EFF Sues NSA, Justice Department, FBI

New submitter Jawnn writes "The Washington Post reports that the EFF has filed suit against the NSA in Federal Court in San Francisco, on behalf of multiple groups (court filing). Those groups include, 'Rights activists, church leaders and drug and gun rights advocates.' EFF Legal Director Cindy Cohn said, 'The First Amendment protects the freedom to associate and express political views as a group, but the NSA's mass, untargeted collection of Americans' phone records violates that right by giving the government a dramatically detailed picture into our associational ties. Who we call, how often we call them, and how long we speak shows the government what groups we belong to or associate with, which political issues concern us, and our religious affiliation. Exposing this information – especially in a massive, untargeted way over a long period of time – violates the Constitution and the basic First Amendment tests that have been in place for over 50 years.' Apparently, not everyone out there is believing the 'If you have nothing to hide' excuses being offered up from various government quarters."

Comments

fourth amendment vs. first amendment

[noh8rz10]

my take on this? it's more of a fourth amendment issue than a first amendment issue. i would push both probably, but I understand why one needs to choose a primary target. i guess an open question is, how would you rank order the amendments in terms of importance?

Re:fourth amendment vs. first amendment

[kilfarsnar]

my take on this? it's more of a fourth amendment issue than a first amendment issue. i would push both probably, but I understand why one needs to choose a primary target. i guess an open question is, how would you rank order the amendments in terms of importance?

I'm going for at least a 15-way tie.

Re:fourth amendment vs. first amendment

[Sarten-X]

The fourth amendment's applicability is only certain in the minds of privacy advocates. Legally, the fourth amendment is generally held to mean that the government can't disrupt your life with its searches or target someone specifically without a good enough reason to convince a judge. The NSA's sniffing is legally comparable to a police dragnet checking door-to-door for a suspect - it infringes privacy, but the impact on any particular person's life isn't unreasonable.

On the other hand, the first amendment is a much easier fight. The leaked information shows fairly well that the snooping (or at least its analysis) was targeted before any crime was committed. That means that the NSA's prejudiced against particular groups, and that's within spitting distance of a first-amendment violation.

After showing that some instances violate the first amendment, it's also an easier fight to argue that any wide-spread persistent snooping program is too easily also a violation. It's a similar tactic to the argument that no separate racially-segregated schools can be equal. Then once the first amendment has been invoked to protect people's metadata as free speech, then the fourth can be brought in to argue that any snooping of metadata must be approved by a warrant beforehand.

That also puts privacy in a much stronger place in the long run. By going after the first amendment protection, it can be argued that any aspect of a person's social life is a protected expression (within the limits usually invoked, like prohibiting murder as a form of protest), so that prohibits the government from seeking something the public knows (like a vehicle's whereabouts).

If successful, it could reconcile the public's love of sharing information with the hatred of the government learning that information.

Re:fourth amendment vs. first amendment

[Anonymous Coward]

Legally, the fourth amendment is generally held to mean that the government can't disrupt your life with its searches or target someone specifically without a good enough reason to convince a judge. The NSA's sniffing is legally comparable to a police dragnet checking door-to-door for a suspect - it infringes privacy, but the impact on any particular person's life isn't unreasonable.

The reason they take that stance is simply so they can violate people's rights with impunity as long as the violations are not deemed to be 'unreasonable.' Not new, but still pathetic nonetheless. The fourth amendment says no such thing, and no intelligent person would say that collecting data on nearly all Americans in an effort to stop the terrorist bogeyman is even close to reasonable; they would say it's a disgusting practice created by a freedom-hating government. The impact is unreasonable.

Re:fourth amendment vs. first amendment

[jcr]

The NSA's sniffing is legally comparable to a police dragnet checking door-to-door for a suspect

Nope. It's billions of counts of illegal wiretapping against people who are not suspects. That's why it's a crime.

-jcr

Re:fourth amendment vs. first amendment

[Anonymous Coward]

here's the basic premise in the founding of the enlightenment model US (boiled down): rights were given to you by your creator, not by your government.

Now that it is pretty clear that there is no Creator, there are no natural rights either. Politics has stalled in the United States between those who want to hang onto the fantasy of natural rights, even though there are no grounds for them, and those who would prefer to restructure the whole system under utilitarian lines but cannot overcome the opposition. The silly superstitions of a few 18th-century gentlemen (even if their Deism was not as extreme a superstition as other superstitions of the time) count for little in our country today.

Re:fourth amendment vs. first amendment

[perceptual.cyclotron]

Though I'm not an American, I think there's a strong case for the not-oft-discussed 9th Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

i.e., the constitution guarantees you certain rights, but just because it isn't listed in there doesn't mean it isn't your right – and I'd imagine most people, given the option, would choose to retain the right to privacy.

Of course it's not at all clear how one is supposed to go about retaining said rights in practice – but is worth remembering that your nation was founded with the explicit caveat that the constitution only places specific guarantees on your rights, and not boundaries.

Re:fourth amendment vs. first amendment

[Proteus]

It's billions of counts of illegal wiretapping

I'd very much like that to be the law, but it isn't. What the NSA did is probably illegal, certainly ought to be, but it isn't wiretapping. Wiretapping, as legally defined, requires that someone listen to a conversation. That's well-established enough that the NSA went out of their way to "only" capture metadata about the conversation.

What the EFF (and others) are arguing -- I think correctly -- is that even though it's not wiretapping, it's still a violation of our rights. Given the recent history of court rulings on 4th Amendment grounds, they probably feel they have a better shot at making this 1st Amendment argument than hoping for the court to agree that capturing phone call and internet message "envelopes" constitutes a search.

Re:fourth amendment vs. first amendment

[greg1104]

If the US government actually cared about the limits on its scope in the constitution, we would not have the Authorization for Use of Military Force Against Terrorists or the Patriot Act. When the government isn't even paying attention to its own rules on declaring war, the idea that the enumerated powers provide any limit on its scope is rather weak. A government that's let all that happen is not going to suddenly turn introspective on the vast subject of whether its recent decisions are really within its powers.

Unlike the ninth, the courts still act like the first amendment is valid sometimes, which is what makes that a better bet for waging a lawsuit.

Yee Ha!

[mlwmohawk]

Lets see how far we can get. We all need to donate. This is a test of our very democracy. I fear its long gone.

The impact of metadata surveillance

[gentryx]

Today, most US media seem to be obsessed with pointing fingers at Snowden. What few people realize is how this total surveillance of NSA and GCHQ tilt the balance of powers. Using graph theory, it is possible to compute (just from knowing who's talking to whom) who the agitators are in any given movement. If the Brits would have had the same technology back in 1770, there would have been no American Revolution. They'd simply have pinpointed and jailed the members of the Committees of Correspondence, leaving the revolution headless. A malevolent government could use this technology to suppress its own people. This is too much power.

Re:The impact of metadata surveillance

[Impy the Impiuos Imp]

This. The real problem is misuse, not use for finding terrorists. As long as there is one secret room in one of these multiying billion-dollar data centers, it's all for naught.

Let us listen in on the Republicans, or Democrats, and see their strategy. Then we can preemptively counter it with trial balloons, dirty tricks, astroturfing, and so on. This crap is bad enough without the power to make any of the opponents' plans stillborn or DOA.

Let's check up on candidate X. No alarms go off. See his calls, and calls of those he calls -- ooh, he's talking to someone rich, or a PAC. How can we discredit them?

Of course, Snowden claimed he could listen directly to their phone with no alarms going off, but even without, it's a dangerous power.

"They can't do that" is toothless if it's just a manual requirement for forms and permission, instead of uncorruptible logging and alarms going off in 50 managers' offices.

I'm sure the Jews in Germany though...

[Anonymous Coward]

Thought they had nothing to hide too...

You may have nothing to hide now but how do you know that after the next election the government wont start targeting the group you are affiliated with. Don't think it can happen... During the last election the IRS targeted conservative non profit organizations...

Maybe next time the government will target liberal organizations... Remember McCarthy?

Re:Bravo EFF

[Sarten-X]

A more interesting question is when will Mastercard/Visa start blocking EFF? I seem to recall that they did that once against Wikileaks after a few passionate speeches by senators.

Probably never. While WikiLeaks was quite happy to ignore US law in its "protests", the EFF has danced happily within the realm of legality for its muckraking. Sure, they annoy politicians, but they do so while staying within the law. They're a champion of freedom that everybody can publicly support... and if one politician ever attacks them, his opponent will enjoy the boost in public support.

Re:good

[erroneus]

We need not only people doing this, but we need to draw national and international attention to this. If they start pulling this "national security" excuse the way they have been for years and years (decades has it been? yeah... since Bush's first term and before!) the world will be watching. Stock in US companies will decline until the government begins to answer for its crimes. Money is the only way to see any sort of resolution to the problem. And no doubt the first resolutions will be "yes, of course we will stop doing this... the things you know about... but we won't stop doing the things you didn't know about and we will quietly change the things you knew about so they are now different enough that they are no longer the same thing." They won't "stop" and they won't reform. They'll wriggle and dodge. Then they will get exposed again. It won't be over the first time.

