Wednesday, July 17, 2013

Freedom of Association and Digital Civil Society

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
So reads the First Amendment of the United States Constitution. The Amendment is part of the Bill of Rights, written by James Madison during the 1st U.S. Congress, as part of an effort to get the newly independent states to ratify this Constitution. All this happened between 1789 and 1791, but the ideas behind these rights have much deeper roots. Gordon Wood in The Idea of America traces them back at least to the ancient Romans and Greeks. The Amendment has a more proximal predecessor in the Virginia colonial Congress's Declaration of Rights, passed in 1776 during the American colonies were still at war with Britain.

I've been reading and re-reading as many historical interpretations of these ideas as I can. Why? Because the rights they protect are very much alive and under threat today. Civil society - much of which is organized through nonprofits - depends on people's right to peacefully associate with whomever they choose without fear of being watched or tracked by others. There is a fundamental need for individuals to know that their privacy is protected, in order for them to come together on behalf of a public purpose.

I'm heartened to see that many nonprofit organizations recognize this, and have joined together to protect the "right of people peaceably to assemble." The case I'm speaking of was filed yesterday in U.S. District Court by the Electronic Frontier Foundation on behalf of the following organizations:
  • First Unitarian Church of Los Angeles
  • Bill of Rights Defense Fund
  • CalGuns Foundation
  • California Association of Federal Firearms Licensees
  • Council on American Islamic Relations (National, California and Ohio chapters)
  • Free Press
  • Free Software Foundation
  • Greenpeace
  • Human Rights Watch
  • Media Alliance
  • National Organization for Reform of Marijuana Laws (California)
  • Open Technology Institute
  • People for the American Way
  • Public Knowledge
  • Students for Sensible Drug Policy
  • TechFreedom
  • Unitarian Universalist Service Committee
The case will be known as First Unitarian Church of Los Angeles vs the NSA, but take a good look at that list of plaintiffs. That list is revelatory - environmentalists and techies, drug law advocates and churches, coders, free press advocates and interfaith organizers. There may not be many other things that such groups would agree on. But they recognize that their ability to pursue their diverse (and probably conflicting) agendas and goals depends on their right to exist. Which depends on our right to associate.

Here is the text of the full complaint brought to the court. It argues that association in the digital age needs to be protected with the same guarantees that association in town halls or private homes has been protected. As our mechanisms for communicating and associating have changed with digital tools, so have the means of limiting our rights to do so. These questions are at the very heart of digital civil society, and their resolution will shape how we function as a democracy going forward.

The American Civil Liberties Union filed a related case, focused on the rights of individuals to keep their phone records safe from monitoring without search warrants. It builds on previous cases that have been denied by the Courts because the alleged spying by the NSA was secret and therefore the ACLU and its clients couldn't show standing to sue. The leaking of NSA documents revealed that the plaintiffs' phone records were monitored by the NSA and thus the ACLU's renewed pursuit.

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