Deep Dive into First Unitarian Church v. NSA: Why Freedom of Association Matters

One of the many ways EFF is fighting illegal NSA spying is in our lawsuit First Unitarian Church v. NSA.  In this case, we represent 24 organizations that want to protect their freedom of association.  We filed a major brief in this case over the weekend detailing how the NSA’s mass collection of phone records has resulted in decreased calls to and from these organizations – an unconstitutional violation of their First Amendment rights.  Our filing came just after the Executive Branch’s Privacy and Civil Liberties Oversight Board (PCLOB) reached the same conclusion, specifically describing the organizations’ injuries as “entirely predictable and rational.”

But what is this “freedom of association” anyway?  The debate over the NSA spying often focuses on the deep and disturbing privacy violations, but as First Unitarian Church v. NSA shows, there are critically important free speech issues involved as well.  Here’s a deep dive on the issue to explain why freedom of association is so vital to our freedom of speech, and how the NSA’s phone surveillance violates that right.

Privacy in Group Association

In 1956, the State of Alabama accused the local chapter of the NAACP of operating in the state without the proper license.  As part of its lawsuit, the State required the NAACP to turn over its membership list.  The NAACP refused, explaining that if it could not assure its members a meaningful degree of privacy, then people would be discouraged from being members.  The dispute went all the way up to the Supreme Court, which agreed with the NAACP.

The Supreme Court explained that:

“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. . . . This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. . . . 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.”

In later cases, the Supreme Court explained that this freedom of association was a First Amendment right derived both from the freedom of speech and the freedom to peaceably assemble.

The NSA’s First Amendment Violations

The NSA’s phone records dragnet interferes with this “privacy in one’s associations” in the same way as Alabama’s attempt to force the NAACP to disclose its membership list – it reveals who associates with groups such as People for the American Way, Students for Sensible Drug Policy, the Council on American Islamic Relations, and Calguns, a California gun owners organization.

The government, in opposing our lawsuit, was completely tone-deaf to the fact that people do not want the government to know who they call and who calls them, and especially not if this information is gathered and searched over a long period of time like the five years the government currently keeps our telephone records.  The government simply refused to acknowledge that its program was capable of harming the freedom of association.  Instead, it claimed its dragnet was harmless. After all, the government argued, it was only collecting phone numbers, not identities.  So they want us to pretend that the NSA and the FBI don't have access to whitepages.com and many other widely available reverse lookup directories.  The government also claimed that there is no harm in collecting the phone records of millions of innocent Americans because a human did not “access or review” the records.  But the records (and necessarily all of them) are reviewed through multiple computer searches. Finally, the government claimed that people couldn't reasonably be nervous about the potential for the government to misuse the records. Apparently the NSA and the FBI want us to forget the misuse of past secret surveillance programs, such as the illegal COINTELPRO programs that included the wayward investigations of Martin Luther King and John Lennon.

Dozens of Organizations Harmed

In our brief, we highlighted the actual harms that the organizations have suffered:

“The government’s mass collection program has resulted in a decrease in the communications that plaintiffs’ members and associates are willing to have with them, has burdened