Mirdamadi, Michael 4/1/2014 For Educational Use Only

Klayman v. Obama, 957 F.Supp.2d 1 (2013) 59 Communications Reg. (P&F) 825

957 F.Supp.2d 1 United States District Court, District of Columbia.
Klayman et al., Plaintiffs, v.
Obama et al., Defendants. Klayman et al., Plaintiff,
v. Obama et al., Defendants.
Civil Action No. 13–0851 (RJL) | Filed December 16, 2013
Synopsis Background: Subscribers to certain telecommunications and Internet services brought actions against federal government and private service providers and their executive officers, challenging the constitutionality and statutory authorization of certain of government's intelligence-gathering practices relating to wholesale collection of phone record metadata for United States citizens and analysis of that data through National Security Administration (NSA). Subscribers moved for preliminary injunction to bar government from continuing to engage in bulk collection and querying of phone record metadata, and to require government to destroy any such metadata in its possession.
Holdings: The District Court, Richard J. Leon, J., held that:
[1] court was barred from reviewing subscribers' claim that program exceeded government's statutory authority, in violation of Administrative Procedure Act (APA);
[2] subscribers had standing to raise Fourth Amendment challenge to collection and querying components of program;
[3] program constituted search under Fourth Amendment;
[4] subscribers were likely to succeed in showing that government's searches and NSA's analysis were unreasonable under Fourth Amendment;
[5] subscribers demonstrated irreparable harm and public interest to support injunctive relief; and

[6] order would be stayed pending appeal, in light of national security interests and novelty of constitutional issues.
Motions granted in part and denied in part, and order stayed pending appeal.
West Codenotes
Validity Called into Doubt 50 U.S.C.A. § 1861
Attorneys and Law Firms
Larry E. Klayman, Law Office of Larry Klayman, Washington, DC, for Plaintiffs/pro se.
James J. Gilligan, Rodney Patton, U.S. Department of Justice, Brian M. Boynton, Randolph D. Moss, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, DC, for Defendants.
Opinion
MEMORANDUM OPINION
[Dkt. # 13 (No. 13–0851), # 10 (No. 13–0881) ]
RICHARD J. LEON, United States District Judge
On June 6, 2013, plaintiffs brought the first of two related lawsuits challenging the constitutionality and statutory authorization of certain intelligence-gathering practices by the United States government relating to the wholesale collection of the phone record metadata of all U.S. citizens. 1 These related cases are two of several lawsuits 2 arising from public revelations over the past six months that the federal government, through the National Security Agency (“NSA”), and with the participation of certain telecommunications and internet companies, has conducted surveillance and intelligence-gathering programs that collect certain data about the telephone and internet activity of American citizens within the United States. Plaintiffs—five individuals in total between No. 13–851 (“Klayman I ”) and No. 13–881 (“Klayman II ”)— bring these suits as U.S. citizens who are subscribers or users of certain telecommunications and

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Klayman v. Obama, 957 F.Supp.2d 1 (2013)
59 Communications Reg. (P&F) 825 internet firms. See Second Am. Compl. (Klayman I ) [Dkt. # 37] ¶ 1; Am. Compl. (Klayman II ) [Dkt. # 30] ¶ l. 3 They bring suit against both federal government defendants (several federal agencies and individual executive officials) and private defendants (telecommunications and internet firms and their executive officers), alleging statutory and constitutional violations.See generally Second Am. Compl. (Klayman I ); Am. Compl. (Klayman II ).

1

Plaintiffs' second suit was filed less than a week later on

June 12, 2013, and challenged the constitutionality and

statutory authorization of the government's collection of

both phone and internet metadata records.

2

The complaint in ACLU v. Clapper, Civ. No. 13–3994,

which was filed in the United States District Court for

the Southern District of New York on June 11, 2013,

alleges claims similar to those in the instant two cases.

See also In re Electronic Privacy Information Center,

No. 13–58 (S.Ct.) (Petition for a Writ of Mandamus and

Prohibition, or a Writ of Certiorari filed July 8, 2013;

petition denied Nov. 18, 2013); Smith v. Obama, Civ. No.

2:13–00257 (D.Idaho) (complaint filed June 12, 2013);

First Unitarian Church of Los Angeles v. NSA, Civ. No.

13–3287 (N.D.Cal.) (complaint filed July 16, 2013).

3

Plaintiffs' complaints reflect their intention to bring

both suits as class actions on behalf of themselves

and “all other similarly situated consumers, users,

and U.S. citizens who are customers and users of,”

Second Am. Compl. (“Klayman I ”) ¶ 1, or “who

are subscribers, users, customers, and otherwise avail

themselves to,” Am. Compl. (“Klayman II ”) 11, the

telecommunications and internet companies named in

the complaints. Plaintiffs have not yet, however, moved

to certify a class in either case and in fact have moved for

extensions of time to file a motion for class certification

four times in each case. See Motion for Extension of

Time to Certify Class Action (Klayman I ) [Dkt. # # 7,

14, 27, 40]; (Klayman II ) [Dkt. # # 6, 11, 23, 33].

[1] Before the Court are plaintiffs' two Motions for Preliminary Injunction [Dkt. *8 # 13 (Klayman I ), # 10 (Klayman II ) ], one in each case. As relief, plaintiffs seek an injunction “that, during the pendency of this suit, (i) bars [d]efendants from collecting [p]laintiffs' call records under the mass call surveillance program; (ii) requires [d]efendants to destroy all of [p]laintiffs' call records already collected under the program; and (iii) prohibits [d]efendants from querying metadata obtained through the program

using any phone number or other identifier associated with [p]laintiffs ... and such other relief as may be found just and proper.” Pls.' Mot. for Prelim. Inj. (Klayman I ) [Dkt. # 13]; Pls.' Mot. for Prelim. Inj. (Klayman II ) [Dkt. # 10]; see also Pls.' Mem. P. & A. in Supp. of Mot. for Prelim. Inj. (Klayman I ) (“Pls.' Mem.”) [Dkt. # 13–1], at 30–31. 4 In light of how plaintiffs have crafted their requested relief, the Court construes the motions as requesting a preliminary injunction (1) only as against the federal government defendants, and (2) only with regard to the government's bulk collection and querying of phone record metadata. Further, between the two cases, plaintiffs have alleged with sufficient particularity that only two of the five named plaintiffs, Larry Klayman and Charles Strange, are telephone service subscribers. 5 Accordingly, for purposes of resolving these two motions, the Court's discussion of relevant facts, statutory background, and legal issues will be circumscribed to those defendants (hereinafter “the Government”), those two plaintiffs (hereinafter “plaintiffs”), and those claims. 6

4

Unless otherwise indicated, all citations to “Pls.' Mem.”

and other docket items hereinafter shall refer to the

filings made in Klayman I.

5

In Klayman I, plaintiffs Larry Klayman and Charles

Strange have submitted affidavits stating they are

subscribers of Verizon Wireless for cellular phone

service, see Aff. of Larry Klayman (“Klayman Aff.”)

[Dkt. # 13–2], at ¶ 3; Suppl. Aff. of Larry Klayman

(“Klayman Suppl. Aff.”) [Dkt. # 31–2], at ¶ 3; Aff. of

Charles Strange (“Strange Aff.”) [Dkt. # 13–3], at ¶ 2,

but neither the complaint nor the motion affirmatively

alleges that Mary Ann Strange is a subscriber of Verizon

Wireless or any other phone service, see Second Am.

Compl. ¶ 10 (describing plaintiff Mary Ann Strange).

And in Klayman II, where the complaint and motion

raise claims regarding the government's collection and

analysis of both phone and internet records, the plaintiffs

neither specifically allege, nor submit any affidavits

stating, that any of them individually is a subscriber of

either of the two named telephone company defendants,

AT & T and Sprint, for telephone services.See Aff.

of Larry Klayman (Klayman II ) [Dkt. # 10–2], at ¶

3 (“I am also a user of internet services by ... AT &

T....”); Suppl. Aff. of Larry Klayman (Klayman II )

[Dkt. # 26–2], at ¶ 3 (same); Aff. of Charles Strange

(Klayman II ) [Dkt. # 10–3], at ¶ 3 (“I am also a user

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59 Communications Reg. (P&F) 825 of internet services by ... AT & T....”); Am. Compl. ¶ 14 (“Plaintiff Garrison ... is a consumer and user of Facebook, Google, YouTube, and Microsoft products.”). Compare Am. Compl. (Klayman II ) ¶ 13 (“Plaintiff Ferrari ... is a subscriber, consumer, and user of Sprint, Google/Gmail, Yahoo!, and Apple. As a prominent private investigator, Ferrari regularly communicates, both telephonically and electronically ....” (emphasis added)), withPls.' Mem. (Klayman II ) [Dkt. # 10–1], at 18 (“Defendants have indisputably also provided the NSA with intrusive and warrantless access to the internet records of Plaintiffs Michael Ferrari and Matthew Garrison” (emphasis added)).

6

Klayman Iconcerns only the collection and analysis

of phone record data, and only with respect to

private defendant Verizon Communications. Klayman

II, by contrast, appears to concern the collection and

analysis of both phone and internet record data, and

includes both phone companies and internet companies

as private defendants. In the latter case, Plaintiffs'

Motion for Preliminary Injunction [Dkt. # 10] and

their Memorandum of Points and Authorities in Support

[Dkt. # 10–1] suffer from some confusion as a result

of its larger scope. On the face of the Motion itself

[Dkt. # 10] and their Proposed Order [Dkt. # 10–4],

plaintiffs request relief that is identical to that requested

in the motion in Klayman I—i.e., relief concerning

only the collection and querying of phone record data.

Throughout the memorandum in support [Dkt. # 10–

1], however, plaintiffs intermingle claims regarding

the surveillance of phone and internet data, and then

in conclusion request relief arguably concerning only

internet data. See Pls.' Mem. P. & A. Supp. Mot.

Prelim. Inj. (Klayman II ) [Dkt. # 10–1], at 4, 32

(requesting an injunction that, in part, “bar[s] Defendants

from collecting records pertaining to Plaintiffs' online

communications and internet activities”).

To the extent plaintiffs are, in fact, requesting

preliminary injunctive relief regarding any alleged

internet data surveillance activity, the Court need

not address those claims for two reasons. First, the

Government has represented that any bulk collection

of internet metadata pursuant to Section 215 (50

U.S.C. § 1861) was discontinued in 2011, see Govt.

Defs.' Opp'n to Pls.' Mot. for Prelim. Inj. (“Govt.'s

Opp'n”) [Dkt. # 25], at 15–16, 44–45; Ex. J to Decl.

of James J. Gilligan (“Gilligan Deck”) [Dkt. # 25–11]

(Letter from James R. Clapper to the Sen. Ron Wyden

(July 25, 2013)), and therefore there is no possible

ongoing harm that could be remedied by injunctive

relief. Second, to the extent plaintiffs challenge the Government's targeted collection of internet data content pursuant to Section 702 (50 U.S.C. § 1881a) under the so-called “PRISM” program, which targets non-U.S. persons located outside the U.S., plaintiffs have not alleged sufficient facts to show that the NSA has targeted any of their communications. See Govt.'s Opp'n at 21–22, 44. Accordingly, plaintiffs lack standing, as squarely dictated by the Supreme Court's recent decision in Clapper v. Amnesty International USA,––– U.S. ––––, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013), which concerns the same statutory provision. In Clapper, the Court held that respondents, whose work purportedly involved engaging in phone and internet contact with persons located abroad, lacked standing to challenge Section 702 because it was speculative whether the government would seek to target, target, and actually acquire their communications. See Clapper, 133 S.Ct. at 1148– 50 (“[R]espondents' speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to § 1881a.”). So too for plaintiffs here. (In fact, plaintiffs here have not even alleged that they communicate with anyone outside the United States at all, so their claims under Section 702 are even less colorable than those of the plaintiffs in Clapper.)
*9 For the reasons discussed below, the Court first finds that it lacks jurisdiction to hear plaintiffs' Administrative Procedure Act (“APA”) claim that the Government has exceeded its statutory authority under the Foreign Intelligence Surveillance Act (“FISA”). Next, the Court finds that it does, however, have the authority to evaluate plaintiffs' constitutional challenges to the NSA's conduct, notwithstanding the fact that it was done pursuant to orders issued by the Foreign Intelligence Surveillance Court (“FISC”). And after careful consideration of the parties' pleadings and supplemental pleadings, the representations made on the record at the November 18, 2013 hearing regarding these two motions, and the applicable law, the Court concludes that plaintiffs have standing to challenge the constitutionality of the Government's bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief. 7 Accordingly, the *10 Court will GRANT, in part, the Motion for Preliminary Injunction in Klayman I (with respect

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Klayman v. Obama, 957 F.Supp.2d 1 (2013)
59 Communications Reg. (P&F) 825 to Larry Klayman and Charles Strange only), and DENY the Motion for Preliminary Injunction in Klayman II. However, in view of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will STAY my order pending appeal.

7

Because I ultimately find that plaintiffs have made

a sufficient showing to merit injunctive relief on

their Fourth Amendment claim, I do not reach their

other constitutional claims under the First and Fifth

Amendments. See Seven–Sky v. Holder, 661 F.3d 1, 46

(D.C.Cir.2011) (noting “the bedrock principle of judicial

restraint that courts avoid prematurely or unnecessarily

deciding constitutional questions”), abrogated by Nat'l

Fed'n of Indep. Bus. v. Sebelius,–––U.S. ––––, 132 S.Ct.

2566, 183 L.Ed.2d 450 (2012); see also Wash. State

Grange v. Wash. State Republican Party, 552 U.S. 442,

450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (noting

“the fundamental principle of judicial restraint that courts

should neither anticipate a question of constitutional law

in advance of the necessity of deciding it nor formulate a

rule of constitutional law broader than is required by the

precise facts to which it is to be applied” (citations and

internal quotation marks omitted)).

BACKGROUND
On June 5, 2013, the British newspaper The Guardian reported the first of several “leaks” of classified material from Edward Snowden, a former NSA contract employee, which have revealed—and continue to reveal—multiple U.S. government intelligence collection and surveillance programs. See Glenn Greenwald, NSA collecting phone records of millions of Verizon customers daily, GUARDIAN (London), June 5, 2013. 8 That initial media report disclosed a FISC order dated April 25, 2013, compelling Verizon Business Network Services to produce to the NSA on “an ongoing daily basis ... all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” Secondary Order, In re Application of the [FBI] for an Order Requiring the Production of Tangible Things from Verizon Business Network Services, Inc. on Behalf of MCI Communication Services, Inc. d/b/a Verizon Business Services, No. BR 13– 80 at 2 (FISC Apr. 25, 2013) (attached as Ex. F to Gilligan Decl.) [Dkt. # 25–7] (“Apr. 25, 2013 Secondary Order”).

According to the news article, this order “show[ed] ... that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk—regardless of whether they are suspected of any wrongdoing.” Greenwald, supra. In response to this disclosure, the Government confirmed the authenticity of the April 25, 2013 FISC Order, and, in this litigation and in certain public statements, acknowledged the existence of a “program” under which “the FBI obtains orders from the FISC pursuant to Section 215 [of the USA PATRIOT Act] directing certain telecommunications service providers to produce to the NSA on a daily basis electronic copies of ‘call detail records.’ ” Govt.'s Opp'n at 8. 9 *11 Followon media reports revealed other Government surveillance programs, including the Government's collection of internet data pursuant to a program called “PRISM.” See Glenn Greenwald & Ewen MacAskill, NSA Prism program taps in to user data of Apple, Google and others, GUARDIAN (London), June 6, 2013. 10

8

Available at http://www.theguardian.com/world/2013/

jun/06/nsa-phone-records-verizon-court-order.

9

Although aspects of the program remain classified,

including which other telecommunications service

providers besides Verizon Business Network Services

are involved, the Government has declassified and

made available to the public certain facts about the

program. See Office of the Dir. of Nat'l Intelligence,

DNI Statement on Recent Unauthorized Disclosure

of Classified Information (June 6, 2013), available

at http:// www.dni.gov/index.php/newsroom/press-

releases/191–press–releases–2013/868–dni–statement–

on–recent–unauthorized–disclosures–of–classified–

information; Office of the Dir. of Nat'l

Intelligence, DNI Declassifies Intelligence Community

Documents Regarding Collection Under Section

702 of the Foreign Intelligence Surveillance

Act (FISA) (Aug. 21, 2013), available

at http://www.dni.gov/index.php/newsroom/press–

releases/191–press–releases–2013/915–dni–

declassifies–intelligence–community–documents–

regarding–collection–under–section–702–of–the–

foreign–intelligence–surveillance–act–fisa; Office of the

Dir. of Nat'l Intelligence, DNI Clapper Declassifies

Intelligence Community Documents Regarding

Collection Under Section 501 of the Foreign Intelligence

Surveillance Act (FISA) (Sept. 10, 2013), available

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Klayman v. Obama, 957 F.Supp.2d 1 (2013)
59 Communications Reg. (P&F) 825 at http://www.dni.gov/index.php/newsroom/press– releases/191–press–releases–2013/927–draft– document; Administration White Paper: Bulk Collection of Telephony Metadata under Section 215 of the USA PATRIOT Act (Aug. 9, 2013), available at http:// apps.washingtonpost.com/g/page/politics/obamaadministration-white-paper-on-nsa-surveillanceoversight/388/.
10 Available at http://www.theguardian.com/world/2013/ jun/06/us-tech-giants-nsa-data.
Soon after the first public revelations in the news media, plaintiffs filed their complaints in these two cases on June 6, 2013 (Klayman I ) and June 12, 2013 (Klayman II ), alleging that the Government, with the participation of private companies, is conducting “a secret and illegal government scheme to intercept and analyze vast quantities of domestic telephonic communications,” Second Am. Compl. ¶ 2 (Klayman I ), and “of communications from the Internet and electronic service providers,” Am. Compl. ¶ 2 (Klayman II ). Plaintiffs in Klayman I—attorney Larry Klayman, founder of Freedom Watch, a public interest organization, and Charles Strange, the father of Michael Strange, a cryptologist technician for the NSA and support personnel for Navy SEAL Team VI who was killed in Afghanistan when his helicopter was shot down in 2011—assert that they are subscribers of Verizon Wireless and bring suit against the NSA, the Department of Justice (“DOJ”), and several executive officials (President Barack H. Obama, Attorney General Eric H. Holder, Jr., General Keith B. Alexander, Director of the NSA, and U.S. District Judge Roger Vinson), as well as Verizon Communications and its chief executive officer. Second Am. Compl. ¶¶ 9–19; Klayman Aff. ¶ 3; Strange Aff. ¶ 2. And plaintiffs in Klayman II—Mr. Klayman and Mr. Strange again, along with two private investigators, Michael Ferrari and Matthew Garrison—bring suit against the same Government defendants, as well as Facebook, Yahoo!, Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT & T, and Apple, asserting that plaintiffs are “subscribers, users, customers, and otherwise avail themselves to” these named internet and/or telephone service provider companies. Am. Compl. ¶¶ 1, 11–14; Klayman Aff. ¶ 3; Klayman Suppl. Aff. ¶ 3; Strange Aff. ¶ 3. 11 Specifically, plaintiffs allege that the Government has violated their individual rights under the First, Fourth, and Fifth Amendments of the Constitution and has violated the Administrative Procedure Act (“APA”) by

exceeding its statutory authority under FISA. 12 Second Am. Compl. ¶¶ 1–8, 49–99.
11 See supra, notes 5, 6.
12 Plaintiffs also allege certain statutory violations by the private company defendants, Second Am. Compl. ¶¶ 81– 95, which are not at issue for purposes of the Preliminary Injunction Motions, as well as common law privacy tort claims, Second Am. Compl. ¶¶ 70–80.
I. Statutory Background
A. FISA and Section 215 of the USA PATRIOT Act (50 U.S.C. § 1861) In 1978, Congress enacted the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801 et seq. (“FISA”), “to authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes.” Clapper v. Amnesty Int'l USA, ––– U.S. ––––, 133 S.Ct. 1138, 1143, 185 L.Ed.2d 264 (2013). Against the backdrop of findings by the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities (the “Church Committee”) that the executive branch had, for decades, engaged in warrantless domestic intelligence-gathering activities that had illegally infringed the Fourth Amendment rights of American citizens, Congress passed FISA *12 “in large measure [as] a response to the revelations that warrantless electronic surveillance in the name of national security has been seriously abused.” S.Rep. No. 95–604, at 7. In the view of the Senate Judiciary Committee, the act went “a long way in striking a fair and just balance between protection of national security and protection of personal liberties.” Id. at 7.
FISA created a procedure for the Government to obtain ex parte judicial orders authorizing domestic electronic surveillance upon a showing that, inter alia, the target of the surveillance was a foreign power or an agent of a foreign power. 50 U.S.C. §§ 1804(a)(3), 1805(a)(2). In enacting FISA, Congress also created two new Article III courts—the Foreign Intelligence Surveillance Court (“FISC”), composed of eleven U.S. district judges, “which shall have jurisdiction to hear applications for and grant orders approving” such surveillance, § 1803(a)(1), and the FISC Court of Review, composed of three U.S. district or court of appeals judges,

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59 Communications Reg. (P&F) 825 “which shall have jurisdiction to review the denial of any application made under [FISA],” § 1803(b). 13
13 The eleven U.S. district judges are appointed by the Chief Justice of the United States to serve on the FISC for a term of seven years each. 50 U.S.C. § 1803(a) (1), (d). They are drawn from at least seven of the twelve judicial circuits in the United States, and at least three of the judges must reside within twenty miles of the District of Columbia. § 1803(a)(1). For these eleven district judges who comprise the FISC at any one time, their service on the FISC is in addition to, not in lieu of, their normal judicial duties in the districts in which they have been appointed. See Theodore W. Ruger, Chief Justice Rehquist's Appointments to the FISA Court: An Empirical Perspective, 101 NW. U.L. REV. 239, 244 (2007) (“Service on the FISA Court is a part-time position. The judges rotate through the court periodically and maintain regular district court caseloads in their home courts.”). Accordingly, service on the FISC is, at best, a part-time assignment that occupies a relatively small part of each judge's annual judicial duties. Further, as a result of the requirement that at least three judges reside within twenty miles of the nation's capital, a disproportionate number of the FISC judges are drawn from the district courts of the District of Columbia and the Eastern District of Virginia, seeid. at 258 (Appendix) (listing Chief Justice Rehnquist's twenty-five appointments to the FISC, six of which came from the D.D.C. and E.D. Va.).
In addition to authorizing wiretaps, §§ 1801–1812, FISA was subsequently amended to add provisions enabling the Government to obtain ex parte orders authorizing physical searches, §§ 1821–1829, as well as pen registers and trap-andtrace devices, §§ 1841–1846. See Intelligence Authorization Act for Fiscal Year 1995, Pub. L. No. 103–359, § 807(a) (3), 108 Stat. 3423; Intelligence Authorization Act for Fiscal Year 1999, Pub. L. No. 105–272, § 601(2), 112 Stat. 2396 (“1999 Act”). In 1998, Congress added a “business records” provision to FISA. See 1999 Act § 602. Under that provision, the FBI was permitted to apply for an ex parte order authorizing specified entities, such as common carriers, to release to the FBI copies of business records upon a showing in the FBI's application that “there are specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.” 50 U.S.C. § 1862(b)(2)(B) (2000).

