah PoKempner, Human Rights Watch:
"We have experienced an increase in questions from our researchers, other staff, external partners and potential associates expressing concern about the confidentiality of the fact of their communications with HRW itself and among our staff and associates. While it is difficult to get precise information about communications that did not occur, based on the concerns raised by others, I believe that some individuals may have refrained from reporting human rights abuses to us and some partners may have refrained from contacting us due to their concerns about security and confidentiality."
Jennifer Nimer, Council on American-Islamic Relations-Ohio (CAIR-Ohio)
"Because many of the persons CAIR-OHIO represents are subject to tangible manifestations of federal government scrutiny, discretion and confidentiality in their communications and associations with us is of paramount importance to such persons. Knowing that the government is certainly logging communications such persons may have with CAIR-OHIO deters these persons form seeking our assistance.
"By virtue of this 'guilt by association' form of analysis, large swaths of the Ohio Muslim community may be subject to government scrutiny, simply by virtue of having contacted CAIR-OHIO and because of CAIR-OHIO's advocacy efforts on behalf of those wrongly accused. That is, is a CAIR—OHIO client accused or suspected by government of wrongdoing contacts us, all those who contact CAIR-OHIO – including our constituents and prospective clients – are accordingly put at risk of government scrutiny, solely through their shared association with CAIR-OHIO.
"When the very act of communicating by phone with those we aim to serve puts our constituents at risk for further government scrutiny, our organizational mission is essentially undermined."
Heidi Boghosian, National Lawyers Guild:
"Revelations of NSA surveillance in the press has caused NLG members working on litigation and advocacy to restrict discussion of legal strategy, case updates and confidential information to in-person meetings or to written correspondence sent by mail. Practical restraints on the frequency of these meetings results-in less robust information to pass between attorneys and has potentially hindered Guild members from providing as vigorous a legal representation as would have otherwise been possible with secure electronic communication channels."
Dale Gieringer, California Chapter of National Organization for the Reform of Marijuana Laws (NORML):
"California NORML experienced an abrupt drop in the number of hotline calls we received after revelation of NSA's phone surveillance program in late June. Prior to then, we received an average of about 15-20 calls daily on our hotline; afterwards, calls dropped to 5 -10 per day. This data supports our belief that the NSA program had a chilling effect on our constituents' willingness to communicate with us. Moreover, several of our members have expressed similar concerns in this regard."
Rabbi Arthur Waskow, The Shalom Center:
"I had trouble sleeping, delayed some essays and blogs I had been considering, and worried whether my actions might make trouble for nonpolitical relatives. I certainly felt a chill fall across my work of peaceable assembly, association, petition, and the free exercise of my religious convictions. Since as the Rabbinic Director of The Shalom Center I am the chief spokesperson for its religious outlook and religious work, this chilling effect has slowed down, inhibited, and distorted the expression of our religious concerns."
"For some policymakers, a change in their policy positions attributable to TechFreedom's advocacy may imply, accurately or not, an association or relationship that the policymaker might otherwise be unwilling to publicly acknowledge. This inhibition, in turn, hinders TechFreedom's ability to advocate effectively for its ideas.
"Similarly, our communications with journalists and foreign nationals is limited by the risk of disclosure. Knowing that the government will retain a record of all our communications, and the inevitable possibility of disclosure, will reduce the likelihood of such individuals working with TechFreedom on important Internet freedom issues, which are inherently trans-national and often require collaboration with foreign civil society groups and policymakers."
Dr. Deborah C. Peel, Patient Privacy Rights:
"The Associational Tracking Program activities have harmed PPR because we have experienced a decrease in communications from whistleblowers, members and users who would have requested that their communications with Plaintiff remain secret.
"PPR experienced a decrease in calls to our office phone line during the summer. For example, prior to the revelations of NSA tracking, we received on average 40 calls per month. After the NSA revelations became public, we received on average only 20 calls per month."
Tracy Rosenberg, Media Alliance:
"Several organizational members have asked to have their membership terminated and their data expunged from our database after purchasing products or services (and purchasing memberships for the purpose of receiving discounted prices on those products or services) in the wake of recent publicity about the extent of telephone metadata surveillance. Media Alliance has experienced a significant increase in the number of individuals expressing concern about the privacy of their inquiries and transactions with our organization, more than a doubling from any previous year. I have been in this position since 2007 and the increase is unprecedented. Moreover, we have had a large number of individuals go beyond expressing concern to request the end of their memberships."