One of the many ways EFF is fighting illegal NSA spying is in our lawsuit First Unitarian Church v. NSA. In this case, we represent 24 organizations that want to protect their freedom of association. We filed a major brief in this case over the weekend detailing how the NSA’s mass collection of phone records has resulted in decreased calls to and from these organizations – an unconstitutional violation of their First Amendment rights. Our filing came just after the Executive Branch’s Privacy and Civil Liberties Oversight Board (PCLOB) reached the same conclusion, specifically describing the organizations’ injuries as “entirely predictable and rational.”
But what is this “freedom of association” anyway? The debate over the NSA spying often focuses on the deep and disturbing privacy violations, but as First Unitarian Church v. NSA shows, there are critically important free speech issues involved as well. Here’s a deep dive on the issue to explain why freedom of association is so vital to our freedom of speech, and how the NSA’s phone surveillance violates that right.
Privacy in Group Association
In 1956, the State of Alabama accused the local chapter of the NAACP of operating in the state without the proper license. As part of its lawsuit, the State required the NAACP to turn over its membership list. The NAACP refused, explaining that if it could not assure its members a meaningful degree of privacy, then people would be discouraged from being members. The dispute went all the way up to the Supreme Court, which agreed with the NAACP.
The Supreme Court explained that:
“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. . . . This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. . . . Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”
In later cases, the Supreme Court explained that this freedom of association was a First Amendment right derived both from the freedom of speech and the freedom to peaceably assemble.
The NSA’s First Amendment Violations
The NSA’s phone records dragnet interferes with this “privacy in one’s associations” in the same way as Alabama’s attempt to force the NAACP to disclose its membership list – it reveals who associates with groups such as People for the American Way, Students for Sensible Drug Policy, the Council on American Islamic Relations, and Calguns, a California gun owners organization.
The government, in opposing our lawsuit, was completely tone-deaf to the fact that people do not want the government to know who they call and who calls them, and especially not if this information is gathered and searched over a long period of time like the five years the government currently keeps our telephone records. The government simply refused to acknowledge that its program was capable of harming the freedom of association. Instead, it claimed its dragnet was harmless. After all, the government argued, it was only collecting phone numbers, not identities. So they want us to pretend that the NSA and the FBI don't have access to whitepages.com and many other widely available reverse lookup directories. The government also claimed that there is no harm in collecting the phone records of millions of innocent Americans because a human did not “access or review” the records. But the records (and necessarily all of them) are reviewed through multiple computer searches. Finally, the government claimed that people couldn't reasonably be nervous about the potential for the government to misuse the records. Apparently the NSA and the FBI want us to forget the misuse of past secret surveillance programs, such as the illegal COINTELPRO programs that included the wayward investigations of Martin Luther King and John Lennon.
Dozens of Organizations Harmed
In our brief, we highlighted the actual harms that the organizations have suffered:
“The government’s mass collection program has resulted in a decrease in the communications that plaintiffs’ members and associates are willing to have with them, has burdened plaintiffs’ and their members’ abilities to communicate with each other and has removed the prospect of having the existence of those communications remain unknown to the federal government. The mass collection program has thus interfered, for example, with plaintiffs’ abilities to offer anonymous hotline services and has caused them to alter the way in which they fulfill their missions and provide services to their associates, often rendering it impossible for them to do so without incurring significant expense. Plaintiffs are receiving fewer telephone calls from their members and others who they serve as a result of the program. Plaintiffs can no longer assure those who wish to associate with them that the fact of their telephone communications with plaintiff will remain a secret from the government. This inability is especially damaging to the missions of those organization that advocate for privacy rights and for those organizations in which dissident communities associate. At least one plaintiff has experienced a decline in membership attributable to the collection of its call detail records. Many plaintiffs have had to communicate less and less efficiently and effectively with those persons who wish to associate with them, and vice-versa.”
We gave specific examples, too:
“As plaintiff Council for American-Islamic Relations explained, ‘When communications to which we are a party trigger additional government scrutiny, our organizational mission is undermined. The Associational Tracking Program makes it more difficult for CAIR to effectively accomplish its mission of defending the civil liberties of American Muslims.’ The CAIR plaintiffs have explained that one of their programmatic services is to provide advice to those suspected of being terrorists. They thus inevitably receive calls from those on a terrorist watch list. Because the NSA analyzes all calls made and received by those who receive calls from suspected terrorists, and then, as a third 'hop,' all calls made and received by those persons, one who calls CAIR or is called by CAIR faces a very high probability that her phone records will be analyzed by the NSA. As set forth in the CAIR declarations, this creates a very strong disincentive for members to call CAIR or for CAIR to reach out to its constituents."
“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 expressed similar concerns in this regard.” Patient Privacy Rights saw calls to its hotline halved form 40 calls a month to 20 after the phone records dragnet became public. Phone calls to the Franklin Armory dropped 70 percent after the program became public. Phone calls to Students for Sensitive Drug Policy were also halved, from 6 to 3 per day.
The Charity & Security Network explained that "'We have been forced to expend time and resources on exploring new technologies that may protect the privacy of our communications, although we cannot be sure that they will actual ensure confidentiality. Some activities are delayed until in-person meetings can be arranged. On an ongoing basis, the surveillance program inhibits the ability of staff and membership to communicate about sensitive factual and strategic issues. This hampers our ability to effectively carry out our work.'”
Human Rights Watch noted increased concerns about their confidentiality from its stakeholders and believes that some individuals have refrained from reporting human rights abuses to it because of the phone record dragnet.
Oversight Board Agrees
In last week’s report, the PCLOB agreed that these harms are indeed real, and rejected the government’s claim that the NSA’s dragnet is innocuous:
“These accounts describe changes in behavior on the part of journalists, sources, whistleblowers, activists, dissidents, and others upon learning that the government maintains a comprehensive and daily updated repository of call detail records on their telephone calls. The Board believes that such a shift in behavior is entirely predictable and rational. Although we cannot quantify the full extent of the chilling effect, we believe that these results — among them greater hindrances to political activism and a less robust press — are real and will be detrimental to the nation. . .
“With such vast numbers of telephone records readily subject to review, it would not be speculative for these individuals to fear that their own records may be culled from the NSA’s collection repository and subject to review by government analysts.”
The government will file its final papers in about a month. A hearing will be held April 25.