EFF Files Massive Lawsuit Over NSA Surveillance: Gun Rights, Civil Liberties Groups, Religious Groups Team Up

from the one-to-watch dept

While there have been a number of lawsuits already filed over the NSA’s surveillance program, the EFF has just jumped in in a big way. Representing a variety of advocacy groups, religious groups and even a gun maker, the lawsuit makes the case that the dragnet surveillance violates the First, Fourth and Fifth Amendments. The plaintiffs in the case include the First Unitarian Church of LA, Greenpeace, Calguns, the Bill of Rights Defense Committee, California Association of Federal Firearms Licensees, Council on American Islamic Relations, the Franklin Armory, Free Press, Tech Freedom, Public Knowledge, the Free Software Foundation, Human Rights Watch, the National Organization for the Reform of Marijuana Laws (NORML), the Open Technology Institute, People for the American Way and Students for Sensible Drug Policy. It’s a pretty wide-ranging group of folks who don’t normally agree on much (in fact, some of them probably disagree with each other, vehemently, on a number of issues). But they’ve come together for this.

The First Amendment argument is basically that this is chilling these organizations’ right to communicate anonymously:

Defendants have violated and are violating the First Amendment free speech and free association rights of Plaintiffs, their members, and their staffs, including the right to communicate anonymously, the right to associate privately, and the right to engage in political advocacy free from government interference.

By their acts alleged herein, Defendants have chilled and/or threaten to chill the legal associations and speech of Plaintiffs, their members, and their staffs, by among other things, compelling the disclosure of their political and other associations.

Of the three main arguments, this is the one that I think may be the weakest, and the easiest for the courts to dismiss — but I hope I’m wrong. The Fourth Amendment claim is clearly the strongest:

Plaintiffs have a reasonable expectation of privacy in their telephone communications, including in their telephone communications information.

By the acts alleged herein, Defendants have violated Plaintiffs’ reasonable expectations of privacy and denied Plaintiffs their right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constitution of the United States, including, but not limited to, obtaining per se unreasonable general warrants. Defendants have further violated Plaintiffs’ rights by failing to apply to a court for, and for a court to issue, a warrant prior to any search and seizure as guaranteed by the Fourth Amendment.

And then there’s the Fifth Amendment argument, that we’ve been hearing a few people make recently:

Plaintiffs, their members, and their staffs have an informational privacy interest in their telephone communications information, which reveals sensitive information about their personal, political, and religious activities and which Plaintiffs do not ordinarily disclose to the public or the government. This privacy interest is protected by state and federal laws relating to privacy of communications records and the substantive and procedural right to due process guaranteed by the Fifth Amendment.

Defendants through their Associational Tracking Program secretly collect, acquire, retain, search, and use the bulk telephone communications information of Plaintiffs, their members and their staff without providing notice to them, or process by which they could seek redress. Defendants provide no process adequate to protect their interests.

As part of this 5th Amendment argument, they point out that secret FISA Court interpretations of the law would seem to violate basic due process as well.

This legal interpretation of 50 U.S.C. § 1861 is not available to the general public, including Plaintiffs, their members and their staff, leaving them and all other persons uncertain about where a reasonable expectation of privacy from government intrusion begins and ends and specifically what conduct may subject them to electronic surveillance.

This secret legal interpretation of 50 U.S.C. § 1861, together with provisions of the FISA statutory scheme that insulate legal interpretations from public disclosure and adversarial process, fails to establish minimal guidelines to govern law enforcement and/or intelligence collection.

The secret legal interpretation of 50 U.S.C. § 1861 used in the Associational Tracking Program and related surveillance progras causes section 1861 to be unconstitutionally vague in violation of the Fifth Amendment and the rule of law. The statute on its face gives no notice that it could be construed to authorize the bulk collection of telephone communications information for use in future investigations that do not yet exist.

As mentioned, there are a number of similar lawsuits, and I wouldn’t be surprised to see some of them lumped together at some point, but this one should be an interesting one to follow.

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Companies: calguns, eff, first unitarian church of la, franklin armory, greenpeace, human rights watch, public knowledge

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Comments on “EFF Files Massive Lawsuit Over NSA Surveillance: Gun Rights, Civil Liberties Groups, Religious Groups Team Up”

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52 Comments
Anonymous Coward says:

Such a wide variety of groups and agendas breathes a little life back into the meaning of “We the People”, which the Constitution was meant to serve in the first place.

I’ll hold my hopes for a little while longer, but this kind of opposition to the NSA seems to me like people are realizing that even their own agendas are secondary to the liberties that make them possible.