Following the September 11, 2001 terrorist attacks, Congress passed the USA PATRIOT Act, which made changes to FISA and several other laws. Pub. L. No. 107–56, 115 Stat. 272 (2001). Section 215 of the PATRIOT Act replaced FISA's business-records provision with a more expansive “tangible things” provision. Codified at 50 U.S.C. § 1861, it authorizes the FBI to apply “for an order requiring the production of any tangible things (including *13 books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” § 1861(a)(1). While this provision originally required that the FBI's application “shall specify that the records concerned are sought for” such an investigation, § 1861(b)(2) (Supp. I 2001), Congress amended the statute in 2006 to provide that the FBI's application must include “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation ... to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” § 1861(b)(2)(A); see USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109–177, § 106(b), 120 Stat. 192 (“USA PATRIOT Improvement and Reauthorization Act”).
Section 1861 also imposes other requirements on the FBI when seeking to use this authority. For example, the investigation pursuant to which the request is made must be authorized and conducted under guidelines approved by the Attorney General under Executive Order No. 12,333 (or a successor thereto). 50 U.S.C. § 1861(a)(2)(A), (b) (2)(A). And the FBI's application must “enumerat[e] ... minimization procedures adopted by the Attorney General ... that are applicable to the retention and dissemination by the [FBI] of any tangible things to be made available to the [FBI] based on the order requested.” § 1861(b)(2)(B). The statute defines “minimization procedures” as, in relevant part, “specific procedures that are reasonably designed in light of the purpose and technique of an order for the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting [U.S.] persons consistent with the need of the [U.S.] to obtain, produce, and disseminate foreign intelligence information.” § 1861(g)(2). If the FISC judge finds that the FBI's application meets these requirements, he “shall enter an ex parte order as requested, or as modified,

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Klayman v. Obama, 957 F.Supp.2d 1 (2013) 59 Communications Reg. (P&F) 825 approving the release of tangible things” (hereinafter, “production order”). § 1861(c)(1); see also§ 1861(f)(1)(A) (“the term ‘production order’ means an order to produce any tangible thing under this section”).
Under Section 1861's “use” provision, information that the FBI acquires through such a production order “concerning any [U.S.] person may be used and disclosed by Federal officers and employees without the consent of the [U.S.] person only in accordance with the minimization procedures adopted” by the Attorney General and approved by the FISC. § 1861(h). Meanwhile, recipients of Section 1861 production orders are obligated not to disclose the existence of the orders, with limited exceptions. § 1861(d)(1).
B. Judicial Review by the FISC While the recipient of a production order must keep it secret, Section 1861 does provide the recipient—but only the recipient—a right of judicial review of the order before the FISC pursuant to specific procedures. Prior to 2006, recipients of Section 1861 production orders had no express right to judicial review of those orders, but Congress added such a provision when it reauthorized the PATRIOT Act that year. See USA PATRIOT Improvement and Reauthorization Act § 106(f); 1 D. KRIS & J. WILSON, NATIONAL SECURITY INVESTIGATIONS & PROSECUTIONS § 19:7 (2d ed. 2012) (“Kris & Wilson”) (“Prior to the Reauthorization Act in 2006, FISA did not allow for twoparty litigation before the FISC”).
*14 Under Section 1861, “[a] person receiving a production order may challenge the legality of that order by filing a petition with the [petition review pool of FISC judges].” 50 U.S.C. § 1861(f)(2)(A)(i); see§ 1803(e)(1). 14 The FISC review pool judge considering the petition may grant the petition “only if the judge finds that [the] order does not meet the requirements of [Section 1861] or is otherwise unlawful.” § 1861(f)(2)(B). Once the FISC review pool judge rules on the petition, either the Government or the recipient of the production order may seek an en banc hearing before the full FISC, § 1803(a)(2)(A), or may appeal the decision by filing a petition for review with the FISC Court of Review, § 1861(f)(3). Finally, after the FISC Court of Review renders a written decision, either the Government or the recipient of the production order may then appeal this decision to the Supreme Court on petition for writ of certiorari. §§ 1861(f)

(3), 1803(b). A production order “not explicitly modified or set aside consistent with [Section 1861(f) ] shall remain in full effect.” § 1861(f)(2)(D).
14 The three judges who reside within twenty miles of the District of Columbia comprise the petition review pool (unless all three are unavailable, in which case other FISC judges may be designated). § 1803(e)(1). In addition to reviewing petitions to review Section 1861 production orders pursuant to § 1861(f), the review pool also has jurisdiction to review petitions filed pursuant to § 1881a(h)(4). Id.
Consistent with other confidentiality provisions of FISA, Section 1861 provides that “[a]ll petitions under this subsection shall be filed under seal,” § 1861(f)(5), and the “record of proceedings ... shall be maintained under security measures established by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence,” § 1861(f)(4). See also§ 1803(c).
II. Collection of Bulk Telephony Metadata Pursuant to Section 1861 To say the least, plaintiffs and the Government have portrayed the scope of the Government's surveillance activities very differently. 15 For purposes of resolving these preliminary injunction motions, however, as will be made clear in the discussion below, it will suffice to accept the Government's description of the phone metadata collection and querying program. Cf.Cobell v. Norton, 391 F.3d 251, 261 (D.C.Cir.2004) (evidentiary hearing on preliminary injunction is necessary only if the court must make credibility determinations to resolve key factual disputes in favor of the moving party ).
15 In addition to alleging that the NSA has “direct access” to Verizon's databases, Second Am. Compl. ¶ 7, and is collecting location information as part of “call detail records,” Pls. Mem. at 10, Mr. Klayman and Mr. Strange also suggest that they are “prime target[s]” of the Government due to their public advocacy and claim that the Government is behind alleged inexplicable text messages being sent from and received on their phones, Pls.' Mem. at 13–16; Klayman Aff. ¶ 11; Strange Aff. ¶¶ 12–17.
In broad overview, the Government has developed a “counterterrorism program” under Section 1861 in which

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59 Communications Reg. (P&F) 825 it collect, compiles, retains, and analyzes certain telephone records, which it characterizes as “business records” created by certain telecommunications companies (the “Bulk Telephony Metadata Program”). The records collected under this program consist of “metadata,” such as information about what phone numbers were used to make and receive calls, when the calls took place, and how long the calls lasted. Decl. of Acting Assistant Director Robert J. Holley, Federal Bureau of Investigation (“Holley Decl.”) [Dkt. # 25– 5], at ¶ 5; Decl. of Teresa H. Shea, Signals Intelligence Director, National Security Agency (“Shea Decl.”) [Dkt. # 25–4], at ¶ 7; Primary Order, *15 In re Application of the [FBI] for an Order Requiring the Production of Tangible Things From [Redacted], No. BR 13–158 at 3 n.1 (FISC Oct. 11, 2013) (attached as Ex. B to Gilligan Decl.) [Dkt. # 25–3] (“Oct. 11, 2013 Primary Order”). 16 According to the representations made by the Government, the metadata records collected under the program do not include any information about the content of those calls, or the names, addresses, or financial information of any party to the calls. Holley Decl. ¶¶ 5, 7; Shea Decl. ¶ 15; Oct. 11, 2013 Primary Order at 3 n.1. 17 Through targeted computerized searches of those metadata records, the NSA tries to discern connections between terrorist organizations and previously unknown terrorist operatives located in the United States. Holley Decl. ¶ 5; Shea Decl. ¶¶ 8–10, 44.
16 Oct. 11, 2013 Primary Order at 3 n.1 (“For purposes of this Order ‘telephony metadata’ includes comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call”).
17 Plaintiffs have alleged that the Government has also collected location information* for cell phones. Second Am. Comp. ¶ 28; Pls.' Mem. at 10–11. While more recent FISC opinions expressly state that cell-site location information is not covered by Section 1861 production orders, see, e.g., Oct. 11, 2013 Primary Order at 3 n.1, the Government has not affirmatively represented to this Court that the NSA has not, at any point in the history of the Bulk Telephony Metadata Program, collected location information (in one technical format or another) about cell phones.

See, e.g., Govt.'s Opp'n at 9 (defining telephony metadata and noting what is not included); Order, In re Application of the [FBI] for an Order Requiring the Production of Tangible Things from [Redacted], No. BR 06–05 at 2 (FISC May 24, 2006), available at http:// www.dni.gov/index.php/newsroom/press– releases/191–press–releases–2013/927–draft–document (defining telephony metadata and noting what is not included, but not expressly stating that the order does not authorize the production of cell-site location information).
The Government has conducted the Bulk Telephony Metadata Program for more than seven years. Beginning in May 2006 and continuing through the present, 18 the FBI has obtained production orders from the FISC under Section 1861 directing certain telecommunications companies to produce, on an ongoing daily basis, these telephony metadata records, Holley Decl. 16; Shea Decl. ¶ 13, which the companies create and maintain as part of their business of providing telecommunications services to customers, Holley Decl. ¶ 10; Shea Decl. ¶ 18. The NSA then consolidates the metadata records provided by different telecommunications companies into one database, Shea Decl. ¶ 23, and under the FISC's orders, the NSA may retain the records for up to five years, id. ¶ 30; see Oct. 11, 2013 Primary Order at 14. According to Government officials, this aggregation of records into a single database creates “an historical repository that permits retrospective analysis,” Govt.'s Opp'n at 12, enabling NSA analysts to draw connections, across telecommunications service providers, between numbers reasonably suspected to be associated with terrorist activity and with other, unknown numbers. Holley Decl. ¶¶ 5, 8; Shea Decl. ¶¶ 46, 60.
18 The most recent FISC order authorizing the Bulk Telephony Metadata Program that the Government has disclosed (in redacted form, directed to an unknown recipient) expires on January 3, 2014. See Oct. 11, 2013 Primary Order at 17.
The FISC orders governing the Bulk Telephony Metadata Program specifically provide that the metadata records may be *16 accessed only for counterterrorism purposes (and technical database maintenance). Holley Decl. ¶ 8; Shea Decl. ¶ 30. Specifically, NSA intelligence analysts, without seeking the approval of a judicial officer, may access the records to obtain foreign intelligence information only through “queries” of the records performed using “identifiers,” such

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Klayman v. Obama, 957 F.Supp.2d 1 (2013) 59 Communications Reg. (P&F) 825 as telephone numbers, associated with terrorist activity. 19 An “identifier” (i.e., selection term, or search term) used to start a query of the database is called a “seed,” and “seeds” must be approved by one of twenty-two designated officials in the NSA's Homeland Security Analysis Center or other parts of the NSA's Signals Intelligence Directorate. Shea Decl. ¶¶ 19, 31. Such approval may be given only upon a determination by one of those designated officials that there exist facts giving rise to a “reasonable, articulable suspicion” (“RAS”) that the selection term to be queried is associated with one or more of the specified foreign terrorist organizations approved for targeting by the FISC. Holley Decl. ¶¶ 15–16. 20 In 2012, for example, fewer than 300 unique identifiers met this RAS standard and were used as “seeds” to query the metadata, but “the number of unique identifiers has varied over the years.” Shea Decl. ¶ 24.
19 In her declaration, Teresa H. Shea, Director of the Signals Intelligence Directorate at the NSA, states that “queries,” or “term searches,” of the metadata database are conducted “using metadata ‘identifiers,’ e.g., telephone numbers, that are associated with a foreign terrorist organization.” Shea Decl. ¶ 19 (emphasis added). If a telephone number is only an example of an identifier that may be used as a search term, it is not clear what other “identifiers” may be used to query the database, and the Government has not elaborated. See, e.g., Oct. 11, 2013 Primary Order at 5 n.4, 7–10 (redacting text that appears to discuss “selection terms”).
20 A determination that a selection term meets the RAS standard remains effective for 180 days for any selection term reasonably believed to be used by a U.S. person, and for one year for all other selection terms. See Oct. 11, 2013 Primary Order at 10.
When an NSA intelligence analyst runs a query using a “seed,” the minimization procedures provide that query results are limited to records of communications within three “hops” from the seed.Id. ¶ 22. The query results thus will include only identifiers and their associated metadata having a direct contact with the seed (the first “hop”), identifiers and associated metadata having a direct contact with first “hop” identifiers (the second “hop”), and identifiers and associated metadata having a direct contact with second “hop” identifiers (the third “hop”). Id. ¶ 22; Govt.'s Opp'n at 11. In plain English, this means that if a search starts with telephone

number (123) 456–7890 as the “seed,” the first hop will include all the phone numbers that (123) 456–7890 has called or received calls from in the last five years (say, 100 numbers), the second hop will include all the phone numbers that each of those 100 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 100 “first hop” numbers, or 10,000 total), and the third hop will include all the phone numbers that each of those 10,000 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 10,000 “second hop” numbers, or 1,000,000 total). See Shea Decl. ¶ 25 n.1. The actual number of telephone numbers and their associated metadata captured in any given query varies, of course, but in the absence of any specific representations from the Government about typical query results, it is likely that the quantity of phone numbers captured in any given query would be very large. 21
21 After stating that fewer than 300 unique identifiers met the RAS standard and were used as “seeds” to query the metadata in 2012, Ms. Shea notes that “[b]ecause the same seed identifier can be queried more than once over time, can generate multiple responsive records, and can be used to obtain contact numbers up to three ‘hops' from the seed identifier, the number of metadata records responsive to such queries is substantially larger than 300, but is still a very small percentage of the total volume of metadata records.” Shea Decl. ¶ 24 (emphasis added). The first part of this assertion is a glaring understatement, while the second part is virtually meaningless when placed in context. First, as the sample numbers I have used in the text above demonstrate, it is possible to arrive at a query result in the millions within three hops while using even conservative numbers —needless to say, this is “substantially larger than 300.” After all, even if the average person in the United States does not call or receive calls from 100 unique phone numbers in one year, what about over a five-year period? And second, it belabors the obvious to note that even a few million phone numbers is “a very small percentage of the total volume of metadata records” if the Government has collected metadata records on hundreds of millions of phone numbers. But it's also easy to imagine the spiderweb-like reach of the three-hop search growing exponentially and capturing even higher numbers of phone numbers. Suppose, for instance, that there is a person living in New York City who has a phone number that meets

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59 Communications Reg. (P&F) 825 the RAS standard and is approved as a “seed.” And suppose this person, who may or may not actually be associated with any terrorist organization, calls or receives calls from 100 unique numbers, as in my example. But now suppose that one of the numbers he calls is his neighborhood Domino's Pizza shop. The Court won't hazard a guess as to how many different phone numbers might dial a given Domino's Pizza outlet in New York City in a five-year period, but to take a page from the Government's book of understatement, it's “substantially larger” than the 100 in the second hop of my example, and would therefore most likely result in exponential growth in the scope of the query and lead to millions of records being captured by the third hop. (I recognize that some minimization procedures described in recent FISC orders permitting technical personnel to access the metadata database to “defeat [ ] high volume and other unwanted [ ] metadata,” Oct. 11, 2013 Primary Order at 6, may, in practice, reduce the likelihood of my Domino's hypothetical example occurring. But, of course, that does not change the baseline fact that, by the terms of the FISC's orders, the NSA is permitted to run queries capturing up to three hops that can conceivably capture millions of Americans' phone records. Further, these queries using non-RASapproved selection terms, which are permitted to make the database “usable for intelligence analysis,” id. at 5, may very well themselves involve searching across millions of records.)
*17 Once a query is conducted and it returns a universe of responsive records (i.e., a universe limited to records of communications within three hops from the seed), trained NSA analysts may then perform new searches and otherwise perform intelligence analysis within that universe of data without using RAS-approved search terms. See Shea Decl. ¶ 26 (NSA analysts may “chain contacts within the query results themselves”); Oct. 11, 2013 Primary Order. 22 According to the Government, following the “chains of communication”—which, for chains that cross different communications networks, is only possible if the metadata is aggregated—allows the analyst to discover information that may not be readily ascertainable through other, targeted intelligence-gathering techniques. Shea Decl. ¶ 46. For example, the query might reveal that a seed telephone number *18 has been in contact with a previously unknown U.S. telephone number—i.e., on the first hop. See id. ¶ 58. And from there, “contact-chaining” out to the second and third

hops to examine the contacts made by that telephone number may reveal a contact with other telephone numbers already known to the Government to be associated with a foreign terrorist organization. Id. ¶¶ 47, 62. In short, the Bulk Telephony Metadata Program is meant to detect: (1) domestic U.S. phone numbers calling outside of the U.S. to foreign phone numbers associated with terrorist groups; (2) foreign phone numbers associated with terrorist groups calling into the U.S. to U.S. phone numbers; and (3) “possible terroristrelated communications” between U.S. phone numbers inside the U.S. See id. ¶ 44.
22 Under the terms of the most recent FISC production order available, “[q]ueries of the BR metadata using RAS-approved selection terms may occur either by manual analyst query or through the automated query process described below. This automated query process queries the collected BR metadata (in a ‘collection store’) with RAS-approved selection terms and returns the hop-limited results from those queries to a ‘corporate store.’ The corporate store may then be searched by appropriately and adequately trained personnel for valid foreign intelligence purposes, without the requirement that those searches use only RAS-approved selection terms.” Oct. 11, 2013 Primary Order at 11 (footnote omitted). This “automated query process” was first approved by the FISC in a November 8, 2012 order. Id. at 11 n.11.
Since the program began in May 2006, the FISC has repeatedly approved applications under Section 1861 and issued orders directing telecommunications service providers to produce records in connection with the Bulk Telephony Metadata Program. Shea Decl. ¶¶ 13–14. Through October 2013, fifteen different FISC judges have issued thirty-five orders authorizing the program. Govt.'s Opp'n at 9; see also Shea Decl. ¶¶ 13–14; Holley Decl. ¶ 6. Under those orders, the Government must periodically seek renewal of the authority to collect telephony records (typically every ninety days). Shea Decl. ¶ 14. The Government has nonetheless acknowledged, as it must, that failures to comply with the minimization procedures set forth in the orders have occurred. For instance, in January 2009, the Government reported to the FISC that the NSA had improperly used an “alert list” of identifiers to search the bulk telephony metadata, which was composed of identifiers that had not been approved under the RAS standard. Id. ¶ 37; Order, In re Production of Tangible Things from [Redacted], No. BR 08–13, 2009 WL 9150913,

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59 Communications Reg. (P&F) 825 at *2 (FISC Mar. 2, 2009) (“Mar. 2, 2009 Order”). After reviewing the Government's reports on its noncompliance, Judge Reggie Walton of the FISC concluded that the NSA had engaged in “systematic noncompliance” with FISCordered minimization procedures over the preceding three years, since the inception of the Bulk Telephony Metadata Program, and had also repeatedly made misrepresentations and inaccurate statements about the program to the FISC judges. Mar. 2, 2009 Order, 2009 WL 9150913, at *2–5. 23 As a consequence, Judge Walton concluded that he had no confidence that the Government was doing its utmost to comply with the court's orders, and ordered the NSA to seek FISC approval on a case-by-case basis before conducting any further queries of the bulk telephony metadata collected pursuant to *19 Section 1861 orders. Id. at *9; Shea Decl. ¶¶ 38–39. This approval procedure remained in place from March 2009 to September 2009. Shea Decl. ¶¶ 38–39.
23 Judge Walton noted that, “since the earliest days of the FISC-authorized collection of call-detail records by the NSA, the NSA has on a daily basis, accessed the BR metadata for purposes of comparing thousands of non-RAS-approved telephone identifiers on its alert list against the BR metadata in order to identify any matches. Such access was prohibited by the governing minimization procedures under each of the relevant Court orders.” Mar. 2, 2009 Order, 2009 WL 9150913, at *2. He went on to conclude: “In summary, since January 15, 2009, it has finally come to light that the FISC's authorizations of this vast collection program have been premised on a flawed depiction of how the NSA uses BR metadata. This misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government's submissions, and despite a government-devised and Court-mandated oversight regime. The minimization procedures proposed by the government in each successive application and approved and adopted as binding by the orders of the FISC have been so frequently and systemically violated that it can fairly be said that this critical element of the overall BR regime has never functioned effectively.” Id. at *5.
Notwithstanding this six-month “sanction” imposed by Judge Walton, the Government apparently has had further compliance problems relating to its collection programs in subsequent years. In October 2011, the Presiding Judge of the FISC, Judge John Bates, found that the Government

had misrepresented the scope of its targeting of certain internet communications pursuant to 50 U.S.C. § 1881a (i.e., a different collection program than the Bulk Telephony Metadata Program at issue here). Referencing the 2009 compliance issue regarding the NSA's use of unauthorized identifiers to query the metadata in the Bulk Telephony Metadata Program, Judge Bates wrote: “the Court is troubled that the government's revelations regarding NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.” Mem. Op., [Redacted], No. [redacted], at 16 n.14 (FISC Oct. 3, 2011). 24 Both Judge Walton's and Judge Bates's opinions were only recently declassified by the Government in response to the Congressional and public reaction to the Snowden leaks. 25
24 Available at http://www.dni.gov/index.php/newsroom/ press–releases/191–press–releases–2013/915–dni– declassifies–intelligence–community–documents– regarding–collection–under–section–702–of–the– foreign–intelligence–surveillance–act–fisa. Whatever the second “substantial misrepresentation” was, the Government appears to have redacted it from the footnote in that opinion.
25 See Office of the Dir. of Nat'l Intelligence, DNI Declassifies Intelligence Community Documents Regarding Collection Under Section 702 of the Foreign Intelligence Surveillance Act (FISA) (Aug. 21, 2013), available at http://www.dni.gov/index.php/newsroom/press– releases/191–press–releases–2013/915–dni– declassifies–intelligence–community–documents– regarding–collection–under–section–702–of–the– foreign–intelligence–surveillance–act–fisa; Office of the Dir. of Nat'l Intelligence, DNI Clapper Declassifies Intelligence Community Documents Regarding Collection Under Section 501 of the Foreign Intelligence Surveillance Act (FISA) (Sept. 10, 2013), available at http://www.dni.gov/index.php/newsroom/press– releases/191–press–releases–2013/927–draft– document.
ANALYSIS

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Klayman v. Obama, 957 F.Supp.2d 1 (2013) 59 Communications Reg. (P&F) 825 I will address plaintiffs' statutory claim under the APA before I turn to their constitutional claim under the Fourth Amendment.
I. Statutory Claim Under the APA [2] Invoking this Court's federal question jurisdiction under 28 U.S.C. § 1331, plaintiffs allege that the Government's phone metadata collection and querying program exceeds the statutory authority granted by FISA's “tangible things” provision, 50 U.S.C. § 1861, and thereby violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. See Second Am. Compl. ¶¶ 96–99; Pls.' Mem. at 2, 17–19; Pls.' Reply in Supp. of Mots. for Prelim. Inj. (“Pls.' Reply”) [Dkt. # 31], at 5–11. In particular, plaintiffs argue that the bulk records obtained under the Bulk Telephony Metadata Program are not “relevant” to authorized national security investigations, see50 U.S.C. § 1861(b)(2)(A), and that the FISC may not prospectively order telecommunications service providers to produce records that do not yet exist. See Pls.' Mem. at 17–19; Pls.' Reply at 5–11. In response, the Government argues that this Court lacks subject matter jurisdiction over this statutory claim because Congress impliedly precluded APA review of such claims. Government Defs.' Supplemental Br. in Opposition to Pls.' Mots. Prelim. Inj. *20 (“Govt.'s Suppl. Br.”) [Dkt. # 43], at 2. For the following reasons, I agree with the Government that I am precluded from reviewing plaintiffs' APA claim.

104 S.Ct. 2450, 81 L.Ed.2d 270 (1984), and it may be overcome “whenever the congressional intent to preclude judicial review is ‘fairly discernible in the statutory scheme.” ’ Id. at 351, 104 S.Ct. 2450. Assessing “[w]hether a statute precludes judicial review of agency action ... is a question of congressional intent, which is determined from the statute's ‘express language,’ as well as ‘from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.’ ” Koretoff, 614 F.3d at 536 (quoting Block, 467 U.S. at 345, 104 S.Ct. 2450); see also Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994).
The Government insists that two statutes—50 U.S.C. § 1861, the “tangible things” provision of FISA itself, and 18 U.S.C. § 2712, a provision of the USA PATRIOT Act, codified in the Stored Communications Act—impliedly preclude this Court's review of plaintiffs' statutory APA claim. Govt.'s Opp'n at 26– 31; Govt.'s Suppl. Br. at 1–4. The text of Section 1861, and the structure and purpose of the FISA statutory scheme, as a whole, do indeed reflect Congress's preclusive intent. Stated simply, Congress created a closed system of judicial review of the government's domestic foreign intelligence-gathering, generally, 50 U.S.C. § 1803, and of Section 1861 production orders, specifically, § 1861(f). This closed system includes no role for third parties, such as plaintiffs here, nor courts besides the FISC, such as this District Court. Congress's preclusive intent is therefore sufficiently clear. How so?

