First Unitarian Church of LA, et al.
v.
NSA, et al.
THE LAWSUIT,
HOW IT AFFECTS US,
WHAT WE CAN DO
Unitarian Universalist Breakfast Forum
Sunday, December 15, 2013, 9:15 am
Martin Luther King Room
First Unitarian Universalist Church, San Francisco
1187 Franklin Street at Geary
Oliver Wendell
Holmes
Supreme Court Justice
1902-1932
“The life of the law has not been
logic; it has been experience [...]
The law embodies the story of a
nation’s development through
many centuries, and it cannot be
dealt with as if it contained only the
axioms and corollaries of a book of
mathematics.
The Common Law (1881)
James
Madison
Federalist No. 51
“The Structure of
the Government
Must Furnish the
Proper Checks
and Balances
Between the
Different
Departments”
“In framing a government which is to
be administered by [people] over
[people], the great difficulty lies in
this: you must first enable the
government to control the governed;
and in the next place oblige it to
control itself. A dependence on the
people is, no doubt, the primary
control on the government; but
experience has taught mankind the
necessity of auxiliary precautions.”
Independent Journal (Feb. 6, 1788)
Amendment I
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress
of grievances.
The Trial of
William Penn
and William Mead
“William Penn […] with divers other persons
to the jurors unknown, to the number of 300,
the 14th day of August in the 22d year of the
king, about eleven of the clock in the forenoon
[…] in Bridge-ward, London, in the street
called Grace-church street, unlawfully and
tumultuously did assemble and congregate
themselves together […] the aforesaid William
Penn, […] then and there, in the open street,
did take upon himself to preach and speak,
and then and there did preach and speak unto
the aforesaid William Mead, and other
persons there, in the street aforesaid, being
assembled and congregated together, by
reason whereof a great concourse and tumult
of people in the street aforesaid, then and
there, a long time did remain and continue, in
contempt of the said lord the king, and of his
law…”
Great Moments in Right of Association Law
“[T]he 1st Amendment, although in form prohibitory, is to be regarded as having a
reflex character, and as affirmatively recognizing […] rights belonging to citizens of the
United States; that is, those rights are to be deemed attributes of national citizenship or
citizenship of the United States. Patterson v. People of State of Colorado ex rel.
Attorney Gen. of State of Colorado, 205 U.S. 454, 464 (1907)
“[I]ndirect ‘discouragements’ undoubtedly have the same coercive effect upon the
exercise of First Amendment rights as imprisonment, fines, injunctions or taxes. A
requirement that adherents of particular religious faiths or political parties wear
identifying arm-bands, for example, is obviously of this nature. American
Communications Ass’n, C.I.O., v. Douds, 339 U.S. 382, 402 (1950)
“Inviolability of privacy in group association may in many circumstances be
indispensable to preservation of freedom of association, particularly where a group
espouses dissident beliefs.” National Ass’n for Advancement of Colored People v. State
of Ala. ex rel. Patterson, 357 U.S. 449, 462 (1958)
“An individual’s freedom to speak, to worship, and to petition the government for the
redress of grievances could not be vigorously protected from interference by the State
unless correlative freedom to engage in group effort toward those ends were not also
guaranteed.” Roberts v. United States Jaycess, 468 U.S. 609, 622 (1984)
Amendment IV
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.
Paxton’s Case
“Custom-house officers may enter our
houses when they please; we are
commanded to permit their entry.
Their menial servants may enter, may
break locks, bars, and everything in
their way; and whether they break
through malice or revenge, no man, no
court may inquire.
[T]he writ prayed for in this petition,
being general, is illegal. It is a power
that places the liberty of every man in
the hands of every petty officer . . .”
James Otis, Jr., 1761
Great Moments: SCOTUS Checks Executive Spying
“The price of lawful public dissent must not be a dread
of subjection to an unchecked surveillance power. Nor
must the fear of unauthorized official eavesdropping
deter vigorous citizen dissent and discussion of
Government action in private conversation. For
private dissent, no less than open public discourse, is
essential to our free society.”
U.S. v. U.S. Dist. Court for Eastern Dist. of Mich.,
Southern Division, 407 U.S. 297, 314 (1972)
Great Moments: Church Committee
“If this government ever became a tyrant, if a dictator
ever took charge in this country, the technological
capacity that the intelligence community has given the
government could enable it to impose total tyranny,
and there would be no way to fight back because the
most careful effort to combine together in resistance to
the government, no matter how privately it was done,
is within the reach of the government to know. Such is
the capability of this technology.”
