Rejecting as blatantly false the Obama administration’s contention that its mass surveillance program has inflicted no harm on American citizens, attorneys for The Rutherford Institute, ACLU, Wikipedia, Amnesty International, Human Rights Watch, and the National Association of Criminal Defense Lawyers will appear in court today to argue in favor of reinstating a First and Fourth Amendment lawsuit against the National Security Agency (NSA), the U.S. Department of Justice and their directors.
In arguing before the Fourth Circuit Court of Appeals, the broad coalition of educational, legal, human rights and media organizations will point out that the NSA’s surveillance program—which is unprecedented in its scope and intrudes on the privacy of Americans’ internet communications and impairs their expressive and associational rights—has chilled lawful First Amendment expression and given rise to self-censorship. The coalition’s arguments are reinforced by a recent study published by the Journalism and Mass Communication Quarterly showing that knowledge of government surveillance causes people to self-censor their dissenting opinions online. A Maryland federal court had dismissed the lawsuit, ruling that the coalition of national and international groups does not have standing to bring the lawsuit against the government.
“On any given day, the average American going about his daily business will be monitored, surveilled, spied on and tracked in more than 20 different ways, by both government and corporate eyes and ears,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Revelations about the NSA’s spying programs only scrape the surface in revealing the lengths to which government agencies and their corporate allies will go to conduct mass surveillance on Americans’ communications and transactions. Senator Ron Wyden was right when he warned, ‘If we do not seize this unique moment in our constitutional history to reform our surveillance laws and practices, we are all going to live to regret it.’”
The lawsuit brought by The Rutherford Institute, the ACLU, Wikipedia, Amnesty International, Human Rights Watch, the National Association of Criminal Defense Lawyers and other educational, legal, human rights and media organizations arises from efforts by the U.S. government since the 9/11 terrorist attacks to increase the surveillance and monitoring of U.S. citizens and foreign nationals. Although Congress had previously authorized the issuance of orders for electronic surveillance of foreign agents for intelligence purposes under the Foreign Intelligence Surveillance Act (FISA) in October 2001, President George W. Bush secretly authorized warrantless interception of emails and telephone calls involving persons within the United States if NSA personnel had a “reasonable basis” to believe one party was connected with al Qaeda. When a judge refused to authorize the continuation of this program, the Bush administration obtained amendments to FISA in 2008 authorizing the acquisition without individualized suspicion of the international communications of U.S. citizens that are with or are about foreigners who the NSA chooses to target.
In carrying out this broad authority under the 2008 law, the NSA has engaged in so-called “Upstream surveillance,” which according to the complaint “involves the NSA’s seizing and searching the internet communications of U.S. citizens and residents en mass as those communications travel across the internet ‘backbone’ in the United States—the network of high-capacity cables, switches and routers that facilitates both domestic and international communications via the internet.” Upstream surveillance encompasses the copying of virtually all international text-based communications, review of the content of those communications by the NSA, and the retention of the copied communications for future use and analysis.
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