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Friends in High Places Support NSA Call-Tracking Lawsuit

Smartphone with courthouse application selected.
Smartphone with courthouse application selected.
Brett Max Kaufman,
Senior Staff Attorney,
ACLU Center for Democracy
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March 14, 2014

One week after the ACLU filed the first appellate brief challenging the government’s bulk collection of Americans’ phone records under Section 215 of the Patriot Act, we’re getting a little help from our friends. Yesterday, seven prominent and diverse organizations filed friend-of-the-court briefs in support of our challenge, which is now before the U.S. Court of Appeals for the Second Circuit in New York.

It is rare to see such a diverse group of amici supporting one side of the docket — which simply goes to show the breadth of the emerging pan-partisan consensus that the government’s bulk phone-records program violates Americans’ privacy and the Constitution. Below is a list of the seven amici, along with a preview of their briefs.

  • Experts in Computer & Data Science: This brief, filed by our friends at the Electronic Frontier Foundation, gets its message across in the very first line — “It is not just metadata” — and goes on to authoritatively underscore the sensitivity of metadata, which can reveal highly personal and intimate details of our lives.
  • National Rifle Association: As it did in the district court, the NRA filed an amicus brief that focuses on the threat that the government’s bulk collection of metadata presents to Americans’ First Amendment rights and to privacy statutes like those governing gun registration.
  • Senators Ron Wyden, Mark Udall, and Martin Heinrich: Three senators who sit on the Senate Select Committee on Intelligence make clear that they have “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 means that caused far less harm to the privacy interests of millions of Americans.”
  • Former Members of the Church Committee & Law Professors: A large group of former congressional officials and law professors provides crucial context about the history of NSA abuses that led to wholesale surveillance reforms in the 1970s, and explains why the government’s phone-records program is inconsistent with those reforms.
  • PEN American Center: A prominent non-profit association of writers — including poets, playwrights, essayists, novelists, editors, screenwriters, literary agents, and translators — makes a powerful case that the NSA’s phone-records program has a profoundly negative impact on writers by “intrud[ing] upon a personal zone of privacy that is essential to freedom of expression and association.”
  • Association of the Bar of the City of New York: This professional organization of more than 24,000 lawyers has a pedigree defending the rule of law dating back to 1870. In its brief, the City Bar takes on the district court’s conclusion that a decades-old precedent about a narrow use of phone-records collection, Smith v. Maryland, settles the question of whether the bulk phone-records program violates the Fourth Amendment. The City Bar concludes that the district court’s analysis “compromised the fundamental right of privacy that is at the heart of both individual liberty and the rule of law.”
  • Rutherford Institute: A leading advocate of civil liberties and human rights in the United States for more than 30 years, the Rutherford Institute argues that the bulk phone-records program amounts to nothing more than a “modern-day general warrant” — precisely the kind of unrestrained government search with which the Founders were most concerned when drafting the Fourth Amendment.

Together with the ACLU’s filing last week, these briefs surely give the government much to consider before it files its opposition brief in the Second Circuit on April 10.

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