Sen. Frank Church (Aug. 17, 1975)
Great Moments: Church Committee
Operations SHAMROCK and MINARET
- WWII-era origins, monitored millions of telegrams
through 1975
- “Watch list” surveillance expanded from threats to
President to law-abiding citizens
- Post-WWII targets included Martin Luther King, Jr.,
Joan Baez, Sen. Adlai Stevenson, White House advisors,
Congressional staff members, journalists, Black
Panthers, Vietnam War protestors
Foreign Intelligence
Surveillance Act
(FISA)
Introduced on May 18,
1977, by Senators
Kennedy, Bayh,
Eastland, Garn,
Huddleston, Inouye,
Mathias, McClellan,
Nelson and Thurmond.
Signed by President
Carter on Oct. 25, 1978.
USA PATRIOT
Act
Introduced on October
23, 2001 by Rep.
Sensenbrenner, F.
Signed by President.
George W. Bush on
October 26, 2001.
50 USC § 1861
(a)(1) [T]he Director of the
Federal Bureau of Investigation
or a designee of the Director
(whose rank shall be no lower
than Assistant Special Agent in
Charge) may make an
application for an order
requiring the production of any
tangible things (including
books, records, papers,
documents, and other items) for
an investigation to obtain
foreign intelligence information
not concerning a United States
person or to protect against
international terrorism or
clandestine intelligence
activities, provided that such
investigation of a United States
person is not conducted solely
upon the basis of activities
protected by the first
amendment to the Constitution.
50 USC § 1861
(b) Each application under this section
(2) shall include—
(A) a statement of facts showing that there
are reasonable grounds to believe that the
tangible things sought are relevant to an
authorized investigation (other than a
threat assessment) conducted in
accordance with subsection (a)(2) to
obtain foreign intelligence information not
concerning a United States person or to
protect against international terrorism or
clandestine intelligence activities, such
things being presumptively relevant to an
authorized investigation if the applicant
shows in the statement of the facts that
they pertain to—
(i) a foreign power or an agent of a foreign
power;
(ii) the activities of a suspected agent of a
foreign power who is the subject of such
authorized investigation; or
(iii) an individual in contact with, or
known to, a suspected agent of a foreign
power who is the subject of such
authorized investigation; and
50 USC § 1861
(c)(1) [I]f the judge finds that the
application meets the requirements of
subsections (a) and (b), the judge shall
enter an ex parte order as requested,
or as modified, approving the release
of tangible things. Such order shall
direct that minimization
procedures adopted pursuant to
subsection (g) be followed.
(2) An order under this subsection—
(A) shall describe the tangible things
that are ordered to be produced with
sufficient particularity to permit
them to be fairly identified;
(D) may only require the production of
a tangible thing if such thing can be
obtained with a subpoena duces tecum
issued by a court of the United States
in aid of a grand jury investigation or
with any other order issued by a court
of the United States directing the
production of records or tangible
things; and
(E) shall not disclose that such order is
issued for purposes of an investigation
described in subsection (a).
Effects of USA
PATRIOT Act
“When this kind of power is
used in the regular criminal
justice system, there are
some built-in checks and
balances,” said David
Sobel, general counsel of
the Electronic Privacy
Information Center (EPIC),
which is suing the Justice
Department for
information about its
secretive anti-terrorism
strategies. “The intelligence
context provides no such
protection. That’s the main
problem with these kinds
of secretive procedures.”
Source: Common Dreams,
March 24, 2003
Jewel v. NSA
Shubert v. NSA
Filed in 2008, Jewel v. NSA is
aimed at ending the NSA’s
dragnet surveillance of millions
of ordinary Americans and
holding accountable the
government officials who
illegally authorized it.
Shubert v. Obama is a class
action on behalf of all
Americans against the
government, alleging a massive,
indiscriminate, illegal National
Security Agency (NSA) dragnet
of the phone calls and email of
tens of millions of ordinary
Americans. Filed in
2006, Shubert is now the
longest running case against the
government seeking to stop the
domestic spying program.
First Unitarian
Church of Los
Angeles, et al. v.
NSA, et al.
CV-13-3287 JSW, Filed July 16, 2013
The case challenges the mass
telephone records collection
that was confirmed by the FISA
Order that was published on
June 5, 2013 and confirmed by
the Director of National
Intelligence (DNI) on June 6,
2013. The DNI confirmed that
the collection was “broad in
scope” and conducted under the
“business records” provision of
the Foreign Intelligence
Surveillance Act, also known as
section 215 of the Patriot Act
and 50 U.S.C. section 1861.
The case does not include
section 702 programs, which
includes the recently made
public and called the PRISM
program or the fiber optic
splitter program that is included
(along with the telephone
records program) in the Jewel
v. NSA case.
First Unitarian Church of LA, et al. v. NSA, et al.