Anonymous Coward says:

i just cant understand how any ‘secret court’ can make a ‘secret interpretation of a law’ and then give ‘secret permissions’ to certain agencies that could arrest someone for breaking that secret law when it has not been made public. if you dont know when something is illegal, how do you know you have violated that law? ridiculous! the courts, if no one else, should be held accountable over this! they were the ones giving the go-ahead!

art guerrilla (profile) says:

Re: Re:

exactly…

i was literally talking to SWMBO about this last night, for me, one -OF MANY- actions taken which spell the end of the american experiment in small-dee democracy, was when it comes out that there are secret laws, secret executive signing statements (JUST the idea of ‘executive signing statements’ alone and how they are used, is enough to tell me this isn’t our gummint, nevermind secret signing statements), secret kill lists, secret no-fly lists, secret detention, secret torture kamps, secret enemies…

that is far too many secrets for a democracy to survive…

the constitution hasn’t died a death of a thousand paper cuts, but death by a thousand drones…

send in the drones,
there ought to be drones,
don’t bother, they’re here…

art guerrilla
aka ann archy
eof

Dio Gratia (profile) says:

Why would you consider something hinging on First Amendment rights to be the weakest argument? Anonymity and freedom of association are necessary to the political process in a representative democracy. See Supreme Court McIntyre v. Ohio Elections Commission,1995 and NAACP v. Alabama, 1958. Without these First Amendment rights you have no way to effectively seek redress for violations of the Fourth, Fifth and Ninth amendments.

The Real Michael says:

Re: Re: Re:

I wouldn’t put it past them. With the breadth of their spying, they can single out certain individuals and groups, such as the above-mentioned, to put on their ‘naughty list,’ further violating their rights. I’m not saying that’s what WILL happen, just that unwarranted spying now makes this a very real threat.

Still feel safe?

Anonymous Coward says:

The Fourth Amendment claim is clearly the strongest:

Plaintiffs have a reasonable expectation of privacy in their telephone communications, including in their telephone communications information.

By the acts alleged herein, Defendants have violated Plaintiffs’ reasonable expectations of privacy and denied Plaintiffs their right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constitution of the United States, including, but not limited to, obtaining per se unreasonable general warrants. Defendants have further violated Plaintiffs’ rights by failing to apply to a court for, and for a court to issue, a warrant prior to any search and seizure as guaranteed by the Fourth Amendment.

Hey Mike,

Rather than blocking more and more anonymized IPs and MACs in your desperate yet futile attempt to censor me, would you mind explaining why this argument is “clearly the strongest”?

I’m trying to understand how these are “per se unreasonable general warrants” when they aren’t even warrants in the first place–they are court orders, but they aren’t warrants in the Fourth Amendment sense.

Since you believe the argument to be so strong, surely you can address my question directly and honestly. Thanks!

Let’s have a productive discussion rather than play this stupid game of whac-a-mole. I’m not going anywhere, dude.

That One Guy (profile) says:

Re: Just a little hint...

You realize that due to your, shall we say ‘colorful’ posting history, no one believes that Mike is actively blocking you, right? If nothing else the fact that you appear to have no trouble at all posting regularly calls into question your claim.

Now I can fully see some of your posts, namely the ‘one hyperlink to your stalker’s diary and that’s it’ posts being caught, rightly, by the spam filter, but until you present some actual proof of what you claim everyone is just going to continue to assume that your claims are nothing more than baseless lies.

Anonymous Coward says:

Re: Re: Just a little hint...

Mike has already blocked that IP that I used to only make the one post. This isn’t hard. Is Mike here saying that I’m lying about his blocking me? No. He is absolutely going apeshit trying to prevent me from posting on Techdirt. I made one post challenging his view in this thread, and that avenue of anonymous communication on Techdirt is now blocked. I never used that IP address before, and after one post, it’s blocked. The IP was 216.45.53.217. I’m now posting from 198.203.29.3. This one will be blocked very soon. Mike is so desperate to block me that it’s hilarious. Mr. Free and Open Internet is quite the censor, let me tell you. If I were lying, he would be in the comments saying so. He is not denying it because it’s true. I know, it’s so stupid and unbelievable that his fans, such as you, find it hard to believe. It’s very true, I assure you. You know it’s true because Mike is not denying it.

Anonymous Coward says:

Re: Re:

Oh look. Mike already blocked that anonymous channel of communication. I made the one post, and Mike the Censor went to work.

