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
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.”