Plaintiffs
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First Unitarian Church of Los Angeles
Unitarian Universalist Service Committee
The National Lawyers Guild
Greenpeace, Inc.
Council on American-Islamic Relations
Human Rights Watch
People for the American Way
California Association of Federal Firearms Licensees
Franklin Armory
The Calguns Foundation
Free Software Foundation
Public Knowledge
Free Press
Acorn Active Media Foundation
Patient Privacy Rights
The Shalom Center
Charity and Security Network
TechFreedom
Students for Sensible Drug Policy Foundation
NORML, California Chapter
Media Alliance
Bill of Rights Defense Committee
Defendants
 National Security Council
 Keith Alexander, NSA
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Director
United States of America
Department of Justice
Eric Holder, Attorney General
John Carlin, Asst. A. G.
Federal Bureau of
Investigation
Robert Mueller, FBI Director
James Clapper, DNI
Does 1-100
FBI role in
domestic
surveillance:
- Data Intercept
Technology Unit
(DITU) is “primary
liaison between [NSA]
and many of America's
most important
technology companies,
including Google,
Facebook, YouTube,
and Apple.”
- FBI conducts “signals
intelligence” operations
that collect email and
Internet data from U.S.
companies.
First Unitarian Church of LA, et al. v. NSA, et al.
Count I: Violation of First Amendment
Count II: Violation of Fourth Amendment
Count III: Violation of Fifth Amendment
Count IV: Violation of 50 U.S.C. § 1861
Count V: Motion for return of illegally seized property
Plaintiffs’ Motion
for Partial Summary
Judgment
“The Telephone
Records Program Is
Unlawful Under Section
215 of the Patriot Act
and the First
Amendment”
Hearing:
April 25, 2014
Oakland, California
Partial
Summary
Judgment
Bulk Metadata Collection Violates
First Amendment Right of
Association because:
Count I
The telephone records
program is unlawful
under the First
Amendment.
1.
Exacting Constitutional
Scrutiny
2.
Prima Facie Showing
3.
Not Carefully Tailored
Partial
Summary
Judgment
Count IV
The telephone records
program is unlawful
under section 215 of the
patriot act.
The government’s PATRIOT Act
argument (and the FISC’s
acceptance of it) is wrong for three
reasons:
1.
“Relevance”
2.
Sections 2702 and 2703 of
the SCA
3.
“Tangible things”
Defendants’ Motion
to Dismiss; Opp. To
Motion for Partial
Summary Judgment
Hearing:
April 25, 2014
Oakland, California
Administration
White Paper
Bulk Collection of
Telephony Metadata
Under Section 215 of
the USA Patriot Act
The Problem With
the Administration
“White Paper”
“Although the white
paper raises some
interesting points, it
also fails to confront
counterarguments and
address contrary
caselaw.”
Source: Volokh
Conspiracy
Opposition to
Partial Summary
Judgment
The plaintiffs’ case should be
dismissed because:
1.
No Standing
2.
No Judicial Review
3.
Ratification
4.
Section 215
5.
No constitutional violation
Hearing:
April 25, 2014
Oakland, California
Standing
Cases and
Controversies Clause
Injury must be:
1. concrete,
particularized, and
actual or imminent;
2. fairly traceable to the
challenged action; and
3. redressable by a
favorable ruling.
“The judicial Power shall extend to
all Cases, in Law and Equity, arising
under this Constitution, the Laws of
the United States, and Treaties
made, or which shall be made,
under their Authority; […] --to
Controversies to which the United
States shall be a Party […]
Constitution of the United States, Art. III, Sec. 2,
Clause 1
Opposition to
Partial Summary
Judgment
The plaintiffs’ case should be
dismissed because:
1.
Standing
2.
No Judicial Review
3.
Ratification
4.
Section 215
5.
No constitutional violation
Hearing:
April 25, 2014
Oakland, California
Bulk
Collection
Source: MetaPhone:
The NSA Three-Hop,
Web Policy Blog (Dec.
9, 2013)
Bulk
Collection
“If an average person
has 40 contacts, then
three hops are sufficient
to reach 2.5 million
numbers.”
Tens of thousands of
qualified seed numbers.
Source: MetaPhone:
The NSA Three-Hop,
Web Policy Blog (Dec.
9, 2013)
Bulk
Collection
“Under current FISA
Court orders, the NSA
may be able to analyze
the phone records of a
sizable proportion of
the United States
population with just
one seed number.”
Source: MetaPhone:
The NSA Three-Hop,
Web Policy Blog (Dec.
