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Spying as a form of censorship
Inside the First Amendment

By Paul K. McMasters
First Amendment Center ombudsman
08.27.06

The first federal court decision to address the legality of warrantless eavesdropping on the telephone and Internet conversations of U.S. citizens caused quite a stir when it was handed down Aug. 17.

In that case, ACLU v. National Security Agency, U.S. District Judge Anna Diggs Taylor of the Eastern Michigan District said that the Terrorism Surveillance Program violated the First and Fourth amendments to the Constitution, ran afoul of the Foreign Intelligence Surveillance Act of 1978, didn’t rise to a state-secrets privilege in one important aspect, and strayed beyond the bounds of the president’s authority under the separation-of-powers and inherent-powers doctrines.

Defenders of the surveillance program said the judge was wrong in her conclusions, that her reasoning was weak, that the ruling was bound to be overturned by higher courts and that, besides, she was a liberal.

The opinion has critics from both sides. Howard J. Bashman, who maintains the authoritative legal weblog “How Appealing,” told The New York Times: “It does appear that folks on all sides of the spectrum, both those who support it and those who oppose, say the decision is not strongly grounded in legal authority.”

The question of whether the decision will survive the appeals process aside, there are a number of similar clashes between national security and personal liberties showing up on court dockets across the nation.

In Maine on Aug. 21, federal prosecutors went to court to keep state utility regulators and Verizon from revealing information about whether the company violated laws protecting customer calling data and other confidential records by participating in the NSA’s domestic-surveillance program. The U.S. Justice Department has filed similar suits in Missouri and New Jersey.

Last month, a federal judge in California turned back the government’s efforts to invoke the state-secrets privilege to dismiss a lawsuit in which the Electronic Frontier Foundation charged that AT&T was cooperating with the NSA in spying on the domestic and international communications of Americans.

In all, more than 17 class-action lawsuits from 13 different federal court districts alleging telecommunications companies’ complicity in government eavesdropping on private communications have been consolidated in the court of U.S. District Judge Vaughn Walker in San Francisco.

These important cases pit the federal government and telecommunications companies against civil liberties and privacy organizations. All parties insist they are acting in the best interests of the nation and its citizens.

The ultimate stakeholders: millions of U.S. citizens whose telephone and Internet conversations could wind up in an impersonal government database or in the cross-hairs of anti-terrorism investigators.

Although the ACLU v. NSA decision may not have a direct impact on the other cases, it does raise the essential issue of how best to reconcile the needs of protecting national security and individual freedoms.

The First Amendment is invoked in most of these legal battles.

In the ACLU case, three groups of citizens — lawyers, journalists and scholars — claimed that the warrantless eavesdropping program injured their freedom of speech and association because they “conducted regular international telephone and internet communications for various uncontestedly legitimate reasons including journalism, the practice of law, and scholarship.”

Judge Taylor noted in her opinion that “the court need not speculate upon the kind of activity the Plaintiffs want to engage in — they want to engage in conversations with individuals abroad without fear that their First Amendment rights are being infringed upon.”

Those rights always are at risk when government spying programs are formulated without careful attention to balancing the good done for security against the harm done to liberty.

Unfortunately, these needs often are lost in partisan arguments that lay out the issue simplistically as a battle between those who are for security and don’t care about freedom and those who care only about freedom and not about security.

That presents a false choice, as if there were no ways to develop policies and programs that resolve the conflict between potential harm to our security and the potential damage to our rights.

To approach the problem any other way is to create an environment in which citizens fear their government instead of or in addition to their enemies.

If security trumps freedom, then the question arises as just what it is that we are protecting. Freedom of speech, even dissent, is not just at the core of our freedom, it is an essential component of security.

Ordinary citizens as well as their leaders should never forget that all Americans should feel secure in their right to speak freely and engage in other First Amendment-protected activities without self-censoring their opinions, curtailing their associations or looking over their shoulders.

Interestingly, the final words of Judge Taylor’s ruling are from Supreme Court Justice Earl Warren’s 1967 opinion in U.S. v. Robel: “Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. … It would indeed be ironic if, in the name of national defense, we would sanction the subversion of … those liberties.”

Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. Web: firstamendmentcenter.org. E-mail: pmcmasters@fac.org.


Related

Judges consolidate 17 domestic-spying lawsuits

Panel sends combined cases, which accuse phone companies of helping NSA monitor Americans' communications without warrants, to federal judge who recently refused to dismiss one of the cases. 08.11.06

Warrantless-wiretapping program struck down
Federal judge in Detroit finds National Security Agency program violates rights of free speech, privacy. 08.17.06

Feds sue to block disclosure of confidential information
Complaint follows Aug. 9 order by Maine utility regulators that Verizon attest to its previous public comments about NSA's eavesdropping program. 08.22.06

Attorney general: Congress should force ISPs to save user data
Testifying before Senate panel, Alberto Gonzales acknowledges concerns that legislation might be overly intrusive, but says growing threat of online child porn is too great. 09.20.06

Court allows wiretapping program to continue for 7 days
Federal judge who struck down warrantless-surveillance program postpones ruling for another week while government seeks stay from 6th Circuit. 09.29.06

6th Circuit allows warrantless surveillance to continue for now
Judges say they balanced likelihood of success of government's appeal, potential damage to either side and the public interest. 10.05.06

Federal judge rejects request for NSA wiretapping records
People for the American Way had sued to obtain documents under FOIA to find out how many wiretaps were approved, who reviewed secret program. 11.22.06

ACLU urges 6th Circuit to preserve domestic-spying case
Justice Dept. says suit should be dismissed since program now is monitored by secret court, but ACLU says case should continue because president still claims authority for warrantless surveillance. 01.27.07

White House seeks more time to answer wiretapping subpoenas
Senate Judiciary chairman threatens to hold key Bush officials in contempt for not producing information about legal justification for eavesdropping program. 08.21.07

High court turns away challenge to domestic-spying program
6th Circuit previously found that plaintiffs couldn’t prove whether their communications had been monitored. 02.19.08

Criminalizing speech to protect secrets
By Paul K. McMasters The specter of an 'official secrets act' rises again, casting a pall over free speech, free flow of information and government accountability. 08.13.06

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