[3] [4] The APA “establishes a cause of action for those [5] First, and most directly, the text of the applicable ‘suffering legal wrong because of agency action, or adversely provision of FISA itself, Section 1861, evinces Congress's affected or aggrieved by agency action.’ ” Koretoff v. Vilsack, intent to preclude APA claims like those brought by plaintiffs 614 F.3d 532, 536 (D.C.Cir.2010) (quoting 5 U.S.C. § 702). before this Court. Section 1861 expressly provides a right In particular, the APA permits such aggrieved persons to of judicial review of orders to produce records, but it only bring suit against the United States and its officers for extends that right to the recipients of such orders, such “relief other than money damages,” 5 U.S.C. § 702, such as telecommunications service providers. See50 U.S.C. § as the injunctive relief plaintiffs seek here. This general 1861(f). Congress thus did not preclude all judicial review waiver of sovereign immunity does not apply, however, “if of Section 1861 production orders, but I, of course, must any other statute that grants consent to suit expressly or determine “whether Congress nevertheless foreclosed review impliedly forbids the relief which is sought.” Id. Similarly to the class to which the [plaintiffs] belon[g].” Block, 467 the APA's “basic presumption of judicial review [of agency U.S. at 345–46, 104 S.Ct. 2450. And “when a statute action],” Abbott Labs v. Gardner, 387 U.S. 136, 140, 87 provides a detailed mechanism for judicial consideration S.Ct. 1507, 18 L.Ed.2d 681 (1967), does not apply “to the of particular issues at the behest of particular persons, extent that ... statutes preclude judicial review,” 5 U.S.C. § judicial review of those issues at the behest of other persons 701(a)(1). Accordingly, “[t]he presumption favoring judicial may be found to be impliedly precluded.” Id. at 349, 104 review of administrative action is just that—a presumption,” S.Ct. 2450 (emphases added); see also id. at 345–48, 104 Block v. Community Nutrition Inst., 467 U.S. 340, 349, S.Ct. 2450 (holding *21 that the statutory scheme of the

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59 Communications Reg. (P&F) 825 Agricultural Marketing Agreement Act (“AMAA”), which expressly provided a mechanism for milk handlers to obtain judicial review of milk market orders issued by the Secretary of Agriculture, impliedly precluded review of those orders in suits brought by milk consumers ). That is exactly the case here. Congress has established a detailed scheme of judicial review of the particular issue of the “legality” of Section 1861 production orders at the behest of only recipients of those orders. 50 U.S.C. §§ 1861(f)(2)(A)(i) (“A person receiving a production order may challenge the legality of that order by filing a petition with the [petition review pool of FISC judges].” (emphasis added)), 1861(f)(2)(B) (“A judge considering a petition to modify or set aside a production order may grant such petition only if the judge finds that such order does not meet the requirements of this section or is otherwise unlawful. ” (emphasis added)). And that scheme of judicial review places such challenges before the FISC: Section 1861 permits such challenges to be heard only by the petition review pool of the FISC. See§ 1861(f)(2) (A)(i); § 1803(e)(1) (the FISC petition review pool “shall have jurisdiction to review petitions filed pursuant to section 1861(f)(1)... of this title”).
[6] Second, the purpose and legislative history of Section 1861 also support the conclusion that Congress intended to preclude APA claims by third parties. Simply put, Congress did not envision that third parties, such as plaintiffs, would even know about the existence of Section 1861 orders, much less challenge their legality under the statute. See, e.g.,H.R.Rep. No. 109–174 at 128, 268 (2005). As the Government points out, “Section [1861], like other provisions of FISA, establishes a secret and expeditious process that involves only the Government and the recipient of the order” in order to “promote its effective functioning as a tool for counter-terrorism.” Govt.'s Opp'n at 29; see also50 U.S.C. § 1861(d)(1) (recipient of production order may not “disclose to any other person that the [FBI] has sought or obtained” an order under Section 1861); § 1861(f)(5) (“All petitions under this subsection shall be filed under seal.”); § 1861(f) (4) (“The record of proceedings, including petitions filed, orders granted, and statements of reasons for decision, shall be maintained under security measures established by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence.”). Congress did think about third parties, such as persons whose records would be targeted, when it created a right to judicial review of Section 1861 production orders for recipients, but it

recognized that extending a similar right to third parties would make little sense in light of the secrecy of such orders.See H.R.Rep. No. 109–174 at 128, 268; Govt.'s Opp'n at 29 n.14; Govt.'s Suppl. Br. at 3. 26 Congress therefore considered the precise issue of challenges to the legality of Section 1861 orders, and the statute reflects its ultimate conclusions as to who may seek review and in what court. § 1861(f); see also H.R.Rep. No. 109–174 at 128–29, 134, 137 (rejecting amendment that would have allowed recipients of Section 1861 *22 orders to bring challenges to such orders in federal district court).
26 Congress has also not provided a suppression remedy for tangible things obtained under Section 1861, in contrast to the “use of information” provisions under nearly every other subchapter of FISA, which contain such a remedy. Compare50 U.S.C. § 1861with § 1806(e) (evidence obtained or derived from an electronic surveillance), 1825(f) (evidence obtained or derived from a physical search), 1845(e) (evidence obtained or derived from the use of a pen register or trap and trace device), 1881e (deeming information acquired under the section to be acquired “from an electronic surveillance” for purposes of Section 1806).
But even setting aside the specific fact that FISA does not contain a judicial review provision for third parties regarding Section 1861 orders, Congress's preclusive intent is all the more evident when one considers, viewing FISA as a whole, that Congress did not contemplate the participation of third parties in the statutory scheme at all.See Ark. Dairy Coop. Ass'n v. Dep't of Agric., 573 F.3d 815, 822 (D.C.Cir.2009) (noting that in reaching its decision in Block, “the Supreme Court did not concentrate simply on the presence or absence of an explicit right of appeal [for consumers] in the AMAA, but instead noted that in the ‘complex scheme’ of the AMAA, there was no provision for consumer participation of any kind.”). 27 Indeed, until 2006, FISA did not expressly contemplate participation by even the recipients of Section 1861 production orders, let alone third parties. Rather, as originally enacted, FISA was characterized by a secret, ex parte process in which only the government participated. Period. See50 U.S.C. § 1805(a), (e)(4); In re Sealed Case, 310 F.3d 717, 719 (FISA Ct. Rev.2002) (“[T]he government is the only party to FISA proceedings....”). In passing the USA PATRIOT Improvement and Reauthorization Act, however, Congress provided an avenue for recipients of Section 1861

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59 Communications Reg. (P&F) 825 production orders to participate in litigation before the FISC and thus play a role in the statutory scheme. See USA PATRIOT Improvement and Reauthorization Act § 106(f); Kris & Wilson, § 19:7. 28 As such, it would not be prudent to treat Congressional silence regarding third parties as an intent to provide broader judicial review than that specifically set forth in the statute. 29 Judicial alchemy of that sort *23 is particularly inappropriate on matters affecting national security.
27 In Arkansas Dairy, our Circuit Court addressed a suit concerning the AMAA, the same statute at issue in Block. The government, relying on Block's holding that milk consumers were barred from bringing a claim because the statute did not grant them an express right to judicial review, argued that milk producers likewise could not bring an action because the AMAA did not provide them an express right to judicial review either. See Ark. Dairy, 573 F.3d at 822. While our Circuit Court rejected this argument, stating that “this approach reads Block too broadly,” it reasoned that “the Supreme Court [in Block ] did not concentrate simply on the presence or absence of an explicit right of appeal in the AMAA, but instead noted that in the ‘complex scheme’ of the AMAA, there was no provision for consumer participation of any kind.” Id. In that particular case, our Circuit Court found that the AMAA did, in fact, contemplate the participation of milk producers in the regulatory process, and the court relied on this factor, in part, in holding that producers could bring suit under the APA. Id. at 822–27. Here, by contrast, the FISA statutory scheme does not contemplate any participation by third parties in the process of regulating governmental surveillance for foreign intelligence purposes, nor does Section 1861 contemplate the participation of third parties in adjudicating the legality of production orders. Indeed, only in the last decade has the FISA statutory scheme permitted participation by even recipients of production orders.
28 The USA PATRIOT Improvement and Reauthorization Act also added a provision allowing recipients of National Security Letters (“NSLs”) to seek judicial review of those letters. See USA PATRIOT Improvement and Reauthorization Act § 115. In contrast to the provision of a right of judicial review to recipients of Section 1861 production orders before the FISC, the act provided that the recipient of an NSL (under any of the five NSL statutes) “may, in the United States district

court for the district in which that person or entity does business or resides, petition for an order modifying or setting aside the request.” 18 U.S.C. § 3511.
29 Indeed, it would be curious to reach the opposite conclusion—that even though the statute expressly permits only recipients to challenge Section 1861 production orders in a specific forum (after Congress rejected an amendment that proposed to allow them to bring their challenges in federal district court at the same time it decided to allow recipients of NSLs to do exactly that), and even though Congress considered but declined to extend that right of judicial review to third parties, see Govt.'s Suppl. Br. at 3, these plaintiffs can nonetheless, in effect, challenge those orders in district court by bringing a claim under the APA challenging government agency conduct. In Block, when finding that the AMAA statute precluded claims by milk consumers, the Supreme Court noted that permitting consumers to seek judicial review of milk orders directly when the statute required milk handlers to first exhaust administrative remedies, “would severely disrupt this complex and delicate administrative scheme.” Block, 467 U.S. at 348, 104 S.Ct. 2450; cf.Sackett v. EPA, ––– U.S. ––––, 132 S.Ct. 1367, 1374, 182 L.Ed.2d 367 (2012) (“Where a statute provides that particular agency action is reviewable at the instance of one party, who must first exhaust administrative remedies, the inference that it is not reviewable at the instance of other parties, who are not subject to the administrative process, is strong.”). Permitting third parties to come into federal district court to challenge the legality of Section 1861 production orders, or government agency action conducted pursuant thereto, under the banner of an APA claim would likewise frustrate the statutory scheme here, where Congress in FISA has set out a specific process for judicial review of those orders by the FISC.
[7] To be sure, FISA and Section 1861do implicate the interests of cell phone subscribers when their service providers are producing metadata about their phone communications to the Government, as I will discuss below in the context of plaintiffs' constitutional claims. But the statutory preclusion inquiry “does not only turn on whether the interests of a particular class ... are implicated.” Block, 467 U.S. at 347, 104 S.Ct. 2450. “Rather, the preclusion issue turns ultimately on whether Congress intended for that class to be relied upon to challenge agency disregard of the law.” Id. Here, the detailed procedures set out in the statute for judicial review of Section 1861 production orders, at

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59 Communications Reg. (P&F) 825 the behest of recipients of those orders, indicate that, for better or worse, Congress did not intend for third parties, such as plaintiff phone subscribers here, to challenge the Government's compliance with the statute. 30
30 Finally, against this backdrop of FISA's structure, purpose, and history, I find the Government's second preclusion argument—that 18 U.S.C. § 2712 also shows Congress's intent to preclude an APA statutory claim under Section 1861, Govt.'s Opp'n at 30—more persuasive than it otherwise appears when reading that statute alone. Section 2712, which Congress added to the Stored Communications Act in 2001, provides that “[a]ny person who is aggrieved by any willful violation of [the Stored Communications Act] or of [the Wiretap Act] or of sections 106(a) [50 U.S.C. § 1806(a) ], 305(a) [50 U.S.C. § 1825(a) ], or 405(a) [50 U.S.C. § 1845(a) ] of the Foreign Intelligence Surveillance Act ... may commence an action in United States District Court against the United States to recover money damages.” The Government argues that because this statute creates a money damages action against the United States for violations of three specific provisions of FISA, it impliedly precludes an action for injunctive relief regarding any provision of FISA, such as Section 1861. See Govt.'s Opp'n at 30–31; Govt.'s Suppl. Br. at 3–4. According to the Government, “Section 2712 thus deals with claims for misuses of information obtained under FISA in great detail, including the intended remedy,” and therefore plaintiffs here cannot rely on Section 1861 “to bring a claim for violation of FISA's terms that Congress did not provide for under 18 U.S.C. § 2712.” Govt.'s Opp'n at 31. Indeed, Judge White in the Northern District of California came to this same conclusion, holding that Section 2712, “by allowing suits against the United States only for damages based on three provisions of [FISA], impliedly bans suits against the United States that seek injunctive relief under any provision of FISA.” Jewel v. Nat'l Sec. Agency, ––– F.Supp.2d ––––, 2013 WL 3829405, at *12 (N.D.Cal. July 23, 2013). Of course, Section 2712 also expressly provides that “[a]ny action against the United States under this subsection shall be the exclusive remedy against the United States for any claims within the purview of this section,”18 U.S.C. § 2712(d) (emphasis added), and therefore it might be argued that Section 2712's provision of a remedy should not be read more broadly to have any preclusive impact on violations of other provisions of FISA, such as Section 1861, not “within the purview” of that section. But

when read in conjunction with FISA overall, and in light of the secret nature of FISA proceedings designed to advance intelligence-gathering for national security purposes, I agree with the Government that Section 2712's provision of a certain remedy, money damages, for violations of only certain provisions of FISA should be read to further show Congress's intent to preclude judicial review of APA claims for injunctive relief by third parties regarding any provision of FISA, including Section 1861.
*24 II. Constitutional Claims
A. Jurisdiction [8] Finding that I lack jurisdiction to review plaintiffs' APA claim does not, however, end the Court's jurisdictional inquiry. Plaintiffs have raised several constitutional challenges to the Government's conduct at issue here. And while the Government has conceded this Court's authority to review these constitutional claims, Govt.'s Suppl. Br. at 4, I must nonetheless independently evaluate my jurisdictional authority, see Henderson ex rel. Henderson v. Shinseki, ––– U.S. ––––, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011) (“[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.”).
[9] Because Article III courts were created, in part, to deal with allegations of constitutional violations, U.S. CONST. art. III, § 2, the jurisdictional inquiry here turns, in the final analysis, on whether Congress intended to preclude judicial review of constitutional claims related to FISC orders by any non-FISC courts. Not surprisingly, the Supreme Court has addressed Congressional efforts to limit constitutional review by Article III courts. In Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), the Court stated emphatically that “where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.” Id. at 603, 108 S.Ct. 2047. Such a “heightened showing” is required “in part to avoid the ‘serious constitutional question’ that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” Id. (holding that although a former CIA employee who alleged that he was fired because he was a homosexual, in violation of the APA and the Constitution, could not obtain judicial review under the APA because such decisions were committed to the agency's

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59 Communications Reg. (P&F) 825 discretion by law, 5 U.S.C. § 701(a)(2), under a provision of the National Security Act of 1947, a court could nonetheless review the plaintiff's constitutional claims based on the same allegation).
[10] As discussed in Part I above, FISA does not include an express right of judicial review for third party legal challenges to Section 1861 orders—whether constitutional or otherwise, whether in the FISC or elsewhere. But neither does FISA contain any language expressly barring all judicial review of third party claims regarding Section 1861 orders— a necessary condition to even raise the question of whether FISA's statutory scheme of judicial review provides the exclusive means of review for constitutional claims relating to Section 1861 production orders. SeeElgin v. Dep't of the Treasury, –––U.S. ––––, 132 S.Ct. 2126, 2132, 183 L.Ed.2d 1 (2012) (“[A] necessary predicate to the application of Webster's heightened standard [is] a statute that purports to ‘deny any judicial forum for a colorable constitutional claim.’ ”); see also *25 McBryde v. Comm. to Review Circuit Council Con duct & Disability Orders of the Judicial Conference of U.S., 264 F.3d 52, 59 (D.C.Cir.2001) (the D.C. Circuit “find[s] preclusion of review for both as applied and facial constitutional challenges only if the evidence of congressional intent to preclude is ‘clear and convincing’ .... [and] we have not regarded broad and seemingly comprehensive statutory language as supplying the necessary clarity to bar as applied constitutional claims”); Ungear v. Smith, 667 F.2d 188, 193–96 (D.C.Cir.1981) (holding that statutory language in 22 U.S.C. § 1631o(c) stating administrative determinations “shall be final and shall not be subject to review by any court” did not bar courts from hearing constitutional claims relating to the statute, absent a clear expression of Congress's intent to bar such claims in the statute's legislative history). Because FISA contains no “broad and seemingly comprehensive statutory language” expressly barring judicial review of any claims under Section 1861, let alone any language directed at constitutional claims in particular, Congress has not demonstrated an intent to preclude constitutional claims sufficient to even trigger the Webster heightened standard in the first place, let alone “clear” enough to meet it.

standard is to mean anything, it is that Congress's intent to preclude review of constitutional claims must be much clearer than that sufficient to show implied preclusion of statutory claims. Where, as here, core individual constitutional rights are implicated by Government action, Congress should not be able to cut off a citizen's right to judicial review of that Government action simply because it intended for the conduct to remain secret by operation of the design of its statutory scheme. While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution.
B. Preliminary Injunction [13] When ruling on a motion for preliminary injunction, a court must consider “whether (1) the plaintiff has a substantial likelihood of success on the merits; (2) the plaintiff would suffer irreparable injury were an injunction not granted; (3) an injunction would substantially injure other interested parties; and (4) the grant of an injunction would further the public interest.” Sottera, Inc. v. Food & Drug Admin., 627 F.3d 891, 893 (D.C.Cir.2010) (internal quotation marks omitted). 31 I will address each of these factors in turn.
31 Our Circuit has traditionally applied a “sliding scale” approach to these four factors. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C.Cir.2009). In other words, “a strong showing on one factor could make up for a weaker showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C.Cir.2011). Following the Supreme Court's decision in Winter v. NRDC, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), however, our Circuit “has suggested, without deciding, that Winter should be read to abandon the sliding-scale analysis in favor of a ‘more demanding burden’ requiring Plaintiffs to independently demonstrate both a likelihood of success on the merits and irreparable harm.”Smith v. Henderson, 944 F.Supp.2d 89, 95, 2013 WL 2099804, at *4 (D.D.C. May 15, 2013) (citing Sherley, 644 F.3d at 392). Regardless of how Winter is read, the Court's analysis here is unaffected because I conclude that plaintiffs have made a sufficient showing of both a likelihood of success on the merits and irreparable harm.

[11] [12] This, of course, makes good sense. The presumption that judicial review of constitutional claims is available in federal district courts is a strong one, Webster, 486 U.S. at 603, 108 S.Ct. 2047, and if the Webster heightened

1. Plaintiffs Have Shown a Substantial Likelihood of Success on the Merits.

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Klayman v. Obama, 957 F.Supp.2d 1 (2013) 59 Communications Reg. (P&F) 825 In addressing plaintiffs' likelihood of success on the merits of their constitutional *26 claims, I will focus on their Fourth Amendment arguments, which I find to be the most likely to succeed. 32 First, however, I must address plaintiffs' standing to challenge the various aspects of the Bulk Telephony Metadata Program. SeeJack's Canoes & Kayaks, LLC v. Nat'l Park Serv., 933 F.Supp.2d 58, 76 (D.D.C.2013) (“The first component of the likelihood of success on the merits prong usually examines whether the plaintiffs have standing in a given case.” (internal quotation marks omitted)).
32 See supra note 7.
a. Plaintiffs Have Standing to Challenge Bulk Telephony Metadata Collection and Analysis.
[14] “To establish Article III standing, an injury must be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper v. Amnesty Int'l USA, ––– U.S. ––––, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) (internal quotation marks omitted). In Clapper, the Supreme Court held that plaintiffs lacked standing to challenge NSA surveillance under FISA because their “highly speculative fear” that they would be targeted by surveillance relied on a “speculative chain of possibilities” insufficient to demonstrate a “certainly impending” injury. Id. at 1147–50. Moreover, the Clapper plaintiffs' “self-inflicted injuries” (i.e., the costs and burdens of avoiding the feared surveillance) could not be traced to any provable government activity. Id. at 1150–53. 33 That is not the case here.
33 I note in passing one significant difference between the metadata collection at issue in this case and the electronic surveillance at issue in Clapper. As the Court noted in Clapper, “if the Government intends to use or disclose information obtained or derived from a [50 U.S.C.] § 1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.” 133 S.Ct. at 1154 (citing 50 U.S.C. §§ 1806(c), 1806(e), 1881e(a)). Sections 1806(c) and (e) and 1881e(a), however, apply only to “information obtained or derived from an electronic surveillance” authorized by specific statutes; they do not apply to business records collected under Section 1861. Nor does

it appear that any other statute requires the Government to notify a criminal defendant if it intends to use evidence derived from an analysis of the bulk telephony metadata collection.
[15] The NSA's Bulk Telephony Metadata Program involves two potential searches: (1) the bulk collection of metadata and (2) the analysis of that data through the NSA's querying process. For the following reasons, I have concluded that the plaintiffs have standing to challenge both. First, as to the collection, the Supreme Court decided Clapper just months before the June 2013 news reports revealed the existence and scope of certain NSA surveillance activities. Thus, whereas the plaintiffs in Clapper could only speculate as to whether they would be surveilled at all, plaintiffs in this case can point to strong evidence that, as Verizon customers, their telephony metadata has been collected for the last seven years (and stored for the last five) and will continue to be collected barring judicial or legislative intervention. Compare id. at 1148 (“[R]espondents have no actual knowledge of the Government's § 1881a targeting practices.”), with Pls.' Mem. at 1, 2 n.2, 7–8 (citing FISC orders and statements from Director of National Intelligence); Suppl. Klayman Aff. ¶ 3 (attesting to status as Verizon customer); Strange Aff. ¶ 2 (same). In addition, the Government has declassified and authenticated an April 25, 2013 FISC Order signed by Judge Vinson, which confirms that the NSA has indeed collected telephony metadata from Verizon. See Apr. 25, 2013 Secondary Order.
*27 Straining mightily to find a reason that plaintiffs nonetheless lack standing to challenge the metadata collection, the Government argues that Judge Vinson's order names only Verizon Business Network Services (“VBNS”) as the recipient of the order, whereas plaintiffs claim to be Verizon Wireless subscribers. See Govt.'s Opp'n at 21 & n.9. The Government obviously wants me to infer that the NSA may not have collected records from Verizon Wireless (or perhaps any other non-VBNS entity, such as AT & T and Sprint). Curiously, the Government makes this argument at the same time it is describing in its pleadings a bulk metadata collection program that can function only because it “creates an historical repository that permits retrospective analysis of terrorist-related communications across multiple telecommunications networks, and that can be immediately accessed as new terrorist-associated telephone identifiers come to light.” Govt.'s Opp'n at 12 (emphasis added); see alsoid. at 65 (court orders to segregate and destroy individual

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Klayman v. Obama, 957 F.Supp.2d 1 (2013) 59 Communications Reg. (P&F) 825 litigants' records “could ultimately have a degrading effect on the utility of the program”); Shea Decl. ¶ 65 (removing plaintiffs' phone numbers “could undermine the results of any authorized query of a phone number that based on RAS is associated with one of the identified foreign terrorist organizations by eliminating, or cutting off potential call chains”).
Put simply, the Government wants it both ways. Virtually all of the Government's briefs and arguments to this Court explain how the Government has acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool in combating terrorism—in which case, the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT & T and Sprint, the second and thirdlargest carriers. See Grading the top U.S. carriers in the third quarter of 2013, FIERCEWIRELESS.COM (Nov. 18, 2013); 34 Marguerite Reardon, Competitive wireless carriers take on AT & T and Verizon, CNET.COM (Sept. 10, 2012). 35 Yet in one footnote, the Government asks me to find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function. 36 Candor of this type defies common sense and does not exactly inspire confidence!
34 http.//www.fiercewireless.com/special–reports/ grading–top–us–carriers–third–quarter–2013.
35 http://news.cnet.com/8301–1035_3–57505803–94/ competitive–wireless–carriers–take–on–at–t–and– verizon/.
36 To draw an analogy, if the NSA's program operates the way the Government suggests it does, then omitting Verizon Wireless, AT & T, and Sprint from the collection would be like omitting John, Paul, and George from a historical analysis of the Beatles. A Ringo-only database doesn't make any sense, and I cannot believe the Government would create, maintain, and so ardently defend such a system.
[16] Likewise, I find that plaintiffs also have standing to challenge the NSA's querying procedures, though not for the reasons they pressed at the preliminary injunction hearing. At oral argument, I specifically asked Mr. Klayman whether plaintiffs had any “basis to believe that the NSA has done

any queries” involving their phone numbers. Transcript of Nov. 18, 2013 Preliminary Injunction Hearing at 22, Klayman I & Klayman II (“P.I. Hr'g Tr.”) [Dkt. # 41]. Mr. Klayman responded: “I think they are messing with me.” Id. He then went on to explain that he and his clients had received inexplicable text messages and emails, not to mention a disk *28 containing a spyware program. Id.; see also Strange Aff. ¶¶ 12–17. Unfortunately for plaintiffs, none of these unusual occurrences or instances of being “messed with” have anything to do with the question of whether the NSA has ever queried or analyzed their telephony metadata, so they do not confer standing on plaintiffs.
The Government, however, describes the advantages of bulk collection in such a way as to convince me that plaintiffs' metadata—indeed everyone's metadata— is analyzed, manually or automatically, 37 whenever the Government runs a query using as the “seed” a phone number or identifier associated with a phone for which the NSA has not collected metadata (e.g., phones operating through foreign phone companies). According to the declaration submitted by NSA Director of Signals Intelligence Directorate (“SID”) Teresa H. Shea, the data collected as part of the Bulk Telephony Metadata Program—had it been in place at that time—would have allowed the NSA to determine that a September 11 hijacker living in the United States had contacted a known al Qaeda safe house in Yemen. Shea Decl. ¶ 11. Presumably, the NSA is not collecting metadata from whatever Yemeni telephone company was servicing that safehouse, which means that the metadata program remedies the investigative problem in Director Shea's example only if the metadata can be queried to determine which callers in the United States had ever contacted or been contacted by the target Yemeni safehouse number. See also Shea Decl. ¶ 44 (the metadata collection allows NSA analysts to, among other things, “detect foreign identifiers associated with a foreign terrorist organization calling into the U.S. and discover which domestic identifiers are in contact with the foreign identifiers.”). When the NSA runs such a query, its system must necessarily analyze metadata for every phone number in the database by comparing the foreign target number against all of the stored call records to determine which U.S. phones, if any, have interacted with the target number. 38 Moreover, unlike a DNA or fingerprint database—which contains only a single “snapshot” record of each person therein—the NSA's database is updated every single day

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59 Communications Reg. (P&F) 825 with new information about each phone number. Compare Johnson v. Quander, 440 F.3d 489, 498–99 (D.C.Cir.2006), with Govt.'s Opp'n at 8–9. Because the Government can use daily metadata collection to engage in “repetitive, surreptitious surveillance of a citizen's private *29 goings on,” the NSA database “implicates the Fourth Amendment each time a government official monitors it.” 39 Johnson, 440 F.3d at 498–99 (distinguishing DNA profile in a law enforcement database—which is not searched each time database is accessed—from a “constantly updat[ing]” video feed, and warning that “future technological advances in DNA testing ... may empower the government to conduct wide-ranging ‘DNA dragnets' that raise justifiable citations to George Orwell”). And the NSA can access its database whenever it wants, repeatedly querying any seed approved in the last 180 days (for terms believed to be used by U.S. persons) or year (for all other terms). See Oct. 11, 2013 Primary Order at 10. 40
37 See Oct. 11, 2013 Primary order at 11 (“Queries of the BR metadata using RAS-approved selection terms may occur either by manual analyst query or through the automated query process described below.”); see also supra note 22.
38 The difference between querying a phone number belonging to a domestic Verizon subscriber (for which metadata has been collected) and querying a foreign number (for which metadata has not been collected) might be analogized as follows. A query that begins with a domestic U.S. phone number is like entering a library and looking to find all of the sources that are cited in Battle Cry of Freedom by James M. McPherson (Oxford University Press 1988). You find that specific book, open it, and there they are. “Hop one” is complete. Then, you want to find all the sources cited within each of those sources (“hop two”), and so on. At the end of a very long day, you have looked only at books, articles, etc. that were linked to Battle Cry of Freedom. Querying a foreign phone number is like entering a library and trying to find every book that cites Battle Cry of Freedom as a source. It might be referenced in a thousand books. It might be in just ten. It could be in zero. The only way to know is to check every book. At the end of a very long month, you are left with the “hop one” results (those books that cite Battle Cry of Freedom), but to get there, you had to open every book in the library.