Wouldn’t discussing these issues on the merits be a better way to spend our time? Why the stupid game of whac-a-mole that you ridicule others for playing? It’s just as futile here as it is when you fault others for playing it.

I’m not going anywhere, Mike. Every anonymous channel you block from posting on Techdirt affects everyone–not just me. And every one is a victory for me since it shows how desperate you are to silence a critic.

Go ahead and block this one too. I have tens of thousands more. No amount of futile blocking on your part will ever do a thing to prevent me from saying what I want on Techdirt. You are completely wasting your time and making yourself look like a desperate ass.

Every block you make goes in my win column. It’s awesome how scared you are of me. I’m really not that scary, Mike. I really only want to discuss these issues that you clearly care deeply about on the merits. Why don’t you?

Coyote (profile) says:

Re: Re: Re:

If you actually gave a shit, you wouldn’t run away with your tail between your legs everytime Mike, or anyone on this site actually pulled on their pants and decided to debate you, because they were either tired of your bullshit, tired of rolling their eyes, or just wanted to see how much backpedaling you would do. Or hell, maybe they enjoy debating, but ended up finding out you’re not worth the words?

Frankly, I don’t blame them, because all you’ve done is backpedal, backpedal and backpedal, move the goal posts, or otherwise ‘debate’ in the sense that you want so desperately to win the debate without understanding the merits or even discussing the merits of the other side at all, and resort to blathering about censorship — something that isn’t the case, wherein your posts do come off rather spammy, as they’re repeated word-for-word, copypasted or contain a suspiscious link within them, depending – and the community, so used to your antics, do not think your posts are worth merit. Otherwise, your vocal dissent would be welcomed in a legitimate discussion, but you have never once thought to provide such a thing, instead going about it in your own little world, filled with your own little confirmation bias about these things that there is no more RAM available for other opposing arguments.

You want a yes man Mike, not a dissenting Mike. You prefer hanging around Yes Men, instead of discussing anything in a civilizd manner, or at least that’s what I’ve gathered from your behavior. If you improved upon it — and if you are blue, you did improve on it for a few articles, nearly a week even, though it were temporary — people would be more willing to discuss with you civily. As it stands, you are the only one to blame — not Mike, certainly not the people ‘reporting’ you either.

My advice? Put up or shut up. It’s a bit of a cliche’ as far as advice goes, but if you really want to discuss these issues or debate them civily, clean up your attitude. That’ll go a long way towards having a good discussion or debate.

Anonymous Coward says:

Re: Re: Re: Re:

you wouldn’t run away with your tail between your legs every time Mike, or anyone on this site actually pulled on their pants and decided to debate you,

he has nothing to worry about, it’s not going to happen, Masnick simply does not have to balls, or ability to debate these subjects.

The best he can do is copy/paste the opinions of someone else.

Anonymous Coward says:

Re: Re: Re:2 Re:

I assume that the guy/girl is one of the regular trolls.

OOTB seems more concious about image of being a troll and he/she (some people claim that there are at least 3 and I would agree even though split personality could be on the table).

Bob is a lot more elaborate. He either holds, or assumes the role of devils advocate for some very extreme views. But even though he is flaming quite a lot, it doesnt sound like a desperate beg for attention.

darryl is – posting as AC – straight up smack talk and not much else. He is the oldschool troll who will use any tactic so I wouldnt put it past him to whine about censorship and Mike not responding

Average_joe is – lately posting only as AC – very unique. The guy actually sounds intelligent overall, but is not that good at keeping his feelings in check. As a lawyer in spe that is a crucial ability to master. He is always dripping “Mike respond to me” or the like at least 2 times in each post which seriously makes the guy look desperate for attention. When Mike in the past has responded, the guy completely change the subject in a “bait and switch”.

Hi AJ

Btw. you need to be an expert in a lot of things to deal with a qualified discussion on these subjects. Using expert statements is a fine way to justify positions as long as they say what you think they say. Most of what he does is picking extreme opinions and showing their lack of validity which is hard to butcher completely.

Of course Mike makes mistakes, but he is constantly improving. Dig 5 years back and compare what he wrote to now, and you will see the moderate and far more balanced journalistic approach winning over pure political economic ideology.

Anonymous Coward says:

Re: Re: Re: Re:

My advice? Put up or shut up. It’s a bit of a cliche’ as far as advice goes, but if you really want to discuss these issues or debate them civily

You say that after your line after line of dribble, you totally avoid anything to do with the issue at hand, and launch into some ad hom attack.

Then you tell me to discuss these issues or debate them, when clearly you are incapable of doing that yourself.

