EFF has long believed that the First Amendment is as important to thinking about the NSA's spying as the Fourth Amendment. When the government can track to whom you talk, when and for how long, like it did with the telephone records collection under section 215 of the Patriot Act, it knows with whom you associate. When it tracks who talks to politically active organizations, it scares people out of participating in the political and social issues of the day.
So what's the status of our flagship case raising those First Amendment concerns, First Unitarian Church of Los Angeles v. NSA? How does the passage of the USA Freedom Act change what could happen to that case? We thought it was time for a short update.
Refresher on the First Unitarian Church Case
First Unitarian Church is one of several cases brought by EFF and others challenging the constitutionality of the NSA’s call records program, conducted by the federal government under the purported authority of the USA Patriot Act. Those other cases, including Smith v. Obama, Klayman v. Obama, and ACLU v. Clapper, primarily advance as constitutional arguments that the NSA program violates the Fourth Amendment’s guarantee against search and unreasonable seizure. ACLU v. Clapper also had a statutory claim, which was the basis for their win in the Second Circuit in June.
In First Unitarian Church, EFF represents 24 diverse organizations whose claims center on the fact that the NSA’s mass telephone records program also violates their First Amendment rights of freedom of speech and association. It's based on the seminal case of NAACP v. Alabama, where the Supreme Court prohibited Alabama from obtaining NAACP membership records, recognizing that to do so would infringe on the First Amendment rights of the NAACP and it members to associate anonymously. The NSA’s mass collection of phone records, similarly reveals who associates with EFF's clients, groups such as the Council on American Islamic Relations, Students for Sensible Drug Policy, and Calguns, a California gun owners association. EFF previously detailed this claim, and we backed it up with well-documented evidence showing that the call records program discouraged individuals from associating with our clients, and vice-versa, thereby frustrating their missions. EFF knows that one of our clients was targeted for its political activity in a flagrant violation of the First Amendment. Further, the government’s own review of the NSA program backed up our clients' claims, finding that it infringed people’s First Amendment rights.
Importantly, our case seeks a remedy for past violations of the law as well as an order preventing future violations.
What's Going on Now and Is the Case Going to be Moot Soon?
First, the evidence keeps on coming. Last week, we filed formal evidence in court confirming what everyone already knows: that Verizon, Verizon Wireless, Sprint, and AT&T participated in the NSA’s mass telephone records program along with Verizon Business which was the subject of the first Snowden revelation. This was needed because the government claims it has not acknowledged which carriers participated, and therefore our case has to be dismissed because our clients cannot demonstrate they were harmed.
Otherwise, First Unitarian Church has sadly been stalled in the District Court. We have a fully briefed summary judgment motion on the First Amendment and the government cross-moved to dismiss the case. But we have been waiting for a hearing date since 2013. We've made several attempts to get one scheduled only to be denied by the court.
In the meantime, of course, Congress passed the USA FREEDOM Act. The new law gives the government until the end of November to end its telephone records program in its current form, replacing it with one where the records rest with the companies and are sought via a "specific selection term," a phrase that isn't very well defined in the law, making us and many others nervous that the new spying will be nearly as broad as the old spying. Courts in other cases, including Klayman and ACLU, have asked if the new law addresses the various plaintiffs' complaints about the call records program, thus rendering those cases over, or what the law calls "moot," since the specific program being challenged has ended. Since those cases only seek to end the telephone records program, and haven't demanded past damages in a way that the law allows (what lawyers call a "perfected" request), has Congress effectively ended those cases as of November? We'll see how the courts handle that question soon.
But even if the ongoing record collection is over, the question of a remedy for the American people for the government's unlawful collection of telephone records for the past 13 years has not been mooted in First Unitarian. We don't think the government should get a free pass just because Congress finally stepped in to stop the mass collection, and we look forward to seeking full accountability from the court.