Nov 19 4:45 PM

Does NSA surveillance challenge political groups' First Amendment rights?

Gene Hoffman of the Calguns Foundation (left) speaks with America Tonight's Michael Okwu.

Gene Hoffman knows that the members of his gun-rights group are nervous.

Hoffman, a Silicon Valley entrepreneur, founded the Calguns Foundation to advocate on behalf of gun owners. His tastes are a little different from your average gun enthusiast – more Mercedes than Ford pickup – but his passion for firearms runs deep. And he’s concerned that his rights are coming under fire from the federal government. His foe, however, isn't liberals in Congress. Now, it's the National Security Agency.

For Hoffman, the NSA surveillance program has had a real impact on the lives of ordinary Americans. Hoffman’s group runs a telephone hotline that provides legal advice to gun owners. It makes Hoffman uneasy that the NSA is likely keeping records of these phone calls, like nearly every phone call in the United States.

“I need people to be confident that they can join my organization,” Hoffman told America Tonight, “and the fact that there's a record being kept of who's in my group and who's not in my group, indirectly but effectively enough, is very chilling to our membership.” He added: “I know I have users not contacting me because they are afraid.”

Many groups have accused the NSA of violating Americans’ privacy, but Hoffman is one of the first to claim the NSA’s surveillance program is illegal on First Amendment grounds. It’s an approach that is gaining much wider acceptance. Recently, Hoffman’s group joined 18 politically active organizations in filing a lawsuit against the NSA, arguing that the agency’s activities violate their right to free speech. Five more joined in September. (The list of plaintiffs, a diverse group ranging from the Unitarian Church to pro-marijuana groups, can be found below in the PDF version of the lawsuit.)

The legal team behind the lawsuit is the Electronic Frontier Foundation, an organization that fights for free speech and privacy rights. Cindy Cohn, its legal director, believes she has a good case. The Supreme Court already recognized the effect that government surveillance can have on free speech in the 1950s. In 1958, Alabama had demanded that the NAACP turn over its membership rolls. But in NAACP v. Alabama, the Supreme Court unanimously ruled that this violated the members' constitutional rights to "pursue their lawful private interests privately and to associate freely with others..."

“What we’re doing is the digital version of that, because who you talk to on the phone, how long you talk to them, how often you talk to them, well, those are your associations,” Cohn told America Tonight. 

A chilling effect

Director of National Intelligence James Clapper testified on Capitol Hill last month before the House Intelligence Committee.
Director of National Intelligence James Clapper testified on Capitol Hill last month before the House Intelligence Committee. He has faced anger over revelations about U.S. spying at home and abroad.
AP Photo/ Evan Vucci

One of the plaintiffs in the lawsuit has already dealt with government surveillance firsthand. In 2004, the FBI, which works closely with the NSA, began spying on Muslims in the Bay Area, and passing information along to intelligence officials. Zahra Billoo, the executive director of the Bay Area office of the Council on American-Islamic Relations, learned about the FBI’s surveillance in documents obtained through a Freedom of Information Act request. Billoo discovered that undercover agents had been visiting her mosque. 

“I go to the mosque multiple times a week,” Billoo told America Tonight, “and so to think that at any given day or at any given event there could have been an FBI agent there taking down notes and putting those notes in intelligence files is really frightening.” Billoo added: “We hear from American Muslims who are saying, ‘I’m afraid to practice my religion. I’m afraid to go to the mosque and become politically involved.’ And that itself is chilling.”

The Justice Department, which is defending the government in the lawsuit, declined an interview with America Tonight. But in an interview earlier this year about the telephone data program, James Clapper, the director of national intelligence, said he cares “very deeply about our privacy and civil liberties.” He added: “I think a lot of what people are reading and seeing in the media is hyperbole.”

Still a secret

A slide from the U.S. Drug Enforcement Administration's Special Operations Division.
A slide from the U.S. Drug Enforcement Administration's Special Operations Division.
Reuters/John Shiffman

Advocates and attorneys are also concerned about who can access the information that the NSA collects.

In August, it was discovered that the the NSA has been turning over information to domestic law enforcement agencies. John Shiffman, one of the Reuters reporters who broke the story, said that the NSA sends information to a place called the Special Operations Division in Virginia. Then, Shiffman said, the division sends the evidence to multiple federal agencies, including the U.S. Drug Enforcement Agency, the FBI, the Internal Revenue Service and the Bureau of Alcohol, Tobacco, Firearms and Explosives. They use that information to track down and prosecute Americans in non-terrorism cases.

Much like the NSA, the Special Operations Division is cloaked in secrecy. According to one document obtained by Reuters, the division strictly forbids those who receive NSA information from revealing its true source. Shiffman laid out one possible scenario for America Tonight.

“The NSA will pass the information along to the DEA, who will pass the information along to local authorities,” Shiffman said. “And they will pull the person over on a pretext, say the person didn’t signal correctly to change lanes or a tail light is out. And lo and behold, they will find drugs in the trunk. The person who is arrested thinks the DEA just got lucky when, in fact, they got a whisper from the NSA or the CIA.”

Cohn said she is hearing about scenarios like that from defense attorneys who question the prosecution of their clients.

“I don’t think the invocation of national security means we throw out all the values of how to run a right society, how to have due process, how to have a constitutional democracy, and how to run a country,” Cohn said. “We don't have a national security exception to our Constitution in this country.”

When it comes to his Calguns Foundation, Hoffman is worried that he’s losing members over a fear of NSA surveillance and the possibility of overzealous or wrongful prosecution.

“If you’ve got a question about the AR-15 you owned in New York and whether or not it’s legal in California,” Hoffman said, “it’s a really frightening thing for a gun owner in California to know that there’s a record of him reaching out to the legal defense hotline of the Calguns Foundation to ask a question about whether he’s a felon or not.”

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