9, 2013)
Amici Curiae
“Friends of the
Court”
Sen. Ron Wyden
member Senate Select
Committee on Intelligence
Sen. Mark Udall
member Senate Select
Committee on Intelligence
Sen. Martin Heinrich
member Senate Select
Committee on Intelligence
“Amici have seen no evidence that the
bulk collection of Americans’ phone
records […] is uniquely necessary to the
national security of the United States.”
“The government possesses a number of
legal authorities with which it may obtain
the call records of suspected terrorists
and those in contact with suspected
terrorists.”
“The government’s legal interpretation
[…] could be extended to authorize bulk
collections of Americans’ data beyond the
call records at issue.”
Sen. Ron Wyden, Sen. Mark Udall, Sen. Martin Heinrich
Amici Curiae
“Friends of the
Court”
National Association
of Criminal Defense
Lawyers
nonprofit voluntary
professional bar association
“Wholesale collection deprives clients of
their right to counsel by vitiating the
confidentiality of attorney-client
communications and attorney files.”
“Bulk seizure violates confidentiality rules
and impairs the right to a defense.”
“It would be much easier to deter crime if
the authorities could place video and
audio recording devices in every home,
and tracking devices on every citizen [...]
But utility and efficiency do not trump
Constitutional rights.”
National Association of Criminal Defense Lawyers
Amici Curiae
“Friends of the
Court”
PEN American
Center
nonprofit association of
writers, including poets,
playwrights, essayists,
novelists, editors,
screenwriters, journalists,
literary agents and
translators
“Writers have changed their behavior
because they know the government is
recording information about their calls.
Writers are avoiding communicating with
sources, colleagues and friends; they are
avoiding writing about certain topics; and
writers are not pursuing topics they
otherwise would. ”
“To make original contributions to public
discourse, writers must be confident that
they protected by a zone of privacy. The
Constitution protects that zone of
privacy.”
PEN American Center
Amici Curiae
“Friends of the
Court”
Reporters Committee
for Freedom of the
Press
and
13 Other News
Organizations
“There is a long history of journalists
breaking significant stories by relying
on information from confidential
sources. ”
“Confidential relationships between
source and journalist are critical for
effective reporting and an informed
public, and communications between
the two regularly require the use of
telephones. Government monitoring
via mass call tracking limits
journalists’ ability to gather
information in the public interest.”
Reporters Committee for Freedom of the Press and
13 Other News Organizations
Amici Curiae
“Friends of the
Court”
James Bamford
analyst U.S. Naval
Intelligence, author
Loch Johnson
Regents Prof. of Poli. Sci.,
University of Georgia,
former staff director of
House Subcommitte on
Intelligence Oversight
“History demonstrates that, in the
absence of proper oversight, executive
surveillance programs expand in
purpose, collect ever-greater volumes
of information, and are operated
without sufficient regard for their
legality or effectiveness.”
“Executive officials responsible for
surveillance programs naturally shield
their activities from scrutiny,
encouraging expansion and impeding
necessary oversight.”
Peter Fenn
Chief of Staff for Sen. Frank
Church
Experts in the History of Executive Surveillance
Chris Hedges
Journalist, activist
“The slow advances we made in the
early 20th century through unions,
government regulation, the New Deal,
the courts, an alternative press and
mass movements have been reversed.
The oligarchs are turning us—as they
did in the 19th century steel and textile
factories—into disposable human
beings. They are building the most
pervasive security and surveillance
apparatus in human history to keep us
submissive.”
“Let’s Get This Class War Started” (Oct. 20,
2013)
Philip Agee
Former CIA officer,
author, activist
“Now, more than ever, each of us is
forced to make a conscious choice
whether to support the system of
minority comfort and privilege with all
its security apparatus and repression,
or whether to struggle for real equality
of opportunity […] It’s harder now not
to realize that there are two sides,
harder not to understand each, and
harder not to recognize that like it or
not we contribute day in and day out
either to the one side or the other.’
Inside The Company: CIA Diary (1975)
Robert Reich
“US security depends less on
American intelligence than on the
intelligence of Americans.”
Twitter (November 29, 2013)
Chancellor’s Prof. of Public
Policy, UC Berkeley,
former US Secretary of
Labor
First Unitarian Church of LA, et al. v. NSA, et al.
Hearing on Plaintiffs’ Motion for Partial Summary
Judgment
Friday, April 25, 2014
9 am
US District Court, Northern District of California
1301 Clay Street
Oakland, California 94612
First Unitarian Church of LA, et al.
v.
NSA, et al.
THE LAWSUIT,
HOW IT AFFECTS US,
WHAT WE CAN DO
Unitarian Universalist Breakfast Forum
Sunday, December 15, 2013, 9:15 am
Martin Luther King Room
First Unitarian Universalist Church, San Francisco
1187 Franklin Street at Geary