New lawsuit is broadest challenge yet to NSA spying

UNIVAC computer system purchased by NSA in 1963.

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The Electronic Frontier Foundation (EFF) and its allies have been litigating against government surveillance for years to no avail. Now, armed with information made public by recent National Security Agency (NSA) leaks and a wide array of clients worried about widespread surveillance, the group hopes its latest attempt will have better luck.

In a complaint filed today, First Unitarian Church v. NSA, the EFF challenges the government's collection of telephone call information, saying the practice violates the First, Fourth, and Fifth Amendments of the US Constitution. The complaint states that Verizon, AT&T, and Sprint all participate in the data collection, which includes originating and terminating phone numbers, trunk identifiers, calling card numbers, and time and duration of calls.

The NSA itself has acknowledged the program in the wake of the leaks, which EFF legal director Cindy Cohn says removes at least one government strategy: stonewalling litigation by claiming a program's existence is a "state secret."

Plaintiffs in this case say the NSA's collection of phone data is unconstitutional not just because it affects their rights to be free of illegal searches but because it affects their free speech rights as well. The lawsuit alleges the government is impinging on First Amendment rights of activist groups to communicate anonymously and "the right to associate privately and the right to engage in political advocacy free from government interference."

The complaint doesn't address other elements of NSA surveillance that have been recently revealed, like the PRISM program. The telephone data collection began in 2001, with phone companies voluntarily handing over the information. Since 2006, the government has compelled the companies to produce the data based on orders from the secret Foreign Intelligence Surveillance Court (FISC).

The idea of some type of dragnet spying being done by the NSA has been suspected for years now, and in fact the theory has been put forth by this exact team of lawyers. The group is virtually identical to the legal team in another EFF case, Jewel v. NSA. However, recent leaks have confirmed the vast nature of the NSA's program. The new complaint has two exhibits attached: one is the Foreign Intelligence Surveillance Act (FISA) court order leaked by former NSA contractor Edward Snowden and published in newspapers around the world. The other is the NSA memo that published after those leaks, acknowledging the existence of the surveillance programs.

More than earlier complaints, the new EFF lawsuit goes out of its way to show how government spying threatens a wide array of interest groups. One plaintiff, the First Unitarian Church in Los Angeles, has provided sanctuary to Central American refugees and has "been quick to engage in difficult work and controversial ideas." The Calguns Foundation "operates a hotline for those with legal questions about gun rights in California."

"In the 1980s, we gave sanctuary to refugees from civil wars in Central America," said Rev. Rick Hoyt of the First Unitarian Church of Los Angeles in a press release accompanying the complaint. "Our church members and our neighbors who come to us for help should not fear that their participation in the church might have consequences for themselves or their families. This spying makes people afraid to belong to our church community."

The Washington Post and The Guardian both began publishing stories based on top-secret documents leaked by former NSA contractor Edward Snowden in early March. The FISC order to Verizon included in this EFF lawsuit was the first leaked document published. 

The clients in this case include Human Rights Watch, the Unitarian Universalist Service Committee, the Council on American Islamic Relations, and more. There are technology groups including the Open Technology Institute, TechFreedom, and the Free Software Foundation; gun-rights organizations including Calguns Foundation and the California Association of Federal Firearms Licensees; and left-leaning activist groups like Greenpeace and People for the American Way.

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