By far the biggest news story of the past year was the revelation that the U.S. National Security Agency has been engaging in extensive surveillance of communications, including bulk collection of telephone records of citizens. This surveillance has prompted widespread concern among privacy-rights advocates—and multiple lawsuits. Among them is one spearheaded by the ACLU and one led by the Electronic Frontier Foundation. On behalf of PEN American Center, the national nonprofit association of writers, Davis Wright Tremaine has filed amicus briefs in both cases.
According to PEN, whose membership includes poets, playwrights, essayists, novelists, editors, screenwriters, journalists, literary agents, and translators, the revelations of pervasive surveillance are already harming freedom of expression and creative freedom in the U.S. In October, a PEN survey of over 500 U.S. writers found that 1 in 6 has avoided writing or speaking on a topic they thought would subject them to surveillance.
“PEN is profoundly concerned” wrote DWT attorneys in their brief for the ACLU case, “that the expectation of privacy that has allowed our culture to flourish and enabled us to govern ourselves will be eroded if we become accustomed to knowing that the government keeps records of all our communications and can compile detailed pictures of our private lives, our work, and our associations. In those circumstances, our communications will become cramped, the scope of thought will shrink, and our democracy will be debased.”
The surveillance is of particular concern to writers, our attorneys noted, saying, in the second brief: “The freedom to communicate with whomever one chooses, away from the prying eyes of the state, is an essential condition for creativity and critical writing, and especially for the expression of dissent.”
Twenty-two organizations are among the named plaintiffs in the Electronic Freedom Foundation case, First Unitarian Church of Los Angeles v. NSA. The plaintiffs currently have a motion for partial summary judgment pending in U.S. District Court in the Northern District of California. In December, a federal judge granted the government’s motion to dismiss the ACLU complaint, ACLU v. Clapper. That ruling is currently on appeal.
In a third lawsuit, a U.S. District Court judge ruled in December that the NSA’s surveillance program is likely unconstitutional, and he granted a preliminary injunction (which he stayed, while the order is appealed), barring the government from collecting phone data on the plaintiff. That case, Klayman et. al. v. Obama et. al., is being heard in the U.S. District Court for the District of Columbia. PEN is not involved.
DWT’s briefs for PEN were drafted by partners Ed Davis, Lance Koonce, and Linda Steinman, as well as associate Eric Feder, all in our New York office.
DWT has previously represented PEN in important constitutional challenges. In 2004, for instance, the firm filed a lawsuit that led the Treasury Department’s Office of Foreign Assets Control to revise regulations which effectively barred U.S. publishers from publishing books and journal articles originating in countries such as Iran, Cuba, and Sudan that were subject to U.S. trade embargoes.