39 It is irrelevant for Fourth Amendment purposes that the NSA might sometimes use automated analytical software. Cf. Smith, 442 U.S. at 744–45, 99 S.Ct. 2577 (“We are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.”).
40 The Government contends that “the mere collection of Plaintiffs' telephony metadata ... without review of the data pursuant to a query” cannot be considered a search “because the Government's acquisition of an item without examining its contents ‘does not compromise the interest in preserving the privacy of its contents.’ ” Govt.'s Opp'n at 49 n.33 (quoting Horton v. California, 496 U.S. 128, 141 n.11, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); citing United States v. Van Leeuwen, 397 U.S. 249, 252–53, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970)). The cases on which the Government relies are inapposite. Horton involved the seizure of tangible items under the plain view doctrine. 496 U.S. at 141–42, 110 S.Ct. 2301. The Government quotes dicta about whether the seizure of a physical container constitutes a search of the container's contents. Id. at 141, 110 S.Ct. 2301 n.11. Likewise, the Court in Van Leeuwen addressed whether the detention of a package constituted an unreasonable seizure. 397 U.S. at 252–53, 90 S.Ct. 1029. In the case of the bulk telephony metadata collection, there is no analogous “container” that remains sealed; rather, all of the metadata is handled by the Government, at least to the degree needed to integrate the metadata into the NSA's database. See Shea Decl. ¶¶ 17, 60 (government may access metadata for purpose of “rendering [it] useable to query” because “each [telecom] provider may not maintain records in a format that is subject to a standardized query”). Thus, unlike the contents of the container described in Horton, telephony metadata is not kept in an unmolested, opaque package that obscures it from the Government's view.
Accordingly, plaintiffs meet the standing requirements set forth in Clapper, as they can demonstrate that the NSA has collected and analyzed their telephony metadata and will continue to operate the program consistent with FISC opinions and orders. Whether doing so violates plaintiffs' Fourth Amendment rights is, of course, a separate question and the subject of the next section, which addresses the merits of their claims. See United States v. Lawson, 410 F.3d 735, 740 n.4 (D.C.Cir.2005) (“[A]lthough courts sometimes refer to the reasonable expectation of privacy issue as ‘standing’

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59 Communications Reg. (P&F) 825 to contest a search, the question ‘is more properly placed a search has occurred is an “antecedent question” to whether

within the purview of substantive Fourth Amendment law a search was reasonable). 42 than within that of standing.’ ” (quoting Minnesota v. Carter,

525 U.S. 83,88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998)).

42 While it is true “[t]he judiciary risks error by elaborating

too fully on the Fourth Amendment implications of

emerging technology before its role in society has

b. Plaintiffs Are Likely to Succeed on the Merits of Their Fourth Amendment Claim.

become clear,” City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 2629, 177 L.Ed.2d 216 (2010), phone call and text messaging technology is not “emerging,”

[17] [18] The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. amend IV. That right “shall not be violated, and

nor is “its role in society” unclear. I therefore believe that it is appropriate and necessary to elaborate on the Fourth Amendment implications of the NSA's metadata collection program.

no Warrants shall issue, but upon probable cause, supported

by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Id. A Fourth Amendment “search” occurs either when

i. The Collection and Analysis of Telephony Metadata Constitutes a Search.

“the Government *30 obtains information by physically intruding on a constitutionally protected area,” United States v. Jones, –––U.S. ––––, 132 S.Ct. 945, 950 n.3, 181 L.Ed.2d 911 (2012), or when “the government violates a subjective expectation of privacy that society recognizes as reasonable,” Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). This case obviously does not involve a physical intrusion, and plaintiffs do not claim otherwise. 41

The analysis of this threshold issue of the expectation of privacy must start with the Supreme Court's landmark opinion in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), which the FISC has said “squarely control[s]” when it comes to “[t]he production of telephone service provider metadata.” Am. Mem. Op., In re Application of the [FBI] for an Order Requiring the Production of Tangible Things from [REDACTED], No. BR 13–109 at 6–9 (FISC Aug. 29, 2013) (attached as Ex. A to Gilligan Decl.) [Dkt. # 25–2]. In Smith, police were investigating a robbery victim's reports that she had received threatening and obscene phone

41 “A ‘seizure’ of property occurs when there is some meaningful interference with an individual's possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Plaintiffs have not offered any theory as to how they would have a possessory interest in their phone data held by Verizon, and I am aware of none.

calls from someone claiming to be the robber. Id. at 737, 99 S.Ct. 2577. Without obtaining a warrant or court order, police installed a pen register, which revealed that a telephone in Smith's home had been used to call the victim on one occasion. 43 Id. The Supreme Court held that Smith had no reasonable expectation of privacy in the numbers dialed from his phone because he voluntarily transmitted them to

[19] The threshold issue that I must address, then, is whether his phone company, and because it is generally known that

plaintiffs have a reasonable expectation of privacy that is phone companies keep such information in their business

violated when the Government indiscriminately collects their records. Id. at 742–44, 99 S.Ct. 2577. The main thrust of

telephony metadata along with the metadata of hundreds of the Government's argument here *31 is that under Smith,

millions of other citizens without any particularized suspicion no one has an expectation of privacy, let alone a reasonable

of wrongdoing, retains all of that metadata for five years, and one, in the telephony metadata that telecom companies hold

then queries, analyzes, and investigates that data without prior as business records; therefore, the Bulk Telephony Metadata

judicial approval of the investigative targets. If they do— Program is not a search. Govt.'s Opp'n at 45–50. I disagree.

and a Fourth Amendment search has thus occurred—then the

next step of the analysis will be to determine whether such a 43 A “pen register” is “a device or process which records

search is “reasonable.” See id. at 31, 121 S.Ct. 2038 (whether

or decodes dialing, routing, addressing, or signaling

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information transmitted by an instrument or facility from which a wire or electronic communication is transmitted” (i.e., it records limited data on outgoing calls). 18 U.S.C. § 3127(3).
The question before me is not the same question that the Supreme Court confronted in Smith. To say the least, “whether the installation and use of a pen register constitutes a ‘search’ within the meaning of the Fourth Amendment,” id. at 736, 99 S.Ct. 2577—under the circumstances addressed and contemplated in that case—is a far cry from the issue in this case.
Indeed, the question in this case can more properly be styled as follows: When do present-day circumstances— the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.
In United States v. Jones,––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), five justices found that law enforcement's use of a GPS device to track a vehicle's movements for nearly a month violated Jones's reasonable expectation of privacy. See id. at 955–56 (Sotomayor, J., concurring); id. at 964 (Alito, J., concurring). Significantly, the justices did so without questioning the validity of the Court's earlier decision in United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), that use of a tracking beeper does not constitute a search because “[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” 44 Id. at 281, 103 S.Ct. 1081. Instead, they emphasized the many significant ways in which the short-range, short-term tracking device used in Knotts differed from the constant month-long surveillance achieved with the GPS device attached to Jones's car. See Jones, 132 S.Ct. at 956 n.* (Sotomayor, J., concurring) (Knotts “does not foreclose the conclusion that GPS monitoring, in the absence of a physical intrusion, is a Fourth Amendment search”); id. at 964 (Alito, J., concurring) (“[R]elatively short-term monitoring of a person's movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations

of privacy.” (citation omitted)); see also United States v. Maynard, 615 F.3d 544, 557 (D.C.Cir.2010), aff'd sub nom. Jones,–––U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (“Knotts held only that ‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,’ not that such a person has no reasonable expectation of privacy in his movements whatsoever, world without end, as the Government would have it.” (citation omitted; quoting Knotts, 460 U.S. at 281, 103 S.Ct. 1081)). 45
44 In Jones, the Government relied heavily on Knotts (and Smith ) as support for the argument that Jones had no expectation of privacy in his movements on the roads because he voluntarily disclosed them to the public. See generallyBrief for Petitioner, United States v. Jones,132 S.Ct. 945 (2012) (No. 10–1259), 2011 WL 3561881; Reply Brief for Petitioner, United States v. Jones,132 S.Ct. 945 (2012) (No. 10–1259), 2011 WL 5094951. Five justices found that argument unconvincing.
45 Lower courts, too, have recognized that the Supreme Court'sFourth Amendment decisions cannot be read too broadly. See, e.g.,United States v. Cuevas–Sanchez, 821 F.2d 248, 251 (5th Cir.1987) (“It does not follow that [California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), which held that police did not violate a reasonable expectation of privacy when they engaged in a warrantless aerial observation of marijuana plants growing on curtilage of a home using only the naked eye from a height of 1,000 feet,] authorizes any type of surveillance whatever just because one type of minimally-intrusive aerial observation is possible.”).
[20] [21] *32 Just as the Court in Knotts did not address the kind of surveillance used to track Jones, the Court in Smith was not confronted with the NSA's Bulk Telephony Metadata Program. 46 Nor could the Court in 1979 have ever imagined how the citizens of 2013 would interact with their phones. For the many reasons discussed below, I am convinced that the surveillance program now before me is so different from a simple pen register that Smith is of little value in assessing whether the Bulk Telephony Metadata Program constitutes a Fourth Amendment search. To the contrary, for the following reasons, I believe that bulk telephony metadata collection and analysis almost certainly does violate a reasonable expectation of privacy.

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59 Communications Reg. (P&F) 825 46 True, the Court in Knotts explicitly “reserved the
question whether ‘different constitutional principles may be applicable’ to ‘dragnet-type law enforcement practices' of the type that GPS tracking made possible” in Jones.Jones, 132 S.Ct. at 952 n.6 (quoting Knotts, 460 U.S. at 284, 103 S.Ct. 1081); see also id. at 956, n.* (Sotomayor, J., concurring). That the Court in Smith did not explicitly hold open the question of whether an exponentially broader, high-tech, years-long bulk telephony metadata collection program would infringe on reasonable expectations of privacy does not mean that the Court's holding necessarily extends so far as to answer that novel question. The Supreme Court itself has recognized that prior Fourth Amendment precedents and doctrines do not always control in cases involving unique factual circumstances created by evolving technology. See, e.g., Kyllo, 533 U.S. at 34, 121 S.Ct. 2038 (“To withdraw protection of this minimum expectation [of privacy in the home] would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment.”). If this isn't such a case, then what is?
First, the pen register in Smith was operational for only a matter of days between March 6, 1976 and March 19, 1976, and there is no indication from the Court's opinion that it expected the Government to retain those limited phone records once the case was over. See 442 U.S. at 737, 99 S.Ct. 2577. In his affidavit, Acting Assistant Director of the FBI Robert J. Holley himself noted that “[p]en-register and trap-and-trace (PR/TT) devices provide no historical contact information, only a record of contacts with the target occurring after the devices have been installed.” Holley Decl. ¶ 9. This short-term, forward-looking (as opposed to historical), and highly-limited data collection is what the Supreme Court was assessing in Smith. The NSA telephony metadata program, on the other hand, involves the creation and maintenance of a historical database containing five years ' worth of data. And I might add, there is the very real prospect that the program will go on for as long as America is combatting terrorism, which realistically could be forever!
[22] Second, the relationship between the police and the phone company in Smith is nothing compared to the relationship that has apparently evolved over the last seven years between the Government and telecom companies. Compare Smith, 442 U.S. at 737, 99 S.Ct. 2577 (“[T]he telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner's home.”), with Govt.'s Opp'n at

8–9 (“Under this program, ... certain telecommunications service providers [ ] produce to the NSA on a daily basis electronic copies of call detail records, or telephony metadata.... The FISC first authorized the program in May 2006, and since then has renewed the *33 program thirty-five times ....” (emphases added; citation and internal quotation marks omitted)). The Supreme Court itself has long-recognized a meaningful difference between cases in which a third party collects information and then turns it over to law enforcement, see, e.g.,Smith, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220; United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), and cases in which the government and the third party create a formalized policy under which the service provider collects information for law enforcement purposes, seeFerguson v. Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001), with the latter raising Fourth Amendment concerns. In Smith, the Court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation, seeSmith, 442 U.S. at 737, 99 S.Ct. 2577, which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the NSA now receives as part of its Bulk Telephony Metadata Program. It's one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government. Cf. U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (“Plainly there is a vast difference between the public records that might be found after a diligent search of [various third parties' records] and a computerized summary located in a single clearinghouse of information.”). 47
47 When an individual makes his property accessible to third parties, he may still retain some expectation of privacy based on his understanding of how third parties typically handle that property. SeeBond v. United States, 529 U.S. 334, 338–39, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) (“[A] bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here. We therefore hold that the agent's physical manipulation of petitioner's bag violated the Fourth Amendment.”).

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59 Communications Reg. (P&F) 825 Third, the almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. In Smith, the Supreme Court was actually considering whether local police could collect one person's phone records for calls made after the pen register was installed and for the limited purpose of a smallscale investigation of harassing phone calls. See Smith, 442 U.S. at 737, 99 S.Ct. 2577. The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction. By comparison, the Government has at its disposal today the most advanced twenty-first century tools, allowing it to “store such records and efficiently mine them for information years into the future.” Jones, 132 S.Ct. at 956 (Sotomayor, J., concurring). And these technologies are “cheap in comparison to conventional surveillance techniques and, by design, proceed[ ] surreptitiously,” thereby “evad[ing] the ordinary checks that constrain abusive law enforcement practices: limited police ... resources and community hostility.” Id. 48
48 The unprecedented scope and technological sophistication of the NSA's program distinguish it not only from the Smith pen register, but also from metadata collections performed as part of routine criminal investigations. To be clear, this opinion is focusing only on the program before me and not any other law enforcement practices. Like the concurring justices in Jones, I cannot “identify with precision the point at which” bulk metadata collection becomes a search, but there is a substantial likelihood that the line was crossed under the circumstances presented in this case. See Jones, 132 S.Ct. at 964 (Alito, J., concurring).
Finally, and most importantly, not only is the Government's ability to collect, *34 store, and analyze phone data greater now than it was in 1979, but the nature and quantity of the information contained in people's telephony metadata is much greater, as well. According to the 1979 U.S. Census, in that year, 71,958,000 homes had telephones available, while 6,614,000 did not. U.S. DEP'T OF COMMERCE & U.S. DEP'T OF HOUS. & URBAN DEV., ANNUAL HOUSING SURVEY: 1979, at 4 (1981) (Table A–1: Characteristics of the Housing Inventory: 1979 and 1970). In December 2012, there were a whopping 326,475,248 mobile subscriber connections in the United States, of which

approximately 304 million were for phones and twenty-two million were for computers, tablets, and modems. 49 CTIA —The Wireless Ass'n (“CTIA”), Wireless Industry Survey Results—December 1985 to December 2012, at 2, 6 (2013) (“CTIA Survey Results ”); 50 see also Sixteenth Report, In re Implementation of Section 6002(b) of Omnibus Budget Reconciliation Act, WT Dkt. No. 11–186, at 9 (F.C.C. Mar. 21, 2013) (“[A]t the end of 2011 there were 298.3 million subscribers to mobile telephone, or voice, service, up nearly 4.6 percent from 285.1 million at the end of 2010.”). The number of mobile subscribers in 2013 is more than 3,000 times greater than the 91,600 subscriber connections in 1984, INDUS. ANALYSIS DIV., FED. COMMC'NS COMM'N, TRENDS IN TELEPHONE SERVICE 8 (1998), and more than triple the 97,035,925 subscribers in June 2000, CTI Survey Results, supra, at 4. 51 It is now safe to assume that the vast majority of people reading this opinion have at least one cell phone within arm's reach (in addition to other mobile devices). Joanna Brenner, Pew Internet: Mobile (Sept. 18, 2013) (91% of American adults have a cell phone, 95–97% of adults age 18 to 49); 52 CTIA, Wireless Quick Facts (last visited Dec. 10, 2013) (“CTIA Quick Facts ”) (wireless penetration— the number of active wireless units divided by total U.S. and territorial population—was 102.2%) as of December 2012). 53 In fact, some undoubtedly will be reading this opinion on their cellphones. Maeve Duggan, Cell Phone Activities 2013 (Sept. 19, 2013) (60% of cell phone owners use them to access internet). 54 Cell phones have also morphed into multi-purpose devices. They are now maps and music players. Id. (49% of cell phone owners use their phones to get directions and 48% to listen to music). They are cameras. Keith L. Alexander, Camera phones become courthouse safety issue, WASH. POST,, Apr. 22, 2013, at B01. They are even lighters that people hold up at rock concerts. Andy Rathbun, Cool 2 Know—Cellphone virtuosos, NEWSDAY, *35 Apr. 20, 2005, at B02. They are ubiquitous as well. Count the phones at the bus stop, in a restaurant, or around the table at a work meeting or any given occasion. Thirty-four years ago, none of those phones would have been there. 55 Thirty-four years ago, city streets were lined with pay phones. Thirty-four years ago, when people wanted to send “text messages,” they wrote letters and attached postage stamps. 56

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59 Communications Reg. (P&F) 825 49 The global total is 6.6 billion. ERICSSON,
Mobility Report on the Pulse of Networked Society, at 4 (Nov.2013), available at http:// www.ericsson.com/res/docs/2013/ericssonmobility-report-november–2013.pdf.

50 http://files.ctia.org/pdf/ CTIA_Survey_YE_2012_Graphics-FINAL.pdf.

51 Mobile phones are rapidly replacing traditional landlines, with 38.2% of households going “wireless-only” in 2012. CTIA, Wireless Quick Facts, http://www.ctia.org/your-wireless-life/ how-wireless-works/wireless-quick-facts (last visited Dec. 10, 2013); see also Jeffrey Sparshott, More PeopleSay Goodbye to Landlines, WALL ST. J., Sept. 6, 2013, at A5.

52 http://pewinternet.org/Commentary/2012/February/ Pew-Internet-Mobile.aspx.

53 http://www.ctia.org/your-wireless-life/how-wirelessworks/wireless-quick-facts.

54 http://pewinternet.org/Reports/2013/Cell-Activities/ Main-Findings.aspx.

55 Mobile Telephone, BRITANNICA.COM, http://

www.britannica.com

/EBchecked/topic/1482373/

mobile-telephone?anchor=ref1079017 (last visited Dec.

13, 2013) (“[A] Japanese system was the first cellular

system to be deployed, in 1979.”); Tom Farley,

Mobile telephone history, TELEKTRONIKK, March/

April 2005, at 28 (“An 88 cell system in the challenging

cityscape of Tokyo began in December, 1979.... The first

North American commercial system began in August,

1981 in Mexico City.”).

56 It is not clear from the pleadings whether “telephony metadata” and “comprehensive communications routing information” includes data relating to text messages. See supra note 16. If it does, then in 2012, the Government collected an additional six billion communications each day (69,635 each second ). See Infographic—Americanssent and received more than 69,000 texts every second in 2012, CTIA.org (Nov. 25, 2013), http:// www.ctia.org/resource-library/facts–and– infographics/archive/americans–texts–2012– infographic.

Admittedly, what metadata is has not changed over time. As in Smith, the types of information at issue in this case are

relatively limited: phone numbers dialed, date, time, and the like. 57 But the ubiquity *36 of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people's lives. See Quon, 130 S.Ct. at 2630 (“Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy.... [And] the ubiquity of those devices has made them generally affordable ....”); cf. Jones, 132 S.Ct. at 956 (Sotomayor, J., concurring) (discussing the “substantial quantum of intimate information about any person” captured by GPS tracking). Put simply, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago. As a result, people make calls and send text messages now that they would not (really, could not ) have made or sent back when Smith was decided—for example, every phone call today between two people trying to locate one another in a public place. See CTIA Quick Facts, supra (2.3 trillion voice minutes used in 2012, up from 62.9 billion in 1997). This rapid and monumental shift towards a cell phone-centric culture means that the metadata from each person's phone “reflects a wealth of detail about her familial, political, professional, religious, and sexual associations,” Jones, 132 S.Ct. at 955 (Sotomayor, J., concurring), that could not have been gleaned from a data collection in 1979.See also Decl. of Prof. Edward W. Felten (“Felten Decl.”) [Dkt. # 22– 1], at ¶¶ 38–58. Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic—a vibrant and constantly updating picture of the person's life. SeeMaynard, 615 F.3d at 562–63. 58 Whereas some may assume that these cultural changes will force people to “reconcile themselves” to an “inevitable” “diminution of privacy that new technology entails,” Jones, 132 S.Ct. at 962 (Alito, J., concurring), I think it is more likely that these trends have resulted in a greater expectation of privacy and a recognition that society views that expectation as reasonable. 59
57 There are, however, a few noteworthy distinctions between the data at issue in Smith and the metadata that exists nowadays. For instance, the pen register in Smith did not tell the government whether calls were completed or the duration of any calls, see Smith, 442 U.S. at 741,

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59 Communications Reg. (P&F) 825 99 S.Ct. 2577, whereas that information is captured in the NSA's metadata collection. A much more significant difference is that telephony metadata can reveal the user's location, see generallyNew Jersey v. Earls, 214 N.J. 564, 70 A.3d 630, 637–38 (2013), which in 1979 would have been entirely unnecessary given that landline phones are tethered to buildings. The most recent FISC order explicitly “does not authorize the production of cell site location information,” Oct. 11, 2013 Primary order at 3 n.1, and the Government has publicly disavowed such collection, see Transcript of June 25, 2013 Newseum Special Program: NSA Surveillance Leaks: Facts and Fiction, Remarks of Robert Litt, Gen. Counsel, Office of Dir. of Nat'l Intelligence, available at http://www.dni.gov/index.php/ newsroom/speeches–and–interviews/195–speeches– interviews–2013/887–transcript–newseum–special– program–nsa–surveillance–leaks–facts–and-fiction (“I want to make perfectly clear we do not collect cellphone location information under this program, either GPS information or cell site tower information.”). That said, not all FISC orders have been made public, and I have no idea how location data has been handled in the past. Plaintiffs do allege that location data has been collected, see Second Am. Compl. ¶ 28; Pls.' Mem. at 10–11, and the Government's brief does not refute that allegation (though one of its declarations does, seeShea Decl. ¶ 15). See also supra note 17. Moreover, the most recent FISC order states, and defendants concede, that “ ‘telephony metadata’ includes ... trunk identifier[s],” Oct. 11, 2013 Primary order at 3 n.1; Govt.'s Opp'n at 9, which apparently “can reveal where [each] call enter[s] the trunk system” and can be used to “locate a phone within approximately a square kilometer,” Patrick Di Justo, What the N.S.A. Wants to Know About Your Calls, NEW YORKER (June 7, 2013), http:// www.newyorker.com/online/blogs/ elements/2013/06/what-the-nsa-wants-to-knowabout-your-phone-calls.html. And “if [the metadata] includes a request for every trunk identifier used throughout the interaction,” that “could allow a phone's movements to be tracked.” Id. Recent news reports, though not confirmed by the Government, cause me to wonder whether the Government's briefs are entirely forthcoming about the full scope of the Bulk Telephony Metadata Program. See, e.g., Barton

Gellman & Ashkan Soltani, NSA maps targets by their phones, WASH. POST,, Dec. 5, 2013, at A01. The collection of location data would, of course, raise its own Fourth Amendment concerns, see, e.g.,In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to Gov't, 620 F.3d 304, 317 (3d Cir.2010) (“A cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way.... [I]t is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information.”), but my decision on this preliminary injunction does not turn on whether the NSA has in fact collected that data as part of the bulk telephony metadata program.
58 The Government maintains that the metadata the NSA collects does not contain personal identifying information associated with each phone number, and in order to get that information the FBI must issue a national security letter (“NSL”) to the phone company. Govt.'s Opp'n at 48–49; P.I. Hr'g Tr. at 44–45. Of course, NSLs do not require any judicial oversight, see18 U.S.C. § 2709; 12 U.S.C. § 3414, 15 U.S.C. § 1681u; 15 U.S.C. § 1681v; 50 U.S.C. § 3162, meaning they are hardly a check on potential abuses of the metadata collection. There is also nothing stopping the Government from skipping the NSL step altogether and using public databases or any of its other vast resources to match phone numbers with subscribers. See, e.g., James Ball et al., Covert surveillance: The reaction: ‘They are tracking the calling patterns of the entire country’, GUARDIAN, June 7, 2013, at 5 (“[W]hen cross-checked against other public records, the metadata can reveal someone's name, address, driver's licence, credit history, social security number and more.”); Felten Decl. ¶ 19 & n.14; Suppl. Decl. of Prof. Edward W. Felten [Dkt. # 28], at ¶¶ 3– 4 (“[I]t would be trivial for the government to obtain a subscriber's name once it has that subscriber's phone number.... It is extraordinarily easy to correlate a phone number with its unique owner.”).
59 Public opinion polls bear this out. See, e.g., Associated Press, 9/11 Anniversary: Poll finds public doubts growing on federal surveillance, privacy, HOUS. CHRON., Sept. 11, 2013, at A6 (“Some 56 percent oppose the NSA's collection of telephone records for future investigations even though they do not include actual conversations.”).

