Back to News list

Keker & Van Nest Backs the Electronic Frontier Foundation's Challenge to NSA Surveillance

The Recorder

Legal challenges are mounting to the federal government's widespread collection of telephone call data.

The latest comes from the Electronic Frontier Foundation on behalf of a cluster of diverse political, religious and environmental entities, all claiming the government's sweeping collection of telephone communications data chills their members' First Amendment right to free association.

In that way, the case, filed Tuesday in San Francisco federal court, takes a different tack than prior Northern District litigation backed by EFF, which focused on individual privacy rights of AT&T customers, said Cindy Cohn, EFF's legal director.

People are less likely to associate "when they know the government is watching," Cohn said. "Our suit seeks to apply the right of association in the digital age," she said.

The new suit, First Unitarian Church of Los Angeles v. NSA, challenges the constitutionality of "dragnet electronic surveillance" by the National Security Agency and follows a bevy of similar actions in the weeks since NSA contractor Edward Snowden leaked details of the secret government program to news outlets.

The suit also comes in the wake of a July 8 decision from U.S. District Judge Jeffrey White in San Francisco rejecting the government's attempt in the AT&T case to invoke a state secrets privilege and block the litigation from proceeding. White concluded the mechanisms for handling classified information in the Foreign Intelligence Surveillance Act preempt the privilege.

White's ruling should help the new case advance more quickly, Cohn said. The coalition hopes the court will also look to the U.S. Supreme Court's unanimous 1958 decision in NAACP v. Alabama, which barred the state government from compelling disclosure of the NAACP's membership list because of its suppressive effect on free association. The new suit could land in White's court but so far a district judge has not been assigned to the case.

EFF is backed by a team from Keker & Van Nest and Bay Area civil rights lawyers. A Justice Department spokesperson could not be reached for comment.

The 20-page complaint references a June 6 statement from Director of National Intelligence James Clapper that confirmed broad collection of "telephony metadata," such as the numbers dialed and length of calls.

In addition to the First Amendment claim, EFF attacks the "secret legal interpretation" of Section 215 of the USA Patriot Act that the Obama administration has relied on to justify the surveillance.

Administration officials have insisted the program is governed by a robust legal regime and authorized under the Patriot Act. However, EFF contends the secret interpretation makes the law unconstitutionally vague, fails to give law enforcement clear standards, and leaves people and groups "uncertain about where a reasonable expectation of privacy from government intrusion begins and ends."

"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," the complaint states.

Nineteen groups are suing the NSA, Clapper, Attorney General Eric Holder and other administration officials. Among the eclectic plaintiffs are First Unitarian Church of Los Angeles; the Bill of Rights Defense Committee; CalGuns Foundation Inc.; the Council on American Islamic Relations Foundation Inc., Greenpeace Inc.; Human Rights Watch; and the National Association for the Reform of Marijuana Laws.

The suit alleges violations of the First, Fourth and Fifth amendments and emphasizes the chilling effect of the data collection on citizens' freedom to communicate, associate and engage in political advocacy without government interference.

It's not just privacy at stake, Cohn said. She added: "We're hoping to start a national conversation about something broader."