Electronic Frontier Foundation Files Lawsuit Against NSA

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By Lorenzo Franceschi-Bicchierai2013-07-17 18:16:43 UTC

The digital rights advocacy group Electronic Frontier Foundation (EFF) is leading an unlikely and broad coalition of 19 groups to sue the National Security Agency on account of its surveillance program that collects the telephone records of American citizens.

The lawsuit (.PDF) was filed on Tuesday in a California federal court, challenging the vast electronic surveillance program revealed by documents Edward Snowden leaked to The Guardian . The coalition argues that this program is unconstitutional and violates the First, Fourth, and Fifth Amendments.

See also: ACLU: Tracking Your Cellphone Location Should Require a Warrant

"This lawsuit challenges an illegal and unconstitutional program of dragnet electronic surveillance, specifically the bulk acquisition, collection, storage, retention, and searching of telephone communications information," the suit said.

The NSA program in question stems from section 215 of the Patriot Act. That provision, as Mashable has previously explained, has been interpreted by the U.S. government to allow the NSA to collect phone records, or metadata, on Americans, which are kept for up to five years with the authorization of the secret Foreign Intelligence Surveillance Court.

"The Program collects information concerning all calls wholly within the United States, including local telephone calls, as well as all calls between the United States and abroad, regardless of a connection to international terrorism, reasonable suspicion of criminality, or any other form of wrongdoing," reads the suit, written by EFF’s legal director Cindy Cohn.

The lawsuit defines this surveillance program as the "Associational Tracking Program," to underscore how it tracks associations between people by collecting phone calls made and received by a particular phone number. Multiple experts have explained that collecting this information can sometimes be more revealing than collecting the actual content of the calls.

The suit demands the federal government return and destroy all records collected through section 215 of the Patriot Act and halt the program that allows their collection.

Among the groups that have joined EFF are the First Unitarian Church of Los Angeles, the California Association of Federal Firearms Licensees, Human Rights Watch, Greenpeace, and the Calguns Foundation.

The groups argue that the NSA program violates their constitutional protection from warrantless searches as well as infringes on free speech rights. They further argue that citizens might be afraid to associate with them if they know somebody is collecting their call records.

Challenging government surveillance on the basis of the First amendment is a new approach, but challenging it on Fourth Amendment grounds has been tried before, with mixed results. Normally, the U.S. government argues that all records handed over by customers to third parties like phone companies or banks don't require a warrant to be obtained. This is the so-called "third party doctrine," but the plaintiffs believe the doctrine is wrong and needs to be revisited.

"The mere fact that you hand your phone records that are held by the phone company and not by you, doesn't make it less invasive or scary when the government comes and gets access to it," Cohn said in a press call.

"I think that it's time for the third party doctrine to yield to a more sensible understanding of how people view their privacy and their first amendment rights. Nobody today thinks that the fact that they use Gmail for their email, as opposed to letters that are stored in their house, makes any difference on the sensitivity of their communications," she added.

This is just one of several legal challenges to the NSA surveillance programs. One by Amnesty International, which challenged the Bush-era warrantless wiretapping program to which the current one is heir, went all the way to the Supreme Court. But the justices struck it down ruling that the plaintiffs (who were journalists and human rights activists) didn't have legal standing, since they couldn't directly prove they were targets of the surveillance.

The EFF believes that, thanks to Snowden and the leaked Verizon FISA Court order, that argument won't work this time. The 19 groups have standing because the surveillance program targets all Americans, they argue.

"It's now clear that virtually everyone's phone call records can be gathered in this metadata collection program, so I believe they do have standing," University of Chicago law professor Geoffrey Stone told the Associated Press.

Photo: Win McNamee/Getty Images

Topics: EFF, NSA, privacy, surveillance, U.S., US & World