Rapnel (profile) says:

I submit that a congressional inquiry be formed and proceed immediately.

The inquiry should be enabled with the means for an aggressive discovery, perhaps one as potent as the NSA’s known capabilities and with an equal precision. Discover everything.

And here I sit knowing everything I type is any or all of; copied, intercepted and forwarded, saved, analyzed, reviewed, labeled, cataloged, stored. All accessible outside the means of a point and click readership for analysis and action. I’m basically typing into an NSA screen right now. Get that? All content, source, destination, comm link type, provider, comm link accounts back to content, source, destination for account links. That’s a pretty fucked over population. It doesn’t matter how you justify it because you can’t.

And we can’t feed the hungry. Yeah! Steal what is mine for wars and fear and control but let a brother dangle by threads of poverty, despair or both.

Congress has work to do. If “We The People” do not control the congress we are lost. Votes are an untimely and inadequate means of persuasion and direction.

Please act accordingly.

Rapnel (profile) says:

Re: Re: Re:

The Executive branch is rogue. That line was crossed quite some time ago was it not? Any “influence” the common man has on that branch will be met with arms, brutality, blood, detention, jail etc. A signed NDAA was not received lightly. When CIA Director Brennan was asked if drones could be used against unarmed Americans and his answer was “no” just how much credibility does that really carry? Current indications would say none, none at all.

The Judicial.. I’m not sure. I’d be willing to bet that there are more than a few judges that are not at ease with the way things are progressing, if not their own judgements. Ultimately, like the other two, they’re all failing their mandate.

Congress has the tools accessible to a public inclined to use them. It is the people’s working branch and it, along with the people, bear the ultimately responsibility for this being allowed to continue. They make the laws and divvy up our monies.

The Executive is so far out of order, and has been for so long, that it’s indistinguishable from tyranny when it’s looked at as a single controlling entity. Police Commissioner Kelly is all but assured a nomination for the head of DHS. Soon one fifth of the country could be made to submit to stop and frisk. It would definitely be led by an individual that believes that that is OK and that’s not OK.

Congress and the fourth estate and the people have work to do. The Judicial will be made to work it out and the Executive must be brought to task.

Pragmatic says:

Re: Re:

That’s because we’ve been voting the same people back into office over and over again. Why? We’re afraid the other party will get in if we don’t. THAT is the problem.

The mythical third party we’ve all been waiting for to come in and save us doesn’t exist. The Democrats have lurched rightwards in many ways, though they occasionally throw a little red meat to their Progressive base, while the Republicans have lurched even further to the right, to a Randian/religious authoritarian anti-science position of conspiracy theories and religious dogmas, which they try to enforce on the rest of us.

The candidates that ARE in the middle belong to either of the Big Two and can’t get much done for us, or to third parties that don’t get elected in case one of the Big Two gets in, depending on which side of the aisle you’re on.

When are we going to stop being so damn TRIBAL in our voting preferences and vote for the individual?

Democracy is not the problem. The problem is us.

Anonymous Coward says:

Every time we hit the report button we win. Doesn’t matter what your IP is, the report button hides all your bullshit. If Mike were really serious, he should turn your IPs over to the Justice Department for spamming. You’ve made threats, harnessed, and generally shown you have no intention of being a participant in valid discussion attempting at all times to derail the topics.

As such, you validate being both a troll as well as a spammer. No amount of IP changing will stop the report button being hit on every post until you either get with the program to discuss and validate when called out on your bs. It’s not Mike, it’s the total community that figures you are the village idiot.

Anonymous Coward says:

Re: Re:

Mike were really serious, he should turn your IPs over to the Justice Department for spamming.

Mike !! Serious !!!! HAHAHAHAHA

I can also really see the Justice Department taking Masnick seriously, or doing anything about someone ‘spamming’ TD.

BTW: Do you actually know what spamming is ?? it does not appear so. It appears you think spamming is any comment you disagree with !!

Got news for you ! IT’S NOT.

Anonymous Coward says:

Re: Re:

Every time we hit the report button we win

You keep telling yourself that, one day you might even believe it, fact is every time you hit the report button the persons post you reported wins..

Every time you choose to censor, and not address the issue it shows all you have left is censorship, no valid arguments, no thought out response, none of that, just censorship.

If you think your use of censorship is for you a win, all it shows is you have nothing left BUT censorship, that actually means YOU LOST.. The second you hit that button you lost.

The Real Michael says:

Re: Has there been any "Treyvon" type protests

You could have consolidated all three posts into one.

