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THE LAWSUIT, HOW IT AFFECTS US, WHAT WE CAN DO First Unitarian Church of LA, et al. v. NSA, et al. Unitarian Universalist Breakfast Forum Sunday, December.

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Presentation on theme: "THE LAWSUIT, HOW IT AFFECTS US, WHAT WE CAN DO First Unitarian Church of LA, et al. v. NSA, et al. Unitarian Universalist Breakfast Forum Sunday, December."— Presentation transcript:

1 THE LAWSUIT, HOW IT AFFECTS US, WHAT WE CAN DO First Unitarian Church of LA, et al. v. NSA, et al. 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

2 Oliver Wendell Holmes Supreme Court Justice “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)

3 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)

4 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.

5 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…”

6 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)

7 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.

8 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

9 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)

10 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)

11 Great Moments: Church Committee Operations SHAMROCK and MINARET - WWII-era origins, monitored millions of telegrams through “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

12 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.

13 USA PATRIOT Act Introduced on October 23, 2001 by Rep. Sensenbrenner, F. Signed by President. George W. Bush on October 26, 2001.

14 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.

15 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

16 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).

17 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, 2003Common Dreams

18 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 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.

19 First Unitarian Church of Los Angeles, et al. v. NSA, et al. CV 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, 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 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.

20 Plaintiffs Defendants 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 National Security Council Keith Alexander, NSA 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 First Unitarian Church of LA, et al. v. NSA, et al.

21 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 and Internet data from U.S. companies.

22 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

23 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

24 Partial Summary Judgment Count I The telephone records program is unlawful under the First Amendment. Bulk Metadata Collection Violates First Amendment Right of Association because: 1.Exacting Constitutional Scrutiny 2.Prima Facie Showing 3. Not Carefully Tailored

25 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”

26 Defendants’ Motion to Dismiss; Opp. To Motion for Partial Summary Judgment Hearing: April 25, 2014 Oakland, California

27 Administration White Paper Bulk Collection of Telephony Metadata Under Section 215 of the USA Patriot Act

28 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 ConspiracyVolokh Conspiracy

29 Opposition to Partial Summary Judgment Hearing: April 25, 2014 Oakland, California The plaintiffs’ case should be dismissed because: 1. No Standing 2.No Judicial Review 3.Ratification 4.Section No constitutional violation

30 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

31 Opposition to Partial Summary Judgment Hearing: April 25, 2014 Oakland, California The plaintiffs’ case should be dismissed because: 1. Standing 2.No Judicial Review 3.Ratification 4.Section No constitutional violation

32 Bulk Collection Source: MetaPhone: The NSA Three-Hop, Web Policy Blog (Dec. 9, 2013)MetaPhone: The NSA Three-Hop

33 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)MetaPhone: The NSA Three-Hop

34 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)MetaPhone: The NSA Three-Hop

35 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

36 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

37 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

38 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

39 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 Peter Fenn Chief of Staff for Sen. Frank Church “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.” Experts in the History of Executive Surveillance

40 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)

41 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)

42 Robert Reich Chancellor’s Prof. of Public Policy, UC Berkeley, former US Secretary of Labor “US security depends less on American intelligence than on the intelligence of Americans.” Twitter (November 29, 2013)

43 First Unitarian Church of LA, et al. v. NSA, et al. Hearing on Plaintiffs’ Motion for Partial Summary Judgment Friday, April 25, am US District Court, Northern District of California 1301 Clay Street Oakland, California 94612

44 THE LAWSUIT, HOW IT AFFECTS US, WHAT WE CAN DO First Unitarian Church of LA, et al. v. NSA, et al. 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

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