Wednesday, 27 November 2013 01:31

ACLU v. James Clapper: Right to Freedom of Association and Privacy

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The American Civil Liberties Union (ACLU) has charged the National Security Agency (NSA) with breaching the First and Fourth Amendments of the United States Constitution with its bulk collection of all phone records in the U.S. The ACLU contends that the federal agency is violating citizens' constitutional rights of privacy and freedom of association, and exceeded its authority under the Patriot Act.

According to the injunction, the lawsuit "challenges the government’s dragnet acquisition of Plaintiffs’ telephone records under Section 215 of the Patriot Act, 50 U.S.C. § 1861. In response to information published by published by the media, the government has acknowledged that it is relying on Section 215 to collect “metadata” about every phone call made or received by residents of the United States. The practice is akin to snatching every American’s address book—with annotations detailing whom we spoke to, when we talked, for how long, and from where. It gives the government a comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, political, professional, religious, and intimate associations. The government has confirmed the authenticity of an order issued six weeks ago by the Foreign Intelligence Surveillance Court (“FISC”) requiring Verizon Business Network Services Inc. (“VBNS”) to turn over, every day, metadata about the calls made by each of its subscribers over the three-month period ending on July 19, 2013. Government officials have indicated that the VBNS order is part of a program that has been in place for seven years and that collects records of all telephone communications of every customer of a major phone company, including Verizon, AT&T, and Sprint."

The plaintiffs in the case are the American Civil Liberties Union (ACLU); American Civil Liberties Union Foundation (ACLUF); New York Civil Liberties Union (NYCLU); and New York Civil Liberties Union Foundation (NYCLUF).

The injunction states "Plaintiffs are non-profit organizations that engage in public education, lobbying, and pro bono litigation upholding the civil rights and liberties guaranteed by the Constitution. Collectively, Plaintiffs have more than 500,000 members, including members in every state. Plaintiffs’ employees routinely communicate by phone with each other as well as with journalists, current and potential clients, legislators and legislative staff, and members of the public. These communications relate to Plaintiffs’ advocacy, representation of clients, and efforts to lobby Congress. Plaintiffs’ communications are sensitive and often privileged."

According to court documents, "As customers of VBNS, Plaintiffs ACLU and ACLUF are covered by the now public order of the FISC requiring VBNS to turn over all of its customers’ call records—including all of Plaintiffs’ call records—on an ongoing basis. Upon information and belief, Plaintiff NYCLU was covered by a similar order prior to the expiration of their contract with VBNS. Also upon information and belief, Plaintiffs ACLU and ACLUF are covered by a similar order directed to Verizon Wireless. The information collected includes Plaintiffs’ numbers, the numbers of their contacts, the time and duration of every single call they placed or received, and the location of Plaintiffs and their contacts when talking on mobile phones. This information could readily be used to identify those who contact Plaintiffs for legal assistance or to report human-rights or civil-liberties violations, as well as those whom Plaintiffs contact in connection with their work. The fact that the government is collecting this information is likely to have a chilling effect on people who would otherwise contact Plaintiffs."

The defendants in the case are James R. Clapper, in his official capacity as Director of National Intelligence; Keith B. Alexander, in his official capacity as Director of the National Security Agency (NSA) and Chief of the Central Security Service (CSS); Charles T. Hagel, in his official capacity as Secretary of Defense; Eric H. Holder, in his official capacity as Attorney General of the United States; and Robert S. Mueller III, in his official capacity as Director of the Federal Bureau of Investigation (FBI).

Resources

ACLU v. James Clapper, Complaint for Declarative and Injunctive Relief

First Amendment, United States Constitution

Fourth Amendment, United States Constitution

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("Patriot Act")

 

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