The cries of the people will not bring results. It will be the cries of business and speculators/investors/bankers which will be heard. I don't like the way the system currently works, but if it can be somehow used to make some change, it's good. It's not ideal and we should have something better. But things have to change and the sooner, the better. But more than that, we need some constitutional amendments and/or laws which add specific consequences to government players who violate the constitution. That stuff just can't keep going on.

Easy to Abuse

[PineHall]

My big concern is how easy it is to abuse this information in big ways.

"Mr President, we have information from an anonymous source (wink, wink) that you opponent is talking to Joe Smith. Now we know (wink, wink) that Joe has some connections to some shady characters. Your official reelection campaign does not need to worry about this. I am going to pass on this information to some of your supporters and they will break the news with some attack ads."

That temptation is use this information to gain an advantage is great. The argument that it will only be used to fight terrorism assumes that those with access will always work for the good of all and ignore any personal advantage they could gain. We all are by nature selfish and will usually act to our advantage. That bunch of good old boys that will not always do the right thing, especially since they operate in secrecy with minimal checks. It is too easy to abuse this information.

Re:good

[hairyfeet]

Why? The state will simply use the "mother may i" word of the day, national security, and it'll all go poof!

The simple fact of the matter, which so many refuse to accept, is this: you can NOT fix a corrupted system by working WITHIN that system...why? Because its corrupted silly! It would be like saying if you played three card monty enough times with the hustler on the corner you would come out ahead. in reality you can't win because if it looks like you have a shot they will just change the rules on you, just that easy.

So I'd wish them luck but all they are doing is pissing money down a rathole, I have a better chance of winning the powerball than they do of winning against the fed over spying, or did everyone forget the immunity for the telecos that the administration supported and got when it looked like their dirty little secrets would come out? the absolute best case scenario would be another Scooter Libby, the fed puts up a scapegoat and gives them a slap on the wrist and the MSM buries the story, game over. More likely they won't even get that, the judges will cockblock them with some catch-22 like "You can't bring a case unless you can prove you were being spied upon...which you can't prove because we won't give you discovery or force them to give you the evidence that shows it was you being spied upon" and again, game over.

Sadly all we can do is grab as much as we can for ourselves and wait for the whole rotten mess to collapse, which with the jobs being sent overseas, 2 wars, and a fed that is printing money almost as fast as Zimbabwe? I predict it won't last another 20 years. This is why all empires fall, they become too nasty and corrupt until the whole rotten mess can't be sustained and it all falls down.

Re:Pointless

[badboy_tw2002]

Of course you can't withstand an unlimited number of angry toddlers. Eventually after the first few 10's of thousand waves you'll get tired. After 7 days of waking toddler slaughter you'll have a momentary lapse where you slip and fall in some sort of viscera allowing them to topple you and overwhelm you with 3-400 toddlers simultaneously. Even after the initial shock of so many toddler bites, you'll regain your footing but now have to deal with the onslaught of fatigue plus the new strains of bacteria that you've suddenly come into contact with through their extremely dirty mouths.

This of course assumes the exercise allows for some sort of disposal mechanism for toddler bodies. One assumes that you can't simply stack the corpses into a wall surrounding a secure area and take a nap there, and/or that you're not allowed to eat them for energy.

So no, you can't beat an unlimited amount of toddlers, and yes, I'll take that bet.

They can't do it for free

[cbhacking]

If you support things like this, take the time to send a donation to the EFF over this! They are largely funded by concerned citizens such a ourselves. There are many ways to send such donations - obviously through their website, but also while doing things like buying Humble Bundle games or attending DEF CON in a few weeks - and this is an excellent time to show your support.

You, personally, can help fight these abuses. That's what donating to the people filing lawsuits like this does: it helps promote our position in this fight.

Federal programs and federal lawyers are paid for with taxes. Legally speaking, you don't get to decide what those taxes go toward. However, you can choose to pay a bit more to help groups like the EFF fight against such misuse of your funds!

Re:Bravo EFF

[cbhacking]

Fine, pay $200 for the Humble Bundle (it's not "free", it's "pay what you want") and donate 90% (or whatever portion you feel is appropriate) to the EFF. It's still a good cause to support (both DRM-free content and the EFF, for that matter).