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59 Communications Reg. (P&F) 825 *37 In sum, the Smith pen register and the ongoing NSA Bulk Telephony Metadata Program have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones. Plaintiffs have alleged that they engage in conduct that exhibits a subjective expectation of privacy in the bulk, five-year historical record of their telephony metadata, see Pls.' Mem. at 21; Suppl. Klayman Aff. ¶¶ 5, 10, 13; Strange Aff. ¶¶ 11, 19, and I have no reason to question the genuineness of those subjective beliefs. 60 The more difficult question, however, is whether their expectation of privacy is one that society is prepared to recognize as objectively reasonable and justifiable. As I said at the outset, the question before me is not whether Smith answers the question of whether people can have a reasonable expectation of privacy in telephony metadata under all circumstances. Rather, the question that I will ultimately have to answer when I reach the merits of this case someday is whether people have a reasonable expectation of privacy that is violated when the Government, without any basis whatsoever to suspect them of any wrongdoing, collects and stores for five years their telephony metadata for purposes of subjecting it to high-tech querying and analysis without any case-by-case judicial approval. For the many reasons set forth above, it is significantly likely that on that day, I will answer that question in plaintiffs' favor.
60 If plaintiffs lacked such a subjective expectation of privacy in all of their cell phone metadata, I would likely find that it is the result of “ ‘condition[ing]’ by influences alien to well-recognized Fourth Amendment freedoms.” Smith, 442 U.S. at 740 n.5, 99 S.Ct. 2577. In 1979, the Court announced that numbers dialed on a phone are not private, and since that time, the Government and courts have gradually (but significantly) expanded the scope of what that holding allows. Now, even local police departments are routinely requesting and obtaining massive cell phone “tower dumps,” each of which can capture data associated with thousands of innocent Americans' phones. See Ellen Nakashima, ‘Tower dumps' give police masses of cellphone data, WASH. POST,, Dec. 9, 2013, at A01. Targeted tower dumps may be appropriate under certain circumstances and with appropriate oversight and limitations, see In re Search of Cellular Tel. Towers, 945 F.Supp.2d 769, 770– 71, 2013 WL 1932881, at *2 (S.D.Tex. May 8, 2013) (requiring warrant and return of all irrelevant records to telecom provider for 77–tower dump of all data for

five-minute period), and fortunately, that question is not before me here. The point is, however, that the experiences of many Americans—especially those who have grown up in the post-Smith, post-cell phone, postPATRIOT Act age—might well be compared to those of the “refugee from a totalitarian country, unaware of this Nation's traditions, [who] erroneously assume [ ] that police were continuously monitoring” telephony metadata. Smith, 442 U.S. at 740 n.5, 99 S.Ct. 2577. Accordingly, their “subjective expectations obviously could play no meaningful role in ascertaining ... the scope of Fourth Amendment protection,” and “a normative inquiry would be proper.” Id.
ii. There Is a Significant Likelihood Plaintiffs Will Succeed in Showing that the Searches Are Unreasonable.
[23] Having found that a search occurred in this case, I next must “examin [e] the totality of the circumstances to determine whether [the] search is reasonable within the meaning of the Fourth Amendment.” Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (internal quotation marks omitted). “ ‘[A]s a general matter, warrantless searches are per se unreasonable under the Fourth Amendment.’ ” *38 Nat'l Fed'n of Fed. Emps.–IAM v. Vilsack, 681 F.3d 483, 488–89 (D.C.Cir.2012) (quoting Quon, 130 S.Ct. at 2630); see alsoChandler v. Miller, 520 U.S. 305, 313, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997) (“To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.”).
[24] [25] [26] [27] The Supreme Court has recognized only a “ ‘few specifically established and well-delineated exceptions to that general rule,’ ” Nat'l Fed'n of Fed. Emps.–IAM, 681 F.3d at 489 (quoting Quon, 130 S.Ct. at 2630), including one that applies when “ ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable,’ ” id. (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995)). “Even where the government claims ‘special needs,’ ” as it does in this case, “a warrantless search is generally unreasonable unless based on ‘some quantum of individualized suspicion.’ ” Id. (quoting Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 624, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)). Still, a suspicionless search may be reasonable “ ‘where the privacy interests implicated by the

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59 Communications Reg. (P&F) 825 search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion.’ ” Id. (quoting Skinner, 489 U.S. at 624, 109 S.Ct. 1402). As such, my task is to “ ‘balance the [plaintiffs'] privacy expectations against the government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.’ ” Id. (quoting Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665–66, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989)). This is a “ ‘context-specific inquiry’ ” that involves “ ‘examining closely the competing private and public interests advanced by the parties.’ ” Id. (quoting Chandler, 520 U.S. at 314, 117 S.Ct. 1295, 137 L.Ed.2d 513)). The factors I must consider include: (1) “the nature of the privacy interest allegedly compromised” by the search, (2) “the character of the intrusion imposed” by the government, and (3) “the nature and immediacy of the government's concerns and the efficacy of the [search] in meeting them.” Bd. of Educ. v. Earls, 536 U.S. 822, 830–34, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002).
“Special needs” cases, not surprisingly, form something of a patchwork quilt. For example, schools and government employers are permitted under certain circumstances to test students and employees for drugs and alcohol, see Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735; Vernonia Sch. Dist., 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564; Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685; Skinner, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639, and officers may search probationers and parolees to ensure compliance with the rules of supervision, seeGriffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). 61 The doctrine has also been applied in cases involving efforts to prevent acts of terrorism in crowded transportation centers. See, e.g., *39 Cassidy v. Chertoff, 471 F.3d 67 (2d Cir.2006) (upholding searches of carryon bags and automobiles that passengers bring on ferries); MacWade v. Kelly, 460 F.3d 260 (2d Cir.2006) (upholding searches of bags in New York City subway system). To my knowledge, however, no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion. In effect, the Government urges me to be the first non-FISC judge to sanction such a dragnet.

61 Suspicionless searches and seizures have also been allowed in other contexts not analyzed under the “special needs” framework, including administrative inspections of “closely regulated” businesses, seeNew York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), searches of fire-damaged buildings for the purpose of determining the cause of the fire, see Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), and highway checkpoints set up to catch intoxicated motorists and illegal entrants into the United States, seeMich. Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990); United States v. Martinez–Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).
[28] For reasons I have already discussed at length, I find that plaintiffs have a very significant expectation of privacy in an aggregated collection of their telephony metadata covering the last five years, and the NSA's Bulk Telephony Metadata Program significantly intrudes on that expectation. 62 Whether the program violates the Fourth Amendment will therefore turn on “the nature and immediacy of the government's concerns and the efficacy of the [search] in meeting them.” Earls, 536 U.S. at 834, 122 S.Ct. 2559.
62 These privacy interests are not “mitigated ... by the statutorily mandated restrictions on access to and dissemination of the metadata that are written into the FISC's orders.” Govt.'s Opp'n at 51–52. First, there are no minimization procedures applicable at the collection stage; the Government acknowledges that FISC orders require the recipients to turn over all of their metadata without limit. See Oct. 11, 2013 Primary order at 3–4. Further, the most recent order of the FISC states that any trained NSA personnel can access the metadata, with “[t]echnical personnel” authorized to run queries even using non-RAS-approved selection terms for purposes of “perform[ing] those processes needed to make [the metadata] usable for intelligence analysis.” Id. at 5. The “[r]esults of any intelligence analysis queries,” meanwhile, “may be shared, prior to minimization, for intelligence analysis purposes among [trained] NSA analysts.” Id. at 12–13 (emphasis added); see also Shea Decl. ¶¶ 30, 32 (minimization procedures “guard against inappropriate or unauthorized dissemination of information relating to U.S. persons,” and “results of authorized queries of the metadata may be shared, without minimization, among trained NSA personnel for analysis purposes” (emphases added)). These procedures

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59 Communications Reg. (P&F) 825 in no way mitigate the privacy intrusion that occurs when the NSA collects, queries, and analyzes metadata. And that's even assuming the Government complies with all of its procedures—an assumption that is not supported by the NSA's spotty track record to date. See supra notes 23–25 and accompanying text.
[29] The Government asserts that the Bulk Telephony Metadata Program serves the “programmatic purpose” of “identifying unknown terrorist operatives and preventing terrorist attacks.” Govt.'s Opp'n at 51—an interest that everyone, including this Court, agrees is “of the highest order of magnitude,” In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1012 (FISA Ct. Rev.2008); see alsoHaig v. Agee, 453 U.S. 280, 307, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (“It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.” (internal quotation marks omitted)). 63 A closer examination of the record, however, reveals that the Government's *40 interest is a bit more nuanced—it is not merely to investigate potential terrorists, but rather, to do so faster than other investigative methods might allow. Indeed, the affidavits in support of the Government's brief repeatedly emphasize this interest in speed. For example, according to SID Director Shea, the primary advantage of the bulk metadata collection is that “it enables the Government to quickly analyze past connections and chains of communication,” and “increases the NSA's ability to rapidly detect persons affiliated with the identified foreign terrorist organizations.” Shea Decl. ¶ 46 (emphases added); see also id. ¶ 59 (“Any other means that might be used to attempt to conduct similar analyses would require multiple, time-consuming steps that would frustrate needed rapid analysis in emergent situations, and could fail to capture some data available through bulk metadata analysis.” (emphases added)). FBI Acting Assistant Director of the Counterterrorism Division Robert J. Holley echoes Director Shea's emphasis on speed: “It is imperative that the United States Government have the capability to rapidly identify any terrorist threat inside the United States.” Holley Decl. ¶ 4 (emphasis added); see also id. ¶¶ 28–29 (”[T]he agility of querying the metadata collected by NSA under this program allows for more immediate contact chaining, which is significant in time-sensitive situations.... The delay inherent in issuing new national security letters would necessarily mean losing valuable time.... [A]ggregating the NSA telephony metadata from different telecommunications

providers enhances and expedites the ability to identify chains of communications across multiple providers.” (emphases added)).
63 It bears noting that the Government's interest in stopping and prosecuting terrorism has not led courts to abandon familiar doctrines that apply in criminal cases generally.See United States v. Ressam, 679 F.3d 1069, 1106 (9th Cir.2012) (Schroeder, J., dissenting) (collecting cases in which “courts have treated other issues in terrorism cases in ways that do not differ appreciably from more broadly applicable doctrines”). In fact, the Supreme Court once expressed in dicta that an otherwise impermissible roadblock “would almost certainly” be allowed “to thwart an imminent terrorist attack.” City of Indianapolis v. Edmond, 531 U.S. 32, 44, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (emphases added). The Supreme Court has never suggested that all Fourth Amendment protections must defer to any Government action that purportedly serves national security or counterterrorism interests.
Yet, turning to the efficacy prong, the Government does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature. In fact, none of the three “recent episodes” cited by the Government that supposedly “illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack” involved any apparent urgency. See Holley Decl. ¶¶ 24–26. In the first example, the FBI learned of a terrorist plot still “in its early stages” and investigated that plot before turning to the metadata “to ensure that all potential connections were identified.” Id. ¶ 24. Assistant Director Holley does not say that the metadata revealed any new information— much less time-sensitive information— that had not already come to light in the investigation up to that point. Id. In the second example, it appears that the metadata analysis was used only after the terrorist was arrested “to establish [his] foreign ties and put them in context with his U.S. based planning efforts.”Id. ¶ 25. And in the third, the metadata analysis “revealed a previously unknown number for [a] co-conspirator ... and corroborated his connection to [the target of the investigation] as well as to other U.S.based extremists.” Id. ¶ 26. Again, there is no indication that these revelations were immediately useful or that they prevented an impending attack. Assistant Director Holley

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59 Communications Reg. (P&F) 825 even concedes that bulk metadata analysis only “sometimes provides information earlier than the FBI's other investigative methods and techniques.” Id. ¶ 23 (emphasis added). 64 Given the limited record before me at this point in the litigation—most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics —I have serious doubts about the efficacy of the metadata collection program *41 as a means of conducting timesensitive investigations in cases involving imminent threats of terrorism. 65 SeeChandler, 520 U.S. at 318–19, 117 S.Ct. 1295 (“Notably lacking in respondents' presentation is any indication of a concrete danger demanding departure from the Fourth Amendment's main rule.”). Thus, plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the Government's interest in collecting and analyzing bulk telephony metadata and therefore the NSA's bulk collection program is indeed an unreasonable search under the Fourth Amendment. 66
64 Such candor is as refreshing as it is rare.
65 The Government could have requested permission to present additional, potentially classified evidence in camera, but it chose not to do so. Although the Government has publicly asserted that the NSA's surveillance programs have prevented fiftyfour terrorist attacks, no proof of that has been put before me. See also Justin Elliott & Theodoric Meyer, Claim on ‘Attacks Thwarted’ by NSA Spreads Despite Lack of Evidence, PROPUBLICA.ORG (Oct. 23, 2013), http://www.propublica.org/article/claim-onattacks-thwarted-by-nsa-spreads-despite-lack-ofevidence (“ ‘We've heard over and over again the assertion that 54 terrorist plots were thwarted’ by the [NSA's] programs.... ‘That's plainly wrong.... These weren't all plots and they weren't all thwarted. The American people are getting left with the inaccurate impression of the effectiveness of the NSA programs.’ ” (quoting Sen. Patrick Leahy)); Ellen Nakashima, NSA's need to keep database questioned, WASH. POST,, Aug. 9, 2013, at A01 (“[Senator Ron] Wyden noted that [two suspects arrested after an investigation that involved use of the NSA's metadata database] were arrested ‘months or years after they were first identified’ by mining the phone logs.”).

66 The Government points out that it could obtain plaintiffs' metadata through other means that potentially raise fewer Fourth Amendment concerns. See Govt.'s Opp'n at 6 (“The records must be of a type obtainable by either a grand jury subpoena, or an order issued by a U.S. court directing the production of records or tangible things.” (citing 50 U.S.C. § 1861(c)(2)(D)); Holley Decl. ¶ 14 (“In theory, the FBI could seek a new set of orders on a daily basis for the records created within the preceding 24 hours.”). Even if true, “[t]he fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment.” Kyllo, 533 U.S. at 35 n.2, 121 S.Ct. 2038.
[30] [31] [32] I realize, of course, that such a holding might appear to conflict with other trial courts, see, e.g., United States v. Moalin, Crim. No. 10–4246, 2013 WL 6079518, at *5–8 (S.D.Cal. Nov. 18, 2013) (holding that bulk telephony metadata collection does not violate Fourth Amendment); United States v. Graham, 846 F.Supp.2d 384, 390–405 (D.Md.2012) (holding that defendants had no reasonable expectation of privacy in historical cell-site location information); United States v. Gordon, Crim. No. 09–153–02, 2012 WL 8499876, at *1–2 (D.D.C. Feb. 6, 2012) (same), and with longstanding doctrine that courts have applied in other contexts, see, e.g., Smith, 442 U.S. at 741– 46, 99 S.Ct. 2577, Miller, 425 U.S. at 443, 96 S.Ct. 1619. Nevertheless, in reaching this decision, I find comfort in the statement in the Supreme Court's recent majority opinion in Jones that “[a]t bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’ ” 132 S.Ct. at 950 (2012) (quoting Kyllo, 533 U.S. at 34, 121 S.Ct. 2038). Indeed, as the Supreme Court noted more than a decade before Smith, “[t]he basic purpose of th[e Fourth] Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Mun. Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (emphasis added); see alsoQuon, 130 S.Ct. at 2627 (“The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government, *42 without regard to whether the government actor is investigating crime or performing another function.” (internal quotation marks omitted)). The Fourth Amendment typically requires “a neutral and detached authority be interposed between the

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59 Communications Reg. (P&F) 825 police and the public,” and it is offended by “general Fourth Amendment claim. As such, they too have adequately

warrants” and laws that allow searches to be conducted demonstrated irreparable injury.

“indiscriminately and without regard to their connection

with [a] crime under investigation.”Berger v. New York, 388 U.S. 41, 54, 59, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). I cannot imagine a more “indiscriminate” and “arbitrary invasion” than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on “that degree of privacy” that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware “the abridgement of freedom of the people by gradual and silent encroachments by those in power,” would be aghast. 67

3. The Public Interest and Potential Injury to Other Interested Parties Also Weigh in Favor of Injunctive Relief. [35] [36] “ ‘[I]t is always in the public interest to prevent the violation of a party's constitutional rights.’ ” Am. Freedom Def. Initiative v. Wash. Metro. Area Transit Auth., 898 F.Supp.2d 73, 84 (D.D.C.2012) (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm'n, 23 F.3d 1071, 1079 (6th Cir.1994)); see also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir.2013) (same), cert. granted, ––– U.S. ––––, 134 S.Ct. 678, ––– L.Ed.2d ––––, 2013 WL 5297798 (2013); Melendres v. Arpaio, 695 F.3d 990,

67 James Madison, Speech in the Virginia Ratifying Convention on Control of the Military (June 16, 1788), in THE HISTORY OF THE VIRGINIA FEDERAL CONVENTION OF 1788, WITH SOME ACCOUNT OF EMINENT VIRGINIANS OF THAT ERA WHO WERE MEMBERS OF THE BODY (Vol.1) 130 (Hugh Blair Grigsby et al. eds., 1890) (“Since the general civilization of mankind, I believe there are more

1002 (9th Cir.2012) (same); Nat'l Fed'n of Fed. Emps. v. Carlucci, 680 F.Supp. 416 (D.D.C.1988) (“[T]he public interest lies in enjoining unconstitutional searches.”). That interest looms large in this case, given the significant privacy interests at stake and the unprecedented scope of the NSA's collection and querying efforts, which likely violate the Fourth Amendment. Thus, *43 the public interest weighs heavily in favor of granting an injunction.

instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.”).

The Government responds that the public's interest in combating terrorism is of paramount importance, see Govt.'s

Opp'n at 64–65—a proposition that I accept without question.

2. Plaintiffs Will Suffer Irreparable Harm Absent

But the Government offers no real explanation as to how

Injunctive Relief.

granting relief to these plaintiffs would be detrimental to

[33] [34] “It has long been established that the loss of that interest. Instead, the Government says that it will be

constitutional freedoms, ‘for even minimal periods of time, burdensome to comply with any order that requires the NSA

unquestionably constitutes irreparable injury.’ ” Mills v. to remove plaintiffs from its database. See id. at 65; Shea

District of Columbia, 571 F.3d 1304, 1312 (D.C.Cir.2009) Decl. ¶ 65. Of course, the public has no interest in saving

(quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. the Government from the burdens of complying with the

2673, 49 L.Ed.2d 547 (1976) (plurality opinion)). As in Constitution! Then, the Government frets that such an order

this case, the court in Mills was confronted with an alleged “could ultimately have a degrading effect on the utility of the

Fourth Amendment violation: a “Neighborhood Safety program if an injunction in this case precipitated successful

Zones” traffic checkpoint for vehicles entering a high-crime requests for such relief by other litigants.” Govt.'s Opp'n at

neighborhood in Washington, DC. Id. at 1306. After finding 65 (citing Shea Decl ¶ 65). For reasons already explained,

a strong likelihood of success on the merits, our Circuit I am not convinced at this point in the litigation that the

Court had little to say on the irreparable injury prong, instead NSA's database has ever truly served the purpose of rapidly

relying on the statement at the beginning of this paragraph identifying terrorists in time-sensitive investigations, and

that a constitutional violation, even of minimal duration, so I am certainly not convinced that the removal of two

constitutes irreparable injury. Plaintiffs in this case have also individuals from the database will “degrade” the program in

shown a strong likelihood of success on the merits of a any meaningful sense. 68 I will leave it to other judges to

decide how to handle any future litigation in their courts.

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Klayman v. Obama, 957 F.Supp.2d 1 (2013) 59 Communications Reg. (P&F) 825
68 To the extent that removing plaintiffs from the database would create a risk of “eliminating, or cutting off potential call chains,” Shea Decl. ¶ 65, the Government concedes that the odds of this happening are miniscule. See Govt.'s Opp'n at 2 (“[O]nly a tiny fraction of the collected metadata is ever reviewed....”); Shea Decl. ¶ 23 (“Only the tiny fraction of the telephony metadata records that are responsive to queries authorized under the RAS standard are extracted, reviewed, or disseminated....”).
CONCLUSION
This case is yet the latest chapter in the Judiciary's continuing challenge to balance the national security interests of the United States with the individual liberties of our citizens. The Government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance based in large part on a thirty-four year old Supreme Court precedent, the relevance of which has been eclipsed by technological advances and a cell phone-centric lifestyle heretofore inconceivable. In the months ahead, other Article III courts, no doubt, will wrestle to find the proper balance consistent with our constitutional system. But in the meantime, for all the above reasons, I will grant Larry Klayman's and Charles Strange's requests for an injunction 69 and enter an order that (1) bars the Government from collecting, as part of the NSA's Bulk Telephony Metadata Program, any telephony metadata associated with their personal Verizon accounts and (2) requires the Government to destroy any such metadata in its possession that was collected through the bulk collection program. 70
69 For reasons stated at the outset, this relief is limited to Klayman I plaintiffs Larry Klayman and Charles Strange.

I will deny Mary Ann Strange's motion and the motion in Klayman II.
70 Although it is true that granting plaintiffs the relief they request will force the Government to identify plaintiffs' phone numbers and metadata records, and then subject them to otherwise unnecessary individual scrutiny, see Shea Decl. ¶ 64, that is the only way to remedy the constitutional violations that plaintiffs are substantially likely to prove on the merits.
[37] However, in light of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will stay my order pending appeal. *44 71 In doing so, I hereby give the Government fair notice that should my ruling be upheld, this order will go into effect forthwith. Accordingly, I fully expect that during the appellate process, which will consume at least the next six months, the Government will take whatever steps necessary to prepare itself to comply with this order when, and if, it is upheld. Suffice it to say, requesting further time to comply with this order months from now will not be well received and could result in collateral sanctions.
71 See, e.g., Doe v. Gonzales, 386 F.Supp.2d 66, 83 (D.Conn.2005) (“The court finds that it is appropriate to grant a brief stay of a preliminary injunction in order to permit the Court of Appeals an opportunity to consider an application for a stay pending an expedited appeal.”); Luevano v. Horner, No. 79–0271, 1988 WL 147603, at *8 (D.D.C. June 27, 1988) (“[T]he Court will enter the injunctive relief that has been requested by plaintiffs but will, sua sponte, stay the effect of that injunction pending the outcome of the appeal in [a related case]. In this way, the interests of justice will best be served.”).
Parallel Citations
59 Communications Reg. (P&F) 825

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 Case 1:13-cv-00881 Document 1 Filed 06/12/13 Page 1 of 32

IN UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LARRY KLAYMAN, on behalf of himself and all others similarly situated, 2020 Pennsylvania Ave. NW Suite 800 Washington, DC 20006
and
MICHAEL FERRARI, on behalf of himself and all others similarly situated, Santa Clara, CA
and
CHARLES STRANGE, on behalf of himself and all others similarly situated, Philadelphia, Pennsylvania
and
MATT GARRISON, on behalf of himself and all others similarly situated, Long Beach, CA
Plaintiffs, v.
BARACK HUSSEIN OBAMA II, President of the United States 1600 Pennsylvania Ave. NW Washington, DC 20500
and
ERIC HIMPTON HOLDER, JR., Attorney General of the United States 555 Fourth St. NW Washington, DC 20530
and

Civil Action No.:

1

Case 1:13-cv-00881 Document 1 Filed 06/12/13 Page 2 of 32
KEITH B. ALEXANDER Director of the National Security Agency, 9800 Savage Rd. Fort Meade, MD 20755
and
NATIONAL SECURITY AGENCY, Director of the National Security Agency, 9800 Savage Rd. Fort Meade, MD 20755
and
THE U.S. DEPARTMENT OF JUSTICE, 950 Pennsylvania Ave. NW Washington, DC 20530 and
FACEBOOK, INC., 156 University Avenue Palo Alto, CA 94301
and
MARK ZUCKERBERG, Founder and CEO of Facebook 156 University Avenue Palo Alto, CA 94301
and
GOOGLE, 1600 Amphitheatre Parkway Mountain View, CA 94043
and
LARRY PAGE CEO of Google 1600 Amphitheatre Parkway Mountain View, CA 94043
and
2

Case 1:13-cv-00881 Document 1 Filed 06/12/13 Page 3 of 32
YOUTUBE INC./LLC, San Bruno, CA
and
SALAR KAMANGAR CEO of YouTube San Bruno, CA
and
APPLE, INC., 1 Infinite Loop Cupertino, CA 95014
and
TIMOTHY D. COOK CEO of Apple 1 Infinite Loop Cupertino, CA 95014
and
MICROSOFT CORP., One Microsoft Way Redmond, Washington 98052
and
STEVE BALLMER CEO of Microsoft One Microsoft Way Redmond, Washington 98052
and
SKYPE 2145 Hamilton Ave. San Jose, CA 95125
and
TONY BATES CEO of Skype 2145 Hamilton Ave.
3

Case 1:13-cv-00881 Document 1 Filed 06/12/13 Page 4 of 32
San Jose, CA 95125
and
AOL 560 Broadway, Suite 308 New York, NY 20012
and
TIM ARMSTRONG CEO of AOL 560 Broadway, Suite 308 New York, NY 20012
and
YAHOO! 701 1st Avenue, Sunnyvale, CA 94089
and
MARISSA MEYER CEO of Yahoo! 701 1st Avenue, Sunnyvale, CA 94089
and
PALTALK 500 North Broadway, Suite 259 Jericho, NY 11753
and
JASON KATZ CEO of PalTalk 500 North Broadway, Suite 259 Jericho, NY 11753
and
AT&T 1209 Orange Street Wilmington, Delaware 19801
4

Case 1:13-cv-00881 Document 1 Filed 06/12/13 Page 5 of 32
and RANDALL L. STEPHENSON Chairman and CEO of AT&T 1209 Orange Street Wilmington, Delaware 19801 and SPRINT COMMUNICATIONS COMPANY 6200 Sprint Parkway Overland Park, KS 66251 and DANIEL R. HEESE CEO of Sprint 6200 Sprint Parkway Overland Park, KS 66251
Defendants.
COMPLAINT Plaintiff, Larry Klayman, (“Klayman”), a former U.S. Department of Justice prosecutor, Plaintiff Michael Ferrari, (“Ferrari”), Plaintiff Charles Strange, (“Strange”), and Plaintiff Matt Garrison, (“Garrison”), (collectively “Plaintiffs”), bring this action on their own behalf and on behalf of a class of persons defined below. Plaintiffs hereby sue Barack Hussein Obama, Eric H. Holder (“Holder”), Keith B. Alexander (“Alexander”), the U.S. Department of Justice (“DOJ”), the National Security Agency (“NSA”), Mark Zuckerberg (“Zuckerberg”), Facebook, Inc., (“Facebook”), Google, Inc. (“Google”), Larry Page, (“Page”), YouTube, Inc./LLC (“YouTube”), Salar Kamangar (“Kamangar”), Apple, Inc., (“Apple”), Timothy D. Cook, (“Cook”), Microsoft Corp., (“Microsoft”), Steve Ballmer (“Ballmer”), Skype, Tony Bates (“Bates”), AOL, Tim Armstrong, (“Armstrong”), Yahoo!, Inc., (“Yahoo!”), Marissa Meyer, (“Meyer”), PalTalk, Jason Katz (“Katz”), AT&T, Randall L. Stephenson (“Stephenson”), Sprint Communications
5

Case 1:13-cv-00881 Document 1 Filed 06/12/13 Page 6 of 32
Company, (“Sprint”), and Daniel R. Heese (“Heese”), (collectively “Defendants”), in their personal and official capacities, for violating Plaintiffs’ constitutional rights, Plaintiffs’ reasonable expectation of privacy, free speech and association, right to be free of unreasonable searches and seizures, and due process rights, as well as certain common law claims, for directly and proximately causing Plaintiffs mental and physical pain and suffering and harm as a result of the below pled illegal and criminal acts. Plaintiffs and members of the class pled below allege as follows:
INTRODUCTION 1. Plaintiffs bring this action on behalf of themselves and all other similarly situated
consumers, users, and U.S. citizens who are subscribers, users, customers, and otherwise avail themselves to Facebook, Yahoo, Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT&T, and/or Apple. 2. This is an action for monetary, declaratory, equitable, and injunctive relief as a result of the U.S. Government’s illegal and unconstitutional use of an electronic surveillance program in violation of the First, Fourth, and Fifth Amendments to the U.S. Constitution. This action also involves violations of privacy, including intrusion upon seclusion, freedom of expression and association, due process and other illegal acts. This is also an action for divulgence of communication records in violation of 18 U.S.C. §2702(a)(1), (2), and (3). In addition, this lawsuit challenges the government’s expansive acquisition of Plaintiffs’ telephone records under Section 215 of the Patriot Act, 50 U.S.C. §1860 and the legality of Defendants’ participation and conduct in a secret and illegal government scheme to intercept and analyze vast quantities of communications from the Internet and electronic service providers.
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3. The NSA’s classified program, referred to as “PRISM,” is an internal government computer system used to manage domestic and foreign intelligence collected from the internet and other electronic service provides. Government officials have indicated this program has been in place for seven years and that it collects records of all telephone communications of every customer of a major phone company including Verizon, AT&T, and Sprint.
4. The government has acknowledged that it is collecting “metadata” about every phone call made or received by residents of the U.S., and these records provide intricate details, including the identity of the individual who was spoken to, the length of time of the conversation, and where the conversation took place. Moreover, it gives the government a comprehensive record of an individual’s associations, speech, and public movements while revealing personal details about an individual’s familial, political, professional, religious, and intimate associations.
5. For example, recently, the government ordered access to Verizon’s electronic copies of the following tangible things: all call detail records or "telephony metadata" created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls. Such telephony metadata includes comprehensive communications routing information, including but not limited to session identifying information (e.g. originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.) trunk identifier, telephone calling card numbers, and time and duration of call. (As a result of the blatant intrusion and violation of privacy
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rights, in a related case, Plaintiffs Klayman and Strange filed a Class Action Complaint against Verizon, Civil Action No.: 1:13-cv-00851) 6. Prior to this disclosure and revelation, Plaintiffs and class members had no notice and no reasonable opportunity to discover the existence of the surveillance program or the violation of the laws alleged herein. 7. The NSA and the Federal Bureau of Investigation continue to siphon personal data from the main computer servers of reportedly major U.S. Internet firms, including Microsoft (Hotmail, etc.), Google, Yahoo!, Facebook, PalTalk, YouTube, Skype, AOL, and Apple. The information the NSA receives in the surveillance and collection of stored communications include, E-mails, chat (video/voice), videos, photos, stored data, VoIP, file transfers, video conferencing, notification of target activity (i.e. logins, etc.), online social networking details, and other special requests. 8. Defendants maintain domestic telecommunications facilities over which hundreds of millions of Americans’ telephone communications pass every day. Defendants also include internet service providers and popular website founders, who provide internet, email, social networking, and the like to millions of Americans, who use these services as a primary means of communication. Defendants also manage some of the largest databases in the world containing records of most or all communications made through their myriad telecommunications services and operations. 9. Defendants have opened its key telecommunication databases to direct access by the NSA and/or other government agencies, intercepting and disclosing to the government the contents of its customers as well as detailed communication records over three hundred million of its customers, including Plaintiffs and class members. On information
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and belief, Defendants continue to assist the government in its secret surveillance of over three hundred million of ordinary Americans citizens just on a daily basis. 10. Such broad and intrusive PRISM collections directly violate the U.S. Constitution and also federal laws, including, but not limited to, the outrageous breach of privacy, freedom of speech, freedom of association and the due process rights of American citizens. Plaintiffs and members of the class are suing for damages, declaratory, equitable, and injunctive relief to stop this illegal conduct and hold Defendants, individually and collectively, responsible for their illegal collaboration in the surveillance program, which has violated the law and damaged the fundamental freedoms of American citizens.
THE PARTIES 11. Plaintiff Larry Klayman is an individual and an attorney who is a subscriber and user of
Verizon Wireless, Apple, Microsoft, YouTube, Yahoo, Google, Facebook, AT&T, and Skype at all material times. Klayman routinely communicates with members of the public as well as journalists and associates by telephonic communications and electronic messages through Facebook, Google, Apple, and Skype. Klayman’s communications, particularly as an attorney, are sensitive and often privileged. Plaintiff Larry Klayman resided in the District of Columbia (“D.C”) for over twenty years and continues to conduct business in Washington, D.C. as the Chairman and General Counsel of Freedom Watch and otherwise. Plaintiff Larry Klayman is a public advocate and has filed lawsuits against President Obama and has been highly critical of the Obama administration as a whole. On information and belief, Defendants have accessed the records pertaining to Plaintiff Larry Klayman.
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12. Plaintiff Strange is an individual and the father of Michael Strange, a member of Navy SEAL Team VI who was killed when the helicopter he was in was attacked and shot down by terrorist Taliban jihadists in Afghanistan on August 6, 2011. Plaintiff Strange is a consumer, subscriber, and user of Google/Gmail, Yahoo, Facebook, AOL, and YouTube. On information and belief, Defendants have accessed Plaintiff Strange’s records particularly since these Plaintiffs have been vocal about their criticism of President Obama as commander-in-chief, his administration, and the U.S. military regarding the circumstances surrounding the shoot down of their son’s helicopter in Afghanistan, which resulted in the death of his son and other Navy Seal Team VI members and special operation forces. Plaintiff Strange has substantial connections with Washington, D.C., as he holds press conferences in Washington, D.C. and lobbies in Washington, D.C. as an advocate for his son and to obtain justice for him, as well as to change the policies and orders of President Obama and the U.S. military’s acts and practices, which contributed to his son’s death.
13. Plaintiff Ferrari is an individual who is a subscriber, consumer, and user of Sprint, Google/Gmail, Yahoo!, and Apple. As a prominent private investigator, Ferrari regularly communicates, both telephonically and electronically, with associates and other members of the public, regarding various matters including work-related discussions. Additionally, Ferrari’s emails contain private details, discussions, and communications. Similarly, Ferrari’s Apple product may contain confidential documents and information.
14. Plaintiff Garrison is an individual who is a consumer and user of Facebook, Google, YouTube, and Microsoft products. As also a prominent private investigator, Plaintiff Garrison is required to use his computer, which contains Microsoft programming, for
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personal matters as well as work related matters. Plaintiff stores various documents and records on his computer, which are private records. 15. Defendant Barack Hussein Obama ("Obama") is the President of the United States and currently resides in Washington, D.C. 16. Defendant Eric Holder ("Holder") is the Attorney General of the United States and conducts his duties as the Attorney General in Washington, D.C. 17. The National Security Agency ("NSA") is an intelligence agency of the U.S. Department of Defense and conduct its duties in Washington, D.C. 18. Defendant Keith B. Alexander ("Alexander") is the Director of the National Security Agency. He is also the commander of the U.S. Cyber Command, where he is responsible for planning, coordinating, and conducting operations of computer networks. He is also at the command for U.S. National Security Information system protection responsibilities. He conducts his duties for the National Security Agency in Washington, D.C. 19. Defendant The U.S. Department of Justice ("DOJ") is a U.S. federal executive department responsible for the enforcement of the law and administration of justice, and its headquarters is located in Washington, D.C., where it conducts most of its activities and business. 20. Defendant Mark Zuckerberg (“Zuckerberg”) is an individual who at all times mentioned herein resides in California. Zuckerberg is the founder and CEO of Facebook, Inc. 21. Defendant Facebook, Inc., (“Facebook”) is a New York Corporation who, at all material times has corporate headquarters located at 156 University Avenue, Palo Alto, CA 94301 and engages in social networking via the internet. Defendants Zuckerberg and Facebook do business in D.C. and Facebook is widely viewed and read there.
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22. Defendant Google (“Google”) is a Delaware Corporation with its principal place of business at 1600 Amphitheatre Parkway, Mountain View, CA 94043. Google is a technology company that provides free web products to consumers, including its widely used email service, “Gmail,” which allows consumers to send and receive emails, chat with other consumers, and store email messages, contact lists, calendar entries, and other information on Google’s servers. Google also offers consumers Google+, a social network where consumers can set up a profile and share text, links, photos and videos through a variety of Google products, such as Google Reader, Google, Blogger, and Picasa. In addition, Google provides a variety of other products, including its well-known globally utilized search engine, YouTube, Google Docs (where consumers can create and edit documents online); and Google Maps (where consumers can view satellite images of locations all over the world, plan routes, and which has a GPS-like service that tracks the consumer’s location).
23. Different Google products log and keep track of different information about consumers and users, including a consumer’s and user’s first and last name, home or other physical address, the consumer’s current, physical location, the consumer’s email address or other online contact information, the consumer’s telephone number and list of contacts; and the consumer’s search history from Google’s search engine.
24. Defendant Larry Page, (“Page”), is the cofounder and CEO of Google. 25. Defendant YouTube, Inc./LLC, (“YouTube”), is a Delaware corporation with its
principal place of business in San Bruno, CA. YouTube is a wholly owned and controlled subsidiary of Google, who acquired YouTube in 2006 for $1.65 billion. YouTube operates a website, located at www.youtube.com, and is one of the most prominent,
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popular, and widely used websites on the Internet. It allows consumers to stream and post videos of interest to them. 26. Defendant Salar Kamangar, (“Kamangar”), is the CEO of YouTube. 27. Defendant Apple, Inc., (“Apple”) is a California corporation having its principal place of business at 1 Infinite Loop, Cupertino, CA 95014. Apple is a leading designer and manufacturer of popular mobile communication devises, personal computers, and portable digital media players. Apple products include, but are not limit to, the iPhone, iPod, iPad computer tablet, and unique computers. 28. Defendant Timothy D. Cook (“Cook)” is the CEO of Apple. 29. Defendant Microsoft Corporation, (“Microsoft”) is a corporation organized and existing under the laws of the State of Washington, with its principal place of business located at One Microsoft Way, Redmond, Washington 98052. Microsoft sells and licenses operating systems for PC’s throughout the United States and the world. 30. Defendant Steve Ballmer, (“Ballmer”) is the CEO of Microsoft. 31. Defendant Skype is a Delaware corporation having an address and place of business at 2145 Hamilton Avenue, San Jose, CA 95125. Skype is engaged in the business of providing Voice Over Internet Protocol (“VoIP”) peer-to-peer communication products and services and other related products and services to users located around the world. As part of Skype’s overall business, Skype provides its user with the means to make free, unlimited global telephone calls to other Skype users over the internet using peer-to-peer software. 32. Defendant Tony Bates, (“Bates”) is the CEO of Skype.
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33. Defendant AOL (“AOL”) is a corporation organized and existing under the laws of the state of Delaware with its principal place of business in the County of New York in the State of New York at 560 Broadway, Suite 308, New York, NY 20012. AOL is a computer on-line, interactive information, communication, and transaction service.
34. Defendant Tim Armstrong (“Armstrong”) is the CEO of AOL. 35. Defendant Yahoo! (“Yahoo!”), is a corporation organized under the laws of Delaware,
with its principal place of business at 701 1st Avenue, Sunnyvale, CA 94089. Yahoo! is a global internet communication and media company that offers a comprehensive branded network of services to users worldwide. Yahoo! Provides online products such as news, finance, social networking, search engine, e-mail, instant messaging, and shopping to millions of daily users. 36. Defendant Marissa Meyer (“Meyer”) is the CEO of Yahoo!. 37. Defendant PalTalk, (“PalTalk”) is a Deleware corporation with its principal place of business at 500 North Broadway, Suite 259 Jericho, NY 11753. PalTalk provides a technology that allows users to participate in multiplayer games over the internet, and allows users to communicate through a group messaging server as well as establishing groups for online game play. 38. Defendant Jason Katz (“Katz”) is the CEO of PalTalk. 39. Defendant AT&T (“AT&T”), is a Delaware corporation having its principal place of business at 1209 Orange Street, Wilmington, Delaware. AT&T provides local and longdistance telecommunication services to businesses and residential customers, in addition to providing DSL services and wireless communication services throughout the United States to its customers throughout the United States.
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40. Defendant Randall L. Stephenson, (“Stephenson”) is the Chairman and CEO of AT&T. 41. Defendant Sprint Communications Company, (“Sprint”) is organized and exists under the
laws of the State of Delaware, with its principal place of business at 6200 Sprint Parkway, Overland Park, KS 66251. Sprint is a global communications company that provides telecommunications services to business and residential customers in more than 70 companies. Sprint also provides internet services, and its internet network has a substantial customer base of large U.S. and international service providers. 42. Defendant Daniel R. Hesse (“Hesse”) is the CEO for Sprint Nextel. 43. All of these Defendants, each and every one of them, jointly and severally, acted in concert to violate the constitutional privacy rights, free speech, freedom of association, due process and other legal rights of Plaintiffs and all other American citizens similarly situated who are members of the classes pled herein.
JURISDICTION AND VENUE 44. This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §1331
(Federal Question Jurisdiction). 45. Jurisdiction and venue are proper pursuant to 28 U.S.C. §1331, which states in pertinent
part, “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” At issue here is the unconstitutional violation of Plaintiffs' rights under the First, Fourth, and Fifth Amendments to the U.S. Constitution. 46. Supplemental jurisdiction is also proper under 28 U.S.C. §1367, which states in pertinent part, " . . .in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related
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to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the U.S. Constitution. 47. Plaintiffs are informed, believe and thereon allege that, based on the places of business of the Defendants and/or on the national reach of Defendants, a substantial part of the events giving rise to the claims herein alleged occurred in this district and that Defendants and/or agents of Defendants may be found in this district. In addition, Defendants’ actions caused injury to Plaintiffs in this District, which they engaged in international communications.
STATEMENT OF FACTS 48. The NSA began a classified surveillance program, known as “PRISM,” to intercept the
telephone communications of persons inside the United States, a program that continues to this date. 49. On June 5, 2013, The Guardian published an article entitled, "NSA collecting phone records of millions of Verizon customers daily. Exclusive: Top secret court order requiring Verizon to hand over all call data shows scale of domestic surveillance under Obama." The U.S. government, on the orders authorization of the President, the Attorney General, the DOJ and the NSA, has obtained a top secret court order that directs Verizon to turn over the telephone records of over one hundred million Americans to the NSA on an ongoing daily basis. 50. Based on knowledge and belief, this Verizon Order is the broadest surveillance order to ever have been issued; it requires no level of reasonable suspicion or probable cause and
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incredibly applies to all Verizon subscribers and users anywhere in the United States and overseas. 51. Since June 5, 2013, Defendants Obama, Holder, Alexander, McAdan, Vinson, Verizon, the DOJ, and the NSA have been widely condemned among American citizens regarding their failure to uphold the U.S. Constitution and intentionally violating the fundamental rights of Plaintiffs, members of the class, and over one hundred million of other Americans. As just one example, Senator Rand Paul called the surveillance of Verizon phone records "an astounding assault on the constitution," and has called for a class action lawsuit such as this one. 52. Under Defendant Obama's administration, the communication records of over one hundred million of U.S. citizens are being collected indiscriminately and in bulk regardless of whether there is reasonable suspicion or any “probable cause” of any wrongdoing. 53. Such schemes by the Defendants in concert with the government have subjected untold number of innocent people to the constant surveillance of government agents. As Jameel Jaffeer, the ACLU’s deputy legal director, stated, “It is beyond Orwellian, and it provides further evidence of the extent to which basic democratic rights are being surrendered in secret to the demands of unaccountable intelligence agencies.” 54. To date, Defendants have not issued substantive and meaningful explanations to the American people describing what has occurred. To the contrary, criminal charges are reportedly being pursued by Defendants Obama, Holder, the DOJ, and the NSA against the leaker of this plot against American citizens in a further effort suppress, obstruct justice, and to keep Defendants’ illegal actions as secret as possible.
