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NRA Files Friend of the Court Brief in Case Challenging NSA's Dragnet Data Collection

Friday, January 17, 2014

On September 4, 2013, NRA filed a brief in the U.S. District Court for the Southern District of New York in support of an American Civil Liberties Union suit against Director of National Intelligence James Clapper. The suit challenges the National Security Administration’s mass collection of communication data under Section 215 of the Patriot Act, on the grounds that the program is not authorized by that provision of law and violates Americans’ First and Fourth Amendment rights. The NRA brief focuses on arguments that NSA’s data collection program violates the First Amendment rights of NRA members by “potentially chilling their willingness to communicate,” and that the NSA program could circumvent statutory protections barring the federal government from collecting gun ownership records.

The NRA’s brief cites the Supreme Court’s decision in National Association for Advancement of Colored People v. State of Alabama in setting forth its First Amendment claim. In that case, the Court recognized “the vital relationship between freedom of association and privacy in one’s association,” and determined that, “compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association” as more obvious restrictions. The brief goes on to note that in the years since the NAACP ruling, the Court has in some cases required a group to face “public hostility” or other threats in order to find that compulsory disclosure of a group’s members violates the First Amendment. Drawing on events since December 2012, including remarks made by the President and Vice President, the brief makes a compelling case that NRA members face hostility from certain public officials and other groups.

The brief explains that NSA’s reported collection programs -- encompassing metadata pertaining to telephone calls, emails, Internet browsing, and even geographic location -- amounts to an involuntary disclosure of data on nearly all who communicate with NRA. This information, when coupled with modern data-mining techniques, further puts NRA members’ ability to communicate privately at risk, and is inconsistent with federal statutes protecting gun owners from the centralization of gun ownership data.

In noting the long history of statutory protections against the centralization of firearms data which could be circumvented by the NSA’s data collection apparatus, the brief states: “Congress has consistently acted to protect the privacy interests of gun owners, not only before the enactment of the Patriot Act.” The brief cites Sen. James McClure’s 1985 statement on the Gun Control Act of 1968, in which he said, “The Central compromise of the Gun Control Act… was this: Records concerning gun ownership would be maintained by dealers, not by the Federal Government.” A year later, the Firearms Owners’ Protection Act was enacted and barred the establishment of “any system of registration of firearms, firearms owners, or firearm transactions or dispositions.” The 1993 legislation which established the National Instant Criminal Background Check System contained a section entitled, “Prohibition Relating to Establishment of Registration Systems With Respect to Firearms,” barring any government agency or employee from “requir[ing] that any record or portion thereof generated by the system… be recorded at or transferred to a facility owned, managed, or controlled by the United States,” or from “us[ing] the system established... to establish any system for the registration of firearms, firearm owners, or firearms transactions.” Further, the Congress has consistently enacted appropriations amendments that have barred federal funds from being spent on any effort to consolidate data on firearm dispositions. The brief argues that it is inconceivable, given the repeated congressionally-enacted protections of gun owners’ rights, that a proper interpretation of the PATRIOT Act would undo these provisions.

The brief is careful to make clear that the NRA is a staunch supporter of legitimate law enforcement and national security measures, citing examples of NRA assistance in training law enforcement and military personnel and noting that NRA’s “Purposes and Objectives” outlined in the organization’s bylaws support “promot[ing] public safety, law and order, and the national defense.” However, this support does not extend to law enforcement or national security practices that violate the Constitution.

NRA’s participation in the NSA surveillance case is important in order to help protect our organization and members’ ability to communicate effectively and privately about controversial issues, and to protect the privacy of all gun owners. 

On December 27, 2013, as this issue of Legal Update was being finalized, U.S. District Judge William H. Pauley III issued an order and memorandum opinion granting the government’s motion to dismiss the ACLU’s complaint  and denying the plaintiffs’ request for a preliminary injunction.  Regarding the First Amendment issues raised by plaintiffs, Judge Pauley found that the claimed chilling effect of the NSA programs was too speculative to rise to the level of a substantial intrusion on First Amendment association. “There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks,” he wrote.  He also ruled adversely to the plaintiff’s statutory and Fourth Amendment claims.  In doing so, Judge Pauley repeatedly focused on the necessity of deferring to the government in matters where it claims to be acting against terrorism.

Concluding the opinion, Judge Pauley found that even if he were required to balance the equities in making a determination on the plaintiffs’ request for an injunction, he would still rule in favor of the of the government.  In this regard, he relied on the importance of the government’s asserted national security interests, the predominant role of the Executive Branch in protecting national security, the government’s claims that the program had already yielded beneficial results, and the various secret decisions of the Foreign Intelligence Surveillance Court which had approved the activities.

The ACLU has already announced its intention to appeal the decision to the Second Circuit Court of Appeals.  Moreover, shortly before Judge Pauley issued his decision in the Southern District of New York, Judge Richard Leon of the U.S. District Court for the District of Columbia made a contrary ruling in Klayman v. Obama, a similar case filed in that district.  Judge Leon granted, in part, an injunction in that case but stayed his order while the government pursued its appeal. 

Clearly, litigation and public debate concerning security and privacy will continue.  Count on NRA to report upon any further developments that affect its members’ interests.

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