Why are you labeling them ‘gun freaks’ when it’s their Constitutional right? I don’t hear much stories about legal gun owners committing crimes; it’s almost exclusively illegal/stolen firearms which are used to commit theft, assault and murder.

As for the supposed lack of popularity of guns, ever since Sandy Hook, gun sales and memberships into groups such as the NRA has skyrocketed.

Since you’re so against gun ownership, why not take your grievances to the police, DHS (purchased over 2 billion rounds of ammo) and military? After all, they’re among the biggest supporters of gun manufacturers. Do you reserve your judgement exclusively against the law-abiding citizen?

Anonymous Coward says:

Re: Re: Has there been any "Treyvon" type protests

“Why are you labeling them ‘gun freaks’ when it’s their Constitutional right?”

So it’s their right to be a freak, does not make them any less so.

it’s also the same constitution that says ‘reasonable’ searches can be carried out without a warrant.

The very same one, if you want to embrace your constitution, embrace it all, even if you don’t agree with it.
It’s not just your right, it is your responsibility.

Anonymous Coward says:

Re: Re: Re: Has there been any "Treyvon" type protests

you say it’s their right to carry gun, but you most also note that you have given up the right to live in a society where there are not a large number of people with guns.

You gave up the right to a higher level of safety, and security, because you want the right to have a gun.

Don’t think for a minute that you have more right, you have less rights.

I know what right I would prefer, to live in relative safety as opposed to knowing every second idiot I pass on the street is packing a gun, and probably willing to kill you with it “if you don’t look right”. As recent events will attest too.

But it’s clear, people in the US who own a gun, if they are killed by a gun it will most probably be their own.
And if they kill someone else, it will most probably be a family member.

free and easy gun ‘rights’ and ramped racism, combined with religious extremism !! now what a great combination that is.

Anonymous Coward says:

Re: Re: Re:2 Has there been any "Treyvon" type protests

“That old adage applies here: “There are two sides to every story.” We don’t always get the truth from the media. One of my favorite rants – the liberal controlled media, television news, newspapers, magazines, radio; all continue to show 12 year old Trayvon; NOT 17 year old Trayvon.

They continue to show the 5 year old picture BECAUSE it helps to cement in your mind the cute, little, hoodie-wearing youngster who was stalked by this monster.

In reality “little Trayvon” at the time of his death stood almost 6’2″ tall and weighed 175 muscular pounds. He had numerous run ins with authorities (both at school and local police), had been stopped and almost arrested two days before his death for smacking a bus driver in the face because the driver refused to let him ride for free. He was released because the driver was told not to press charges by the bus company and to continue on his route.

When “little Trayvon” was suspended at school it was not only because he tried to bring a little marijuana in with him, he was in possession of wedding rings and other jewelry, watches, etc. that he said he “found” along with a large screwdriver while on the way to school that day. The jewelry was turned over to the Police by the school.

I am not trying to say this was a good shooting when the security guard fired his weapon at a “hooded” punk who was acting suspiciously in a gated community and not responding to “STOP”!

I am not trying to say this kid deserved to die. I am saying the media in the USA is controlled by liberals who twist and distort what you see and hear in order for you to see things their way.

Not a single paper has printed RECENT photos of this kid because it would not keep your interest in this case and continue to spur hatred among blacks and whites involving the UAACP and “Rev.” Jesse Jackson preaching hatred and marching and parading.

Not a single paper will admit that this kid was a marijuana dealer.
His friends on FaceBook all say he had the “best plants”. Not a single paper will show you any of his recent photos where he shows off a mouthful of gold teeth and all of his tattoos.

Not a single newspaper will tell the news like it really is … and NOT how they want you to think it is.

President King Obama looked at the FIVE year old photo the media chose to show the nation and said, “If I had a son, he would look like Trayvon.” So from that comment should we assume that President King Obama did not bother to look for the facts in this shooting … or should we, the people, assume you want a son who is a 17-year-old drug dealing, gold teethed, tattooed thug whose name on one of his facebook profiles was “Wild Nigga” who ‘finds’ jewelry and burglary tools on the way to school?

A fair and impartial news media in the USA ? … One that does not follow the liberal agenda? … A news media that prefers to further divide this already fractured Nation?

I didn’t compose this. I’m only passing it on.

Never trust the news media for anything.”

Anonymous Coward says:

Re: NSA defense will take several pages from Prenda Law

I predict that the US government’s defense to legal challenges of it’s surveillance systems will bear a striking resemblance to Prenda Law’s legal strategies. It’ll take decades to wade through the obfuscation.

I don’t think that’s obfuscation we’re wading through.

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