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55. Rather, on information and belief, the NSA, under the authorization of President Obama, continues to engage in a systematic program of warrantless eavesdropping upon phone and email communications of hundreds of millions of individuals, including American citizens and permanent legal residents, both within and outside of the U.S. The NSA Surveillance program collects not only the identities of persons communications with the targets of surveillance, but also the contents of those communications.
56. Such intrusive and illegal surveillance have directly impacted each and every Plaintiff. The revelation that the government has been carrying on widespread warrantless interception of electronic communications has impaired Plaintiffs’ ability to communicate via telephone, email, and otherwise on the internet, out of fear that their confidential, private, and often privileged communications are being and will be overheard by the NSA’s surveillance program.
57. The risk and knowledge that Plaintiffs’ telephonic, and internet, electronic conversations may be overheard, undoubtedly chills speech, in violation of Plaintiffs’ First Amendment rights.
CLASS ACTION ALLEGATIONS 58. Pursuant to Federal Rules of Civil Procedure, Rule 23(a) and Rule 23(b), Plaintiffs bring
this action on behalf of themselves and a nationwide class (the “Nationwide Class”) of similarly situated persons defined as: All American citizens in the United States and overseas who are current subscribers, users, or customers of the services and/or products of Facebook, Google, Yahoo, YouTube, Skype, AOL, Sprint, AT&T, Apple, Microsoft, and PalTalk.
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59. Plaintiffs also bring this action on behalf of themselves and other American citizens who, in addition to being members of the Nationwide Class, had their telephone calls and/or emails and/or any other communications made or received through Facebook, Google, Yahoo, YouTube, Skype, AOL, Sprint, AT&T, Apple, Microsoft and/or PalTalk actually recorded and/or listened into by or on behalf of Defendants (the “Subclass”).
60. The Nationwide Class and Subclass seek certification of claims for declaratory relief, injunctive relief and damages pursuant to 18 U.S.C. §2707.
61. Excluded from the Nationwide Class and the Subclass are the officers, directors, and employees of Defendants, their legal representatives, heirs, successors, and assigns of Defendants, and all judges who may ever adjudicate this case.
62. This action is brought as a class action and may be so maintained pursuant to the provisions of the Federal Rules of Civil Procedure, Rule 23. Plaintiffs reserve the right to modify the Nationwide Class and Subclass definitions and the class period based on the results of discovery.
63. Numerosity of the Nationwide Class: The National Class and the Subclass (collectively referred to below as the “Class”) are so numerous that the individual joinder of all members, in this or any action is impracticable. The exact number or identification of Class members is presently unknown to Plaintiffs, but it is believed that the Class numbers over a hundred million citizens. The identity of Class members and their addresses may be ascertained from Defendants’ records. Class members may be informed of the pendency of this action by a combination of direct mail and public notice, or other means, including through records possessed by Defendants.
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64. Commonality: There is a well-defined community of interest in the questions of law and fact involved affecting the members of the Class. These common legal and factual questions include: a. Whether Defendants have divulged subscriber information or other records pertaining to Class members in violation of 18 U.S.C. §2702(a)(3), or are currently doing so; b. Whether Plaintiffs and Class members are entitled to recover compensatory, statutory and punitive damages, whether as a result of Defendants’ illegal conduct, and/or otherwise; c. Whether Plaintiffs and Class members are entitled to declaratory, injunctive and/or equitable relief; and d. Whether Plaintiffs and Class members are entitled to an award of reasonable attorneys’ fees, pre-judgment interest, and costs of this suit.
65. Typicality: Plaintiffs’ claims are typical of the claims of the members of the Class because Plaintiffs and the Class members are or were a subscriber, consumer, or user of Defendants’ products and/or services and have communicated, either telephonically or electronically, through Defendants’ product(s). Plaintiffs and all members of the Class have similarly suffered harm arising from Defendants’ violations of law, as alleged herein.
66. Adequacy: Plaintiffs are adequate representatives of the Class because their interests do not conflict with the interests of the members of the Class they seek to represent. Plaintiffs intend to prosecute this action vigorously. Plaintiffs will fairly and adequately protect the interest of the members of the Class.
67. This suit may also be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) because Plaintiffs and the Class seek declaratory and injunctive relief, and all of the above factors of numerosity, common questions of fact and law, typicality and adequacy are present. Defendants have acted on grounds generally applicable to
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Plaintiffs and the Class as a whole, thereby making declaratory and/or injunctive relief proper. 68. Predominance and Superiority: This suit may also be maintained as a class action under Federal Rule of Civil Procedure 23(b)(3) because questions of law and fact common to the Class predominate over the questions affecting only individual members of the Class and a class action is superior to other available means for the fair and efficient adjudication of this dispute. The damages suffered by each individual Class member, depending on the circumstances, may be relatively small or modest, especially given the burden and expense of individual prosecution of the complex and extensive litigation necessitated by Defendants’ conduct. Furthermore, it would be virtually impossible for the Class members, on an individual basis, to obtain effective redress for the wrongs done to them. Moreover, even if Class members themselves could afford such individual litigation, the court system could not. Individual litigation presents a potential for inconsistent or contradictory judgments. Individualized litigation increases the delay and expenses to all parties and the court system presented by the complex legal issues of the case. By contrast, the class action device presents far fewer management difficulties and provides the benefits of a single adjudication, economy of scale, and comprehensive supervision by a single court.
FIRST CLAIM FOR RELIEF (Fifth Amendment Violation – Defendants Obama, Holder, Alexander, DOJ, and NSA)
(Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics) 69. Plaintiffs and the members of the Class repeat and reallege all of the previous allegations
in paragraphs 1 through 68 of this Complaint with the same force and affect, as if fully set forth herein again at length.
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70. Plaintiffs and the members of the Class enjoy a liberty interest in their personal security and in being free from the Defendants’ and the government's use of unnecessary and excessive force or intrusion against his person.
71. Plaintiffs and the members of the Class enjoy a liberty of not being deprived of life without due process of law, as guaranteed by the Fifth Amendment to the U.S. Constitution.
72. Defendants Obama, Holder, Alexander, the DOJ, and the NSA violated Plaintiffs' and the Class members’ constitutional rights when they authorized broad and intrusive collections of records of individuals through the PRISM surveillance program, thereby giving the government and themselves unlimited authority to obtain telephone and internet data for a specified amount of time.
73. By reason of the wrongful conduct of the Defendants, each and every one of them, jointly and severally, Plaintiffs and members of the Class suffered and continue to suffer from severe emotional distress and physical harm, pecuniary and economic damage, loss of services, and loss of society accordingly.
74. These violations are compensable under Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). As a direct and proximate result of the intentional and willful actions of Defendants Obama, Holder, Alexander, DOJ and NSA, Plaintiffs and members of the Class demand judgment be entered against Defendants Obama, Holder, Alexander, DOJ and NSA, each and every one of them, jointly and severally, including an award of compensatory and actual damages, punitive damages, equitable relief, reasonable attorneys fees, pre-judgment interest, post-interest and costs, and an award in an amount in excess of $20 billion U.S. dollars, and such other relief as
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the Court may deem just and proper. Plaintiffs and the members of the Class demand declaratory and injunctive and other equitable relief against all of Defendants as set forth below.
SECOND CLAIM FOR RELIEF (First Amendment Violation - Defendants Obama, Holder, Alexander, DOJ, and NSA)
(Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics) 75. Plaintiffs and members of the Class repeat and reallege all of the previous allegations in
paragraphs 1 through 74 of this Complaint with the same force and affect, as if fully set forth herein again at length. 76. Defendants Obama, Holder, Alexander, DOJ and NSA, acting in their official capacity and personally, abridged and violated Plaintiffs’ and Class members’ First Amendment right of freedom of speech and association by significantly minimizing and chilling Plaintiffs’ and Class members’ freedom of expression and association. 77. Defendants Obama, Holder, Alexander, DOJ and NSA’s acts chill, if not “kill,” speech by instilling in Plaintiffs, members of the Class, and over a hundred million of Americans the fear that their personal and business conversations with other U.S. citizens and foreigners are in effect tapped and illegally surveyed. 78. In addition, Defendants Obama, Holder, Alexander, DOJ and NSA, acting in their official capacity and personally, violated Plaintiffs’ and Class members’ right of freedom of association by making them and others weary and fearful of contacting other persons and entities via cell phone out of fear of the misuse of government power and retaliation against these persons and entities who challenge the misuse of government power.
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79. By reason of the wrongful conduct of these Defendants, Plaintiffs and members of the Class suffered and continue to suffer from severe emotional distress and physical harm, pecuniary and economic damage, loss of services, and loss of society accordingly.
80. These violations are compensable under Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
81. As a direct and proximate result of the intentional and willful actions of Defendants Obama, Holder, Alexander, DOJ and NSA, Plaintiffs and members of the Class demand that judgment be entered against Defendants Obama, Holder, Alexander, DOJ and NSA, each and every one of them, jointly and severally, including an award of compensatory and actual damages, punitive damages, equitable relief, reasonable attorneys fees, prejudgment interest, post-interest and costs, and an award in an amount in excess of $20 billion U.S. dollars and such other relief as the Court may deem just and proper.
THIRD CLAIM FOR RELIEF (Fourth Amendment Violation - Defendants Obama, Holder, Alexander, DOJ, and NSA)
(Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics) 82. Plaintiffs and members of the Class repeat and reallege all of the previous allegations in
paragraphs 1 through 81 of this Complaint with the same force and affect, as if fully set forth herein again at length. 83. The Fourth Amendment provides in pertinent part that people have a right to be secure in their persons against unreasonable searches and seizures, that warrants shall not be issued but upon probable cause, and that the place of search must be described with particularity. 84. Defendants Obama, Holder, Alexander, DOJ and NSA, acting in their official capacities and personally, violated the Fourth Amendment to the U.S. Constitution when they
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unreasonably searched and seized and continue to search Plaintiffs’ and Class members’ phone records and electronic communications without reasonable suspicion or probable cause. 85. Defendants Obama, Holder, Alexander, DOJ and NSA, acting in their official capacity and personally, violated the Fourth Amendment to the U.S. Constitution by not describing with particularity the place to be searched or the person or things to be seized. 86. In fact, the blanket and vastly overbroad surveillance program by the NSA, acting on behalf of the federal government and therefore Defendant Obama, as he is the chief executive of the federal government, as well as the other Defendants, does not state with any particularity who and what may be searched. 87. The collection and production of the phone and internet records allows Defendant NSA to build easily and indiscriminately a comprehensive picture and profile of any individual contacted, how and when, and possibly from where, retrospectively and into the future. 88. By reason of the wrongful conduct of Obama, Holder, Alexander, DOJ and NSA, Plaintiffs and members of the Class suffered and continue to suffer from severe emotional distress and physical harm, pecuniary and economic damage, loss of services, and loss of society accordingly. 89. These violations are compensable under Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). As a direct and proximate result of the intentional and willful actions of Defendants Obama, Holder, Alexander, DOJ and NSA, Plaintiffs and members of the Class demand judgment be entered against Defendants Obama, Holder, Alexander, DOJ and NSA, each and every one of them, jointly and severally, including an award of compensatory and actual damages, punitive damages,
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equitable relief, reasonable attorneys fees, pre-judgment interest, post-interest and costs, and an award in an amount in excess of $20 billion U.S. dollars and such other relief as the Court may deem just and proper.
FOURTH CLAIM FOR RELIEF (Intentional Infliction of Emotional Distress - Each and Every Defendant) 90. Plaintiffs and members of the Class repeat and reallege all of the previous allegations in paragraphs 1 through 89 of this Complaint with the same force and affect, as if fully set forth herein again at length. 91. Defendants’ willful acts constitute outrageous conduct insofar as they violated Plaintiffs’ and Class members’ basic democratic rights, constitutional rights, and exposed them to beyond an "Orwellian regime of totalitarianism." Plaintiffs’ and Class members’ rights are being surrendered in secret to the demands of unaccountable intelligence and other government agencies, as well as all of the Defendants. 92. Defendants intended to cause Plaintiffs and members of the Class emotional distress and physical harm and acted in reckless disregard causing Plaintiffs and members of the Class emotional distress by committing these acts. The only purpose of this outrageous and illegal conduct is to intimidate American citizens and keep them from challenging a tyrannical administration and government presently controlled by the Defendants, a government which seeks to control virtually every aspect of Plaintiffs, members of the Class, and other American's lives, to further its own, and Defendants "agendas." 93. Defendants Obama, Holder, and Alexander were agents of the United States and acted personally when they committed these acts.
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94. As a direct and proximate result of Defendants’ acts, Plaintiffs and members of the Class suffered and Plaintiffs and members of the Class continue to suffer mental anguish, and severe emotional distress and physical harm.
95. By reason of the wrongful conduct of Defendants, Plaintiffs and members of the Class suffered and continue to suffer from severe emotional distress and physical harm, pecuniary and economic damage, loss of services, and loss of society accordingly.
96. Plaintiffs and members of the Class demand that judgment be entered against Defendants, each and every one of them, jointly and severally, including an award of compensatory and actual damages, punitive damages, equitable relief, reasonable attorneys fees, prejudgment interest, post-interest, costs, and an award in an amount in excess of $20 billion U.S. dollars and such other relief as the Court may deem just and proper.
FIFTH CLAIM FOR RELIEF (Intrusion Upon Seclusion - Each and Every Defendant) 97. Plaintiffs and members of the Class repeat and reallege all of the previous allegations in paragraphs 1 through 96 of this Complaint with the same force and effect, as if fully set forth herein again at length. 98. Defendants intentionally intruded upon the solitude and seclusion of Plaintiffs and members of the Class in their private affairs and concerns in a highly offensive way, and are liable for the invasion of Plaintiffs’ and Class members’ privacy. 99. Defendants intruded upon the seclusion of Plaintiffs and members of the Class when they unreasonably and without reasonable suspicion or probable cause obtained access to Plaintiffs’ and Class members’ phone and internet records including but not limited to their location data, call duration, unique identifiers, and the time and duration of his calls,
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and on information and belief, listened into and recorded calls and intercepted and reviewed Plaintiffs’ internet records. Defendants’ acts are highly offensive to a reasonable person. Therefore, Defendants are liable for their intrusion. 100. By reason of the wrongful conduct of Defendants, Plaintiffs and members of the Class suffered and continue to suffer from severe emotional distress and physical harm, pecuniary and economic damage, loss of services, and loss of society accordingly. Plaintiffs, and other members of the Class, demand that judgment be entered against Defendants, each and every one of them, jointly and severally, for violating their constitutional rights, subjecting them to unreasonable searches and seizures, and on intrusion upon seclusion, including an award of compensatory and actual damages, punitive damages, equitable relief, reasonable attorneys fees, pre-judgment interest, postinterest, costs, and an award in an amount in excess of $20 billion U.S. dollars and such other relief as the Court may deem just and proper.
SIXTH CLAIM FOR RELIEF (Divulgence of Communication Records in Violation of 18 U.S.C. §§2702(a)(1) and/or (a)(2) – Each and Every Defendant) 101. Plaintiffs and members of the Class repeat and reallege all of the previous allegations in paragraphs 1 through 100 of this Complaint with the same force and effect, as if fully set forth herein again at length. 102. In relevant part, 18 U.S.C. §2702 provides that: “(a) Prohibitions. – Exception as provided in subsection (b) – (1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and (2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service – (A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a
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subscriber or customer of such service; (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communication for purposes of providing any services other than storage or computer processing…” 103. On information and belief, Defendants knowingly or intentionally divulged to one or more persons or entities the contents of Plaintiffs’ and Class members’ records. 104. Communication while in electronic storage by Defendants’ electronic communication service and/or while carried or maintained by Defendants’ remote computing service, in violation of 18 U.S.C. §§2702(a)(1) and/or (a)(2). 105. Defendants did not notify Plaintiffs or Class members of the divulgence of their communications, nor did Plaintiffs or Class members consent to such. 106. On information and belief, Defendants are now engaging in and will continue to engage in the above-described divulgence of Plaintiffs’ and Class members’ communications while in electronic storage by Defendants’ electronic communication service(s), and/or while carried or maintained by Defendants’ remote computing service(s), and that likelihood represents a credible threat of immediate future harm. Plaintiffs and Class members additionally seek a declaration pursuant to 28 U.S.C. §2201 that Defendants’ action violated 18 U.S.C. §2702, and seek reasonable attorneys’ fees pursuant to 28 U.S.C. §2202. 107. Plaintiffs and Class members have been and are aggrieved by Defendants’ abovedescribed knowing or intentional divulgence of records or other information pertaining to Plaintiffs and Class members. 108. Pursuant to 18 U.S.C. §2707, which provides a civil action for any person aggrieved by knowing or intentional violation of 18 U.S.C. §2702, Plaintiffs and Class members seek such preliminary and other equitable or declaratory relief as may be appropriate;
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monetary damages for each aggrieved Plaintiffs or Class member; punitive damages as the Court considers just; and reasonable attorneys’ fees and other litigation costs reasonably incurred.
SEVENTH CLAIM FOR RELIEF (Divulgence of Communication Records in Violation of 18 U.S.C. §§2702(a)(1) and/or (a)(2) –Each and Every Defendant 109. Plaintiffs and members of the Class repeat and reallege all of the previous allegations in paragraphs 1 through 108 of this Complaint with the same force and effect, as if fully set forth herein again at length. 110. In relevant part, 18 U.S.C. §2702 provides that: “(a) Prohibitions. – Exception as provided in subsection (b) – (3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2) to any governmental entity. 111. On information and belief, Defendants, providers of remote computing service and electronic communication services to the public, knowingly or intentionally divulged records or other information pertaining to Plaintiffs and Class members to a governmental entity in violation of 18 U.S.C. §2702(a)(3). 112. On information and belief, Defendants knowingly or intentionally divulged to one or more persons or entities the contents of Plaintiffs’ and Class members’ records. 113. On information and belief, Defendants are now engaging in and will continue to engage in the above-described knowing or intentional divulgence of Plaintiffs’ and Class members’ communications while in electronic storage by Defendant Verizon’s electronic communication service(s), and/or while carried or maintained by Defendant Verizon’s remote computing service(s), and that likelihood represents a credible threat of immediate
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future harm. Plaintiffs and Class members additionally seek a declaration pursuant to 28 U.S.C. §2201 that Defendants’ action violated 18 U.S.C. §2702, and seek reasonable attorneys’ fees pursuant to 28 U.S.C. §2202. 114. Plaintiffs and Class members have been and are aggrieved by Defendants’ abovedescribed knowing or intentional divulgence of records or other information pertaining to Plaintiffs and Class members. 115. Pursuant to 18 U.S.C. §2707, which provides a civil action for any person aggrieved by knowing or intentional violation of 18 U.S.C. §2702, Plaintiffs and Class members seek such preliminary and other equitable or declaratory relief as may be appropriate; monetary damages for each aggrieved Plaintiffs or Class members; punitive damages as the Court considers just; and reasonable attorneys’ fees and other litigation costs reasonably incurred.
PRAYER FOR RELIEF 116. Plaintiffs and Class members demand that judgment be entered against Defendants, each
and every one of them, jointly and severally, for compensatory and actual damages because of Defendants’ illegal actions causing this demonstrable injury to Plaintiffs and Class members, punitive damages because of Defendants’ callous, reckless indifference and malicious acts, and attorneys fees and costs in an amount in excess of $20 billion U.S. dollars and such other relief the Court may deem just and proper. 117. Plaintiffs and Class members demand declaratory, equitable and injunctive relief for their injuries in the following ways: (1) a cease and desist order to prohibit this type of illegal and criminal activity against Plaintiffs, Class members, and other U.S. citizens from occurring now and in the future; (2) that all Plaintiffs’ and Class members’ phone and
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internet records and communication records, whether telephonic or electronic, be returned to the provider and expunged from federal government records; and (3) a full disclosure and a complete accounting of what each Defendant and government agencies as a whole have done and allowed the DOJ and NSA to do.
JURY DEMAND Plaintiffs respectfully demands a jury trial on all issues so triable.

Dated: June 11, 2013

Respectfully submitted,
/s/ Larry Klayman
Larry Klayman, Esq. General Counsel Freedom Watch, Inc. D.C. Bar No. 334581 2020 Pennsylvania Ave. NW, Suite 345 Washington, DC 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com Attorney for Himself, Pro Se, Plaintiffs and the Class

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 Case 1:13-cv-00881-RJL Document 30 Filed 11/23/13 Page 1 of 35

IN UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LARRY KLAYMAN, on behalf of himself and all others similarly situated, 2020 Pennsylvania Ave. NW Suite 800 Washington, DC 20006
and
MICHAEL FERRARI, on behalf of himself and all others similarly situated, Santa Clara, CA
and
CHARLES STRANGE, on behalf of himself and all others similarly situated, Philadelphia, Pennsylvania
and
MATT GARRISON, on behalf of himself and all others similarly situated, Long Beach, CA
Plaintiffs, v.
BARACK HUSSEIN OBAMA II, President of the United States 1600 Pennsylvania Ave. NW Washington, DC 20500
and
ERIC HIMPTON HOLDER, JR., Attorney General of the United States 555 Fourth St. NW Washington, DC 20530
and

Civil Action No.: 13-CV-881

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KEITH B. ALEXANDER Director of the National Security Agency, 9800 Savage Rd. Fort Meade, MD 20755
and
NATIONAL SECURITY AGENCY, Director of the National Security Agency, 9800 Savage Rd. Fort Meade, MD 20755
and
THE U.S. DEPARTMENT OF JUSTICE, 950 Pennsylvania Ave. NW Washington, DC 20530 and
FACEBOOK, INC., 156 University Avenue Palo Alto, CA 94301
and
MARK ZUCKERBERG, Founder and CEO of Facebook 156 University Avenue Palo Alto, CA 94301
and
GOOGLE, 1600 Amphitheatre Parkway Mountain View, CA 94043
and
LARRY PAGE CEO of Google 1600 Amphitheatre Parkway Mountain View, CA 94043
and
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YOUTUBE INC./LLC, San Bruno, CA
and
SALAR KAMANGAR CEO of YouTube San Bruno, CA
and
APPLE, INC., 1 Infinite Loop Cupertino, CA 95014
and
TIMOTHY D. COOK CEO of Apple 1 Infinite Loop Cupertino, CA 95014
and
MICROSOFT CORP., One Microsoft Way Redmond, Washington 98052
and
STEVE BALLMER CEO of Microsoft One Microsoft Way Redmond, Washington 98052
and
SKYPE 2145 Hamilton Ave. San Jose, CA 95125
and
TONY BATES CEO of Skype 2145 Hamilton Ave.
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San Jose, CA 95125
and
AOL 560 Broadway, Suite 308 New York, NY 20012
and
TIM ARMSTRONG CEO of AOL 560 Broadway, Suite 308 New York, NY 20012
and
YAHOO! 701 1st Avenue, Sunnyvale, CA 94089
and
MARISSA MEYER CEO of Yahoo! 701 1st Avenue, Sunnyvale, CA 94089
and
PALTALK 500 North Broadway, Suite 259 Jericho, NY 11753
and
JASON KATZ CEO of PalTalk 500 North Broadway, Suite 259 Jericho, NY 11753
and
AT&T 1209 Orange Street Wilmington, Delaware 19801
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and RANDALL L. STEPHENSON Chairman and CEO of AT&T 1209 Orange Street Wilmington, Delaware 19801 and SPRINT COMMUNICATIONS COMPANY 6200 Sprint Parkway Overland Park, KS 66251 and DANIEL R. HEESE CEO of Sprint 6200 Sprint Parkway Overland Park, KS 66251
Defendants.
AMENDED COMPLAINT Plaintiff, Larry Klayman, (“Klayman”), a former U.S. Department of Justice prosecutor, Plaintiff Michael Ferrari, (“Ferrari”), Plaintiff Charles Strange, (“Strange”), and Plaintiff Matt Garrison, (“Garrison”), (collectively “Plaintiffs”), bring this action on their own behalf and on behalf of a class of persons defined below. Plaintiffs hereby sue Barack Hussein Obama, Eric H. Holder (“Holder”), Keith B. Alexander (“Alexander”), the U.S. Department of Justice (“DOJ”), the National Security Agency (“NSA”), Mark Zuckerberg (“Zuckerberg”), Facebook, Inc., (“Facebook”), Google, Inc. (“Google”), Larry Page, (“Page”), YouTube, Inc./LLC (“YouTube”), Salar Kamangar (“Kamangar”), Apple, Inc., (“Apple”), Timothy D. Cook, (“Cook”), Microsoft Corp., (“Microsoft”), Steve Ballmer (“Ballmer”), Skype, Tony Bates (“Bates”), AOL, Tim Armstrong, (“Armstrong”), Yahoo!, Inc., (“Yahoo!”), Marissa Meyer, (“Meyer”), PalTalk, Jason Katz (“Katz”), AT&T, Randall L. Stephenson (“Stephenson”), Sprint Communications
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Company, (“Sprint”), and Daniel R. Heese (“Heese”), (collectively “Defendants”), in their personal and official capacities, for violating Plaintiffs’ constitutional rights, Plaintiffs’ reasonable expectation of privacy, free speech and association, right to be free of unreasonable searches and seizures, and due process rights, as well as certain common law claims, for directly and proximately causing Plaintiffs mental and physical pain and suffering and harm as a result of the below pled illegal and criminal acts. Plaintiffs and members of the class pled below allege as follows:
INTRODUCTION 1. Plaintiffs bring this action on behalf of themselves and all other similarly situated
consumers, users, and U.S. citizens who are subscribers, users, customers, and otherwise avail themselves to Facebook, Yahoo, Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT&T, and/or Apple. 2. This is an action for monetary, declaratory, equitable, and injunctive relief as a result of the U.S. Government’s illegal and unconstitutional use of an electronic surveillance program in violation of the First, Fourth, and Fifth Amendments to the U.S. Constitution. This action also involves violations of privacy, including intrusion upon seclusion, freedom of expression and association, due process and other illegal acts. This is also an action for divulgence of communication records in violation of 18 U.S.C. §2702(a)(1), (2), and (3). In addition, this lawsuit challenges the government’s expansive acquisition of Plaintiffs’ telephone records under Section 215 of the Patriot Act, 50 U.S.C. §1860 and the legality of Defendants’ participation and conduct in a secret and illegal government scheme to intercept and analyze vast quantities of communications from the Internet and electronic service providers.
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3. The NSA’s classified program, referred to as “PRISM,” is an internal government computer system used to manage domestic and foreign intelligence collected from the internet and other electronic service provides. Government officials have indicated this program has been in place for seven years and that it collects records of all telephone communications of every customer of a major phone company including Verizon, AT&T, and Sprint.
4. The government has acknowledged that it is collecting “metadata” about every phone call made or received by residents of the U.S., and these records provide intricate details, including the identity of the individual who was spoken to, the length of time of the conversation, and where the conversation took place. Moreover, it gives the government a comprehensive record of an individual’s associations, speech, and public movements while revealing personal details about an individual’s familial, political, professional, religious, and intimate associations.
5. For example, recently, the government ordered access to Verizon’s electronic copies of the following tangible things: all call detail records or "telephony metadata" created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls. Such telephony metadata includes comprehensive communications routing information, including but not limited to session identifying information (e.g. originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.) trunk identifier, telephone calling card numbers, and time and duration of call. (As a result of the blatant intrusion and violation of privacy
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rights, in a related case, Plaintiffs Klayman and Strange filed a Class Action Complaint against Verizon, Civil Action No.: 1:13-cv-00851) 6. Prior to this disclosure and revelation, Plaintiffs and class members had no notice and no reasonable opportunity to discover the existence of the surveillance program or the violation of the laws alleged herein. 7. The NSA and the Federal Bureau of Investigation continue to siphon personal data from the main computer servers of reportedly major U.S. Internet firms, including Microsoft (Hotmail, etc.), Google, Yahoo!, Facebook, PalTalk, YouTube, Skype, AOL, and Apple. The information the NSA receives in the surveillance and collection of stored communications include, E-mails, chat (video/voice), videos, photos, stored data, VoIP, file transfers, video conferencing, notification of target activity (i.e. logins, etc.), online social networking details, and other special requests. 8. Defendants maintain domestic telecommunications facilities over which hundreds of millions of Americans’ telephone communications pass every day. Defendants also include internet service providers and popular website founders, who provide internet, email, social networking, and the like to millions of Americans, who use these services as a primary means of communication. Defendants also manage some of the largest databases in the world containing records of most or all communications made through their myriad telecommunications services and operations. 9. Defendants have opened its key telecommunication databases to direct access by the NSA and/or other government agencies, intercepting and disclosing to the government the contents of its customers as well as detailed communication records over three hundred million of its customers, including Plaintiffs and class members. On information
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and belief, Defendants continue to assist the government in its secret surveillance of over three hundred million of ordinary Americans citizens just on a daily basis. 10. Such broad and intrusive PRISM collections directly violate the U.S. Constitution and also federal laws, including, but not limited to, the outrageous breach of privacy, freedom of speech, freedom of association and the due process rights of American citizens. Plaintiffs and members of the class are suing for damages, declaratory, equitable, and injunctive relief to stop this illegal conduct and hold Defendants, individually and collectively, responsible for their illegal collaboration in the surveillance program, which has violated the law and damaged the fundamental freedoms of American citizens.
THE PARTIES 11. Plaintiff Larry Klayman is an individual and an attorney who is a subscriber and user of
Verizon Wireless, Apple, Microsoft, YouTube, Yahoo, Google, Facebook, AT&T, and Skype at all material times. Klayman routinely communicates with members of the public as well as journalists and associates by telephonic communications and electronic messages through Facebook, Google, Apple, and Skype. Klayman’s communications, particularly as an attorney, are sensitive and often privileged. Plaintiff Larry Klayman resided in the District of Columbia (“D.C”) for over twenty years and continues to conduct business in Washington, D.C. as the Chairman and General Counsel of Freedom Watch and otherwise. Plaintiff Larry Klayman is a public advocate and has filed lawsuits against President Obama and has been highly critical of the Obama administration as a whole. On information and belief, Defendants have accessed the records pertaining to Plaintiff Larry Klayman. 12. Plaintiff Strange is an individual and the father of Michael Strange, a member of Navy SEAL Team VI who was killed when the helicopter he was in was attacked and shot
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down by terrorist Taliban jihadists in Afghanistan on August 6, 2011. Plaintiff Strange is a consumer, subscriber, and user of Google/Gmail, Yahoo, Facebook, AOL, and YouTube. On information and belief, Defendants have accessed Plaintiff Strange’s records particularly since these Plaintiffs have been vocal about their criticism of President Obama as commander-in-chief, his administration, and the U.S. military regarding the circumstances surrounding the shoot down of their son’s helicopter in Afghanistan, which resulted in the death of his son and other Navy Seal Team VI members and special operation forces. Plaintiff Strange has substantial connections with Washington, D.C., as he holds press conferences in Washington, D.C. and lobbies in Washington, D.C. as an advocate for his son and to obtain justice for him, as well as to change the policies and orders of President Obama and the U.S. military’s acts and practices, which contributed to his son’s death. 13. Plaintiff Ferrari is an individual who is a subscriber, consumer, and user of Sprint, Google/Gmail, Yahoo!, and Apple. As a prominent private investigator, Ferrari regularly communicates, both telephonically and electronically, with associates and other members of the public, regarding various matters including work-related discussions. Additionally, Ferrari’s emails contain private details, discussions, and communications. Similarly, Ferrari’s Apple product may contain confidential documents and information. 14. Plaintiff Garrison is an individual who is a consumer and user of Facebook, Google, YouTube, and Microsoft products. As also a prominent private investigator, Plaintiff Garrison is required to use his computer, which contains Microsoft programming, for personal matters as well as work related matters. Plaintiff stores various documents and records on his computer, which are private records.
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15. Defendant Barack Hussein Obama ("Obama") is the President of the United States and currently resides in Washington, D.C.
16. Defendant Eric Holder ("Holder") is the Attorney General of the United States and conducts his duties as the Attorney General in Washington, D.C.
17. The National Security Agency ("NSA") is an intelligence agency of the U.S. Department of Defense and conduct its duties in Washington, D.C.
18. Defendant Keith B. Alexander ("Alexander") is the Director of the National Security Agency. He is also the commander of the U.S. Cyber Command, where he is responsible for planning, coordinating, and conducting operations of computer networks. He is also at the command for U.S. National Security Information system protection responsibilities. He conducts his duties for the National Security Agency in Washington, D.C.
19. Defendant The U.S. Department of Justice ("DOJ") is a U.S. federal executive department responsible for the enforcement of the law and administration of justice, and its headquarters is located in Washington, D.C., where it conducts most of its activities and business.
20. Defendant Mark Zuckerberg (“Zuckerberg”) is an individual who at all times mentioned herein resides in California. Zuckerberg is the founder and CEO of Facebook, Inc.
21. Defendant Facebook, Inc., (“Facebook”) is a New York Corporation who, at all material times has corporate headquarters located at 156 University Avenue, Palo Alto, CA 94301 and engages in social networking via the internet. Defendants Zuckerberg and Facebook do business in D.C. and Facebook is widely viewed and read there.
22. Defendant Google (“Google”) is a Delaware Corporation with its principal place of business at 1600 Amphitheatre Parkway, Mountain View, CA 94043. Google is a
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technology company that provides free web products to consumers, including its widely used email service, “Gmail,” which allows consumers to send and receive emails, chat with other consumers, and store email messages, contact lists, calendar entries, and other information on Google’s servers. Google also offers consumers Google+, a social network where consumers can set up a profile and share text, links, photos and videos through a variety of Google products, such as Google Reader, Google, Blogger, and Picasa. In addition, Google provides a variety of other products, including its well-known globally utilized search engine, YouTube, Google Docs (where consumers can create and edit documents online); and Google Maps (where consumers can view satellite images of locations all over the world, plan routes, and which has a GPS-like service that tracks the consumer’s location). 23. Different Google products log and keep track of different information about consumers and users, including a consumer’s and user’s first and last name, home or other physical address, the consumer’s current, physical location, the consumer’s email address or other online contact information, the consumer’s telephone number and list of contacts; and the consumer’s search history from Google’s search engine. 24. Defendant Larry Page, (“Page”), is the cofounder and CEO of Google. 25. Defendant YouTube, Inc./LLC, (“YouTube”), is a Delaware corporation with its principal place of business in San Bruno, CA. YouTube is a wholly owned and controlled subsidiary of Google, who acquired YouTube in 2006 for $1.65 billion. YouTube operates a website, located at www.youtube.com, and is one of the most prominent, popular, and widely used websites on the Internet. It allows consumers to stream and post videos of interest to them.
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26. Defendant Salar Kamangar, (“Kamangar”), is the CEO of YouTube. 27. Defendant Apple, Inc., (“Apple”) is a California corporation having its principal place of
business at 1 Infinite Loop, Cupertino, CA 95014. Apple is a leading designer and manufacturer of popular mobile communication devises, personal computers, and portable digital media players. Apple products include, but are not limit to, the iPhone, iPod, iPad computer tablet, and unique computers. 28. Defendant Timothy D. Cook (“Cook)” is the CEO of Apple. 29. Defendant Microsoft Corporation, (“Microsoft”) is a corporation organized and existing under the laws of the State of Washington, with its principal place of business located at One Microsoft Way, Redmond, Washington 98052. Microsoft sells and licenses operating systems for PC’s throughout the United States and the world. 30. Defendant Steve Ballmer, (“Ballmer”) is the CEO of Microsoft. 31. Defendant Skype is a Delaware corporation having an address and place of business at 2145 Hamilton Avenue, San Jose, CA 95125. Skype is engaged in the business of providing Voice Over Internet Protocol (“VoIP”) peer-to-peer communication products and services and other related products and services to users located around the world. As part of Skype’s overall business, Skype provides its user with the means to make free, unlimited global telephone calls to other Skype users over the internet using peer-to-peer software. 32. Defendant Tony Bates, (“Bates”) is the CEO of Skype. 33. Defendant AOL (“AOL”) is a corporation organized and existing under the laws of the state of Delaware with its principal place of business in the County of New York in the
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State of New York at 560 Broadway, Suite 308, New York, NY 20012. AOL is a computer on-line, interactive information, communication, and transaction service. 34. Defendant Tim Armstrong (“Armstrong”) is the CEO of AOL. 35. Defendant Yahoo! (“Yahoo!”), is a corporation organized under the laws of Delaware, with its principal place of business at 701 1st Avenue, Sunnyvale, CA 94089. Yahoo! is a global internet communication and media company that offers a comprehensive branded network of services to users worldwide. Yahoo! Provides online products such as news, finance, social networking, search engine, e-mail, instant messaging, and shopping to millions of daily users. 36. Defendant Marissa Meyer (“Meyer”) is the CEO of Yahoo!. 37. Defendant PalTalk, (“PalTalk”) is a Deleware corporation with its principal place of business at 500 North Broadway, Suite 259 Jericho, NY 11753. PalTalk provides a technology that allows users to participate in multiplayer games over the internet, and allows users to communicate through a group messaging server as well as establishing groups for online game play. 38. Defendant Jason Katz (“Katz”) is the CEO of PalTalk. 39. Defendant AT&T (“AT&T”), is a Delaware corporation having its principal place of business at 1209 Orange Street, Wilmington, Delaware. AT&T provides local and longdistance telecommunication services to businesses and residential customers, in addition to providing DSL services and wireless communication services throughout the United States to its customers throughout the United States. 40. Defendant Randall L. Stephenson, (“Stephenson”) is the Chairman and CEO of AT&T.
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41. Defendant Sprint Communications Company, (“Sprint”) is organized and exists under the laws of the State of Delaware, with its principal place of business at 6200 Sprint Parkway, Overland Park, KS 66251. Sprint is a global communications company that provides telecommunications services to business and residential customers in more than 70 companies. Sprint also provides internet services, and its internet network has a substantial customer base of large U.S. and international service providers.
42. Defendant Daniel R. Hesse (“Hesse”) is the CEO for Sprint Nextel. 43. All of these Defendants, each and every one of them, jointly and severally, acted in
concert to violate the constitutional privacy rights, free speech, freedom of association, due process and other legal rights of Plaintiffs and all other American citizens similarly situated who are members of the classes pled herein.
JURISDICTION AND VENUE 44. This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §1331
(Federal Question Jurisdiction). 45. Jurisdiction and venue are proper pursuant to 28 U.S.C. §1331, which states in pertinent
part, “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” At issue here is the unconstitutional violation of Plaintiffs' rights under the First, Fourth, and Fifth Amendments to the U.S. Constitution. 46. Supplemental jurisdiction is also proper under 28 U.S.C. §1367, which states in pertinent part, " . . .in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the U.S. Constitution.
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47. Plaintiffs are informed, believe and thereon allege that, based on the places of business of the Defendants and/or on the national reach of Defendants, a substantial part of the events giving rise to the claims herein alleged occurred in this district and that Defendants and/or agents of Defendants may be found in this district. In addition, Defendants’ actions caused injury to Plaintiffs in this District, which they engaged in international communications. STATEMENT OF FACTS
48. The NSA began a classified surveillance program, known as “PRISM,” to intercept the telephone communications of persons inside the United States, a program that continues to this date.
49. On June 5, 2013, The Guardian published an article entitled, "NSA collecting phone records of millions of Verizon customers daily. Exclusive: Top secret court order requiring Verizon to hand over all call data shows scale of domestic surveillance under Obama." The U.S. government, on the orders authorization of the President, the Attorney General, the DOJ and the NSA, has obtained a top secret court order that directs Verizon to turn over the telephone records of over one hundred million Americans to the NSA on an ongoing daily basis.
50. Based on knowledge and belief, this Verizon Order is the broadest surveillance order to ever have been issued; it requires no level of reasonable suspicion or probable cause and incredibly applies to all Verizon subscribers and users anywhere in the United States and overseas.
51. Since June 5, 2013, Defendants Obama, Holder, Alexander, McAdan, Vinson, Verizon, the DOJ, and the NSA have been widely condemned among American citizens regarding
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their failure to uphold the U.S. Constitution and intentionally violating the fundamental rights of Plaintiffs, members of the class, and over one hundred million of other Americans. As just one example, Senator Rand Paul called the surveillance of Verizon phone records "an astounding assault on the constitution," and has called for a class action lawsuit such as this one. 52. Under Defendant Obama's administration, the communication records of over one hundred million of U.S. citizens are being collected indiscriminately and in bulk regardless of whether there is reasonable suspicion or any “probable cause” of any wrongdoing. 53. Such schemes by the Defendants in concert with the government have subjected untold number of innocent people to the constant surveillance of government agents. As Jameel Jaffeer, the ACLU’s deputy legal director, stated, “It is beyond Orwellian, and it provides further evidence of the extent to which basic democratic rights are being surrendered in secret to the demands of unaccountable intelligence agencies.” 54. To date, Defendants have not issued substantive and meaningful explanations to the American people describing what has occurred. To the contrary, criminal charges are reportedly being pursued by Defendants Obama, Holder, the DOJ, and the NSA against the leaker of this plot against American citizens in a further effort suppress, obstruct justice, and to keep Defendants’ illegal actions as secret as possible. 55. Rather, on information and belief, the NSA, under the authorization of President Obama, continues to engage in a systematic program of warrantless eavesdropping upon phone and email communications of hundreds of millions of individuals, including American citizens and permanent legal residents, both within and outside of the U.S. The NSA
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Surveillance program collects not only the identities of persons communications with the targets of surveillance, but also the contents of those communications. 56. Such intrusive and illegal surveillance have directly impacted each and every Plaintiff. The revelation that the government has been carrying on widespread warrantless interception of electronic communications has impaired Plaintiffs’ ability to communicate via telephone, email, and otherwise on the internet, out of fear that their confidential, private, and often privileged communications are being and will be overheard by the NSA’s surveillance program. 57. The risk and knowledge that Plaintiffs’ telephonic, and internet, electronic conversations may be overheard, undoubtedly chills speech, in violation of Plaintiffs’ First Amendment rights.
CLASS ACTION ALLEGATIONS 58. Pursuant to Federal Rules of Civil Procedure, Rule 23(a) and Rule 23(b), Plaintiffs bring
this action on behalf of themselves and a nationwide class (the “Nationwide Class”) of similarly situated persons defined as: All American citizens in the United States and overseas who are current subscribers, users, or customers of the services and/or products of Facebook, Google, Yahoo, YouTube, Skype, AOL, Sprint, AT&T, Apple, Microsoft, and PalTalk. 59. Plaintiffs also bring this action on behalf of themselves and other American citizens who, in addition to being members of the Nationwide Class, had their telephone calls and/or emails and/or any other communications made or received through Facebook, Google, Yahoo, YouTube, Skype, AOL, Sprint, AT&T, Apple, Microsoft and/or PalTalk actually recorded and/or listened into by or on behalf of Defendants (the “Subclass”).
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60. The Nationwide Class and Subclass seek certification of claims for declaratory relief, injunctive relief and damages pursuant to 18 U.S.C. §2707.
61. Excluded from the Nationwide Class and the Subclass are the officers, directors, and employees of Defendants, their legal representatives, heirs, successors, and assigns of Defendants, and all judges who may ever adjudicate this case.
62. This action is brought as a class action and may be so maintained pursuant to the provisions of the Federal Rules of Civil Procedure, Rule 23. Plaintiffs reserve the right to modify the Nationwide Class and Subclass definitions and the class period based on the results of discovery.
63. Numerosity of the Nationwide Class: The National Class and the Subclass (collectively referred to below as the “Class”) are so numerous that the individual joinder of all members, in this or any action is impracticable. The exact number or identification of Class members is presently unknown to Plaintiffs, but it is believed that the Class numbers over a hundred million citizens. The identity of Class members and their addresses may be ascertained from Defendants’ records. Class members may be informed of the pendency of this action by a combination of direct mail and public notice, or other means, including through records possessed by Defendants.
64. Commonality: There is a well-defined community of interest in the questions of law and fact involved affecting the members of the Class. These common legal and factual questions include: a. Whether Defendants have divulged subscriber information or other records pertaining to Class members in violation of 18 U.S.C. §2702(a)(3), or are currently doing so;
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b. Whether Plaintiffs and Class members are entitled to recover compensatory, statutory and punitive damages, whether as a result of Defendants’ illegal conduct, and/or otherwise;
c. Whether Plaintiffs and Class members are entitled to declaratory, injunctive and/or equitable relief; and
d. Whether Plaintiffs and Class members are entitled to an award of reasonable attorneys’ fees, pre-judgment interest, and costs of this suit.
65. Typicality: Plaintiffs’ claims are typical of the claims of the members of the Class because Plaintiffs and the Class members are or were a subscriber, consumer, or user of Defendants’ products and/or services and have communicated, either telephonically or electronically, through Defendants’ product(s). Plaintiffs and all members of the Class have similarly suffered harm arising from Defendants’ violations of law, as alleged herein.
66. Adequacy: Plaintiffs are adequate representatives of the Class because their interests do not conflict with the interests of the members of the Class they seek to represent. Plaintiffs intend to prosecute this action vigorously. Plaintiffs will fairly and adequately protect the interest of the members of the Class.
67. This suit may also be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) because Plaintiffs and the Class seek declaratory and injunctive relief, and all of the above factors of numerosity, common questions of fact and law, typicality and adequacy are present. Defendants have acted on grounds generally applicable to Plaintiffs and the Class as a whole, thereby making declaratory and/or injunctive relief proper.
68. Predominance and Superiority: This suit may also be maintained as a class action under Federal Rule of Civil Procedure 23(b)(3) because questions of law and fact common to the Class predominate over the questions affecting only individual members
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Case 1:13-cv-00881-RJL Document 30 Filed 11/23/13 Page 21 of 35
of the Class and a class action is superior to other available means for the fair and efficient adjudication of this dispute. The damages suffered by each individual Class member, depending on the circumstances, may be relatively small or modest, especially given the burden and expense of individual prosecution of the complex and extensive litigation necessitated by Defendants’ conduct. Furthermore, it would be virtually impossible for the Class members, on an individual basis, to obtain effective redress for the wrongs done to them. Moreover, even if Class members themselves could afford such individual litigation, the court system could not. Individual litigation presents a potential for inconsistent or contradictory judgments. Individualized litigation increases the delay and expenses to all parties and the court system presented by the complex legal issues of the case. By contrast, the class action device presents far fewer management difficulties and provides the benefits of a single adjudication, economy of scale, and comprehensive supervision by a single court.
FIRST CLAIM FOR RELIEF (Fifth Amendment Violation – Defendants Obama, Holder, Alexander, DOJ, and NSA)
(Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics) 69. Plaintiffs and the members of the Class repeat and reallege all of the previous allegations
in paragraphs 1 through 68 of this Complaint with the same force and affect, as if fully set forth herein again at length. 70. Plaintiffs and the members of the Class enjoy a liberty interest in their personal security and in being free from the Defendants’ and the government's use of unnecessary and excessive force or intrusion against his person.
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Case 1:13-cv-00881-RJL Document 30 Filed 11/23/13 Page 22 of 35
71. Plaintiffs and the members of the Class enjoy a liberty of not being deprived of life without due process of law, as guaranteed by the Fifth Amendment to the U.S. Constitution.
72. Defendants Obama, Holder, Alexander, the DOJ, and the NSA violated Plaintiffs' and the Class members’ constitutional rights when they authorized broad and intrusive collections of records of individuals through the PRISM surveillance program, thereby giving the government and themselves unlimited authority to obtain telephone and internet data for a specified amount of time.
73. By reason of the wrongful conduct of the Defendants, each and every one of them, jointly and severally, Plaintiffs and members of the Class suffered and continue to suffer from severe emotional distress and physical harm, pecuniary and economic damage, loss of services, and loss of society accordingly.
74. These violations are compensable under Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). As a direct and proximate result of the intentional and willful actions of Defendants Obama, Holder, Alexander, DOJ and NSA, Plaintiffs and members of the Class demand judgment be entered against Defendants Obama, Holder, Alexander, DOJ and NSA, each and every one of them, jointly and severally, including an award of compensatory and actual damages, punitive damages, equitable relief, reasonable attorneys fees, pre-judgment interest, post-interest and costs, and an award in an amount in excess of $20 billion U.S. dollars, and such other relief as the Court may deem just and proper. Plaintiffs and the members of the Class demand declaratory and injunctive and other equitable relief against all of Defendants as set forth below.
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Case 1:13-cv-00881-RJL Document 30 Filed 11/23/13 Page 23 of 35
SECOND CLAIM FOR RELIEF (First Amendment Violation - Defendants Obama, Holder, Alexander, DOJ, and NSA)
(Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics) 75. Plaintiffs and members of the Class repeat and reallege all of the previous allegations in
paragraphs 1 through 74 of this Complaint with the same force and affect, as if fully set forth herein again at length. 76. Defendants Obama, Holder, Alexander, DOJ and NSA, acting in their official capacity and personally, abridged and violated Plaintiffs’ and Class members’ First Amendment right of freedom of speech and association by significantly minimizing and chilling Plaintiffs’ and Class members’ freedom of expression and association. 77. Defendants Obama, Holder, Alexander, DOJ and NSA’s acts chill, if not “kill,” speech by instilling in Plaintiffs, members of the Class, and over a hundred million of Americans the fear that their personal and business conversations with other U.S. citizens and foreigners are in effect tapped and illegally surveyed. 78. In addition, Defendants Obama, Holder, Alexander, DOJ and NSA, acting in their official capacity and personally, violated Plaintiffs’ and Class members’ right of freedom of association by making them and others weary and fearful of contacting other persons and entities via cell phone out of fear of the misuse of government power and retaliation against these persons and entities who challenge the misuse of government power. 79. By reason of the wrongful conduct of these Defendants, Plaintiffs and members of the Class suffered and continue to suffer from severe emotional distress and physical harm, pecuniary and economic damage, loss of services, and loss of society accordingly. 80. These violations are compensable under Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
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Case 1:13-cv-00881-RJL Document 30 Filed 11/23/13 Page 24 of 35
81. As a direct and proximate result of the intentional and willful actions of Defendants Obama, Holder, Alexander, DOJ and NSA, Plaintiffs and members of the Class demand that judgment be entered against Defendants Obama, Holder, Alexander, DOJ and NSA, each and every one of them, jointly and severally, including an award of compensatory and actual damages, punitive damages, equitable relief, reasonable attorneys fees, prejudgment interest, post-interest and costs, and an award in an amount in excess of $20 billion U.S. dollars and such other relief as the Court may deem just and proper. THIRD CLAIM FOR RELIEF
(Fourth Amendment Violation - Defendants Obama, Holder, Alexander, DOJ, and NSA) (Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics)
82. Plaintiffs and members of the Class repeat and reallege all of the previous allegations in paragraphs 1 through 81 of this Complaint with the same force and affect, as if fully set forth herein again at length.
83. The Fourth Amendment provides in pertinent part that people have a right to be secure in their persons against unreasonable searches and seizures, that warrants shall not be issued but upon probable cause, and that the place of search must be described with particularity.
84. Defendants Obama, Holder, Alexander, DOJ and NSA, acting in their official capacities and personally, violated the Fourth Amendment to the U.S. Constitution when they unreasonably searched and seized and continue to search Plaintiffs’ and Class members’ phone records and electronic communications without reasonable suspicion or probable cause.
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85. Defendants Obama, Holder, Alexander, DOJ and NSA, acting in their official capacity and personally, violated the Fourth Amendment to the U.S. Constitution by not describing with particularity the place to be searched or the person or things to be seized.
86. In fact, the blanket and vastly overbroad surveillance program by the NSA, acting on behalf of the federal government and therefore Defendant Obama, as he is the chief executive of the federal government, as well as the other Defendants, does not state with any particularity who and what may be searched.
87. The collection and production of the phone and internet records allows Defendant NSA to build easily and indiscriminately a comprehensive picture and profile of any individual contacted, how and when, and possibly from where, retrospectively and into the future.
88. By reason of the wrongful conduct of Obama, Holder, Alexander, DOJ and NSA, Plaintiffs and members of the Class suffered and continue to suffer from severe emotional distress and physical harm, pecuniary and economic damage, loss of services, and loss of society accordingly.
89. These violations are compensable under Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). As a direct and proximate result of the intentional and willful actions of Defendants Obama, Holder, Alexander, DOJ and NSA, Plaintiffs and members of the Class demand judgment be entered against Defendants Obama, Holder, Alexander, DOJ and NSA, each and every one of them, jointly and severally, including an award of compensatory and actual damages, punitive damages, equitable relief, reasonable attorneys fees, pre-judgment interest, post-interest and costs, and an award in an amount in excess of $20 billion U.S. dollars and such other relief as the Court may deem just and proper.
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FOURTH CLAIM FOR RELIEF (Intentional Infliction of Emotional Distress - Each and Every Defendant) 90. Plaintiffs and members of the Class repeat and reallege all of the previous allegations in paragraphs 1 through 89 of this Complaint with the same force and affect, as if fully set forth herein again at length. 91. Defendants’ willful acts constitute outrageous conduct insofar as they violated Plaintiffs’ and Class members’ basic democratic rights, constitutional rights, and exposed them to beyond an "Orwellian regime of totalitarianism." Plaintiffs’ and Class members’ rights are being surrendered in secret to the demands of unaccountable intelligence and other government agencies, as well as all of the Defendants. 92. Defendants intended to cause Plaintiffs and members of the Class emotional distress and physical harm and acted in reckless disregard causing Plaintiffs and members of the Class emotional distress by committing these acts. The only purpose of this outrageous and illegal conduct is to intimidate American citizens and keep them from challenging a tyrannical administration and government presently controlled by the Defendants, a government which seeks to control virtually every aspect of Plaintiffs, members of the Class, and other American's lives, to further its own, and Defendants "agendas." 93. Defendants Obama, Holder, and Alexander were agents of the United States and acted personally when they committed these acts. 94. As a direct and proximate result of Defendants’ acts, Plaintiffs and members of the Class suffered and Plaintiffs and members of the Class continue to suffer mental anguish, and severe emotional distress and physical harm.
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95. By reason of the wrongful conduct of Defendants, Plaintiffs and members of the Class suffered and continue to suffer from severe emotional distress and physical harm, pecuniary and economic damage, loss of services, and loss of society accordingly.
96. Plaintiffs and members of the Class demand that judgment be entered against Defendants, each and every one of them, jointly and severally, including an award of compensatory and actual damages, punitive damages, equitable relief, reasonable attorneys fees, prejudgment interest, post-interest, costs, and an award in an amount in excess of $20 billion U.S. dollars and such other relief as the Court may deem just and proper. FIFTH CLAIM FOR RELIEF (Intrusion Upon Seclusion - Each and Every Defendant)
97. Plaintiffs and members of the Class repeat and reallege all of the previous allegations in paragraphs 1 through 96 of this Complaint with the same force and effect, as if fully set forth herein again at length.
98. Defendants intentionally intruded upon the solitude and seclusion of Plaintiffs and members of the Class in their private affairs and concerns in a highly offensive way, and are liable for the invasion of Plaintiffs’ and Class members’ privacy.
99. Defendants intruded upon the seclusion of Plaintiffