This post, written by EFF legal fellow Andrew Crocker, originally appeared on the foundation’s website on Nov. 19.
EFF’s case challenging the government’s mass telephone records collection program, First Unitarian Church of Los Angeles v. NSA, has received some new firepower in the form of five amicus briefs, including one from U.S. senators charged with overseeing the NSA’s activities. The briefs are all in support of our claim that the NSA’s mass surveillance of ordinary Americans’ telephone records is illegal and unconstitutional.
The friend-of-the-court brief filed by the ACLU on behalf of Senators Ron Wyden, Mark Udall, and Martin Heinrich takes issue with the government’s argument that mass collection is necessary because it is the only effective technique for using phone records: The government has repeatedly suggested that it first must assemble the haystack, then find the needle. The senators, all members of the committee tasked with oversight of the NSA, write that they “have seen no evidence that the bulk collection of Americans’ phone records has provided any intelligence of value that could not have been gathered through less intrusive means.” As the senators’ brief points out, the government has other, more targeted means of surveillance at its disposal which can yield intelligence without invading the privacy of millions of innocent Americans.
The problems with unchecked surveillance and the need for oversight are also discussed in a brief filed on behalf of three experts in the history of intelligence agency surveillance: NSA historian James Bamford and two Church Committee staff members, Loch Johnson and Peter Fenn. Relying on the findings of the 1975 Church Committee, the brief draws parallels between the NSA’s current dragnet collection of phone records and previous mass surveillance programs. When left unchecked, the experts assert, initially narrow surveillance programs “expand beyond their original purposes, often into illegal conduct.”
Several other briefs shed light on the destructive effects that the phone records program has on fundamental constitutional rights, such as free speech, free association, and the right to counsel.
The PEN American Center, whose members include some of the most celebrated writers in the world, undertook a survey that shows that the revelation of NSA surveillance has caused American writers to self-censor, avoiding writing and communicating about topics that might draw government scrutiny. As PEN explains in its brief, these chilling effects undermine the First Amendment’s fundamental protection of the right to advocate unpopular or controversial viewpoints.
Meanwhile, the Reporters Committee for Freedom of the Press focuses on the “corrosive effect that mass call tracking has on the ability of the media to report on matters of public interest.” For some of the most important reporting in American history, including the Watergate scandal and the first revelations of the NSA’s warrantless wiretapping in 2005, reporters have relied on confidential sources and government leaks. In the past, when the government has sought to identify these sources, it has had to obey First Amendment protections and negotiate with journalists. Yet, as the Reporters Committee argues, these protections are “rendered pointless when cast against the backdrop of total surveillance of domestic telephone calls.” As a result, reporters’ sources dry up, restricting the ability of the press to play its crucial role in providing information to the public.
Finally, the National Association of Criminal Defense Lawyers highlights how the phone records program infringes the Sixth Amendment’s guarantee of a right to counsel in criminal cases. Interlocking doctrines of confidentiality protect several aspects of the lawyer-client relationship, but just as the mass collection of phone records can reveal many intimate details of individuals’ daily lives, it can also strip away this confidentiality. Because “the very act of consulting with the counsel of one’s choice places the fact and details of that consultation, and all subsequent communications by both attorney and client, in the hands of the Government,” clients are chilled from seeking legal help and the Sixth Amendment guarantee is undermined.
Combined with the plaintiffs’ first-hand accounts of how their associational rights are chilled by the phone records program, these amicus briefs show the wide-ranging effects of the government’s unconstitutional phone records program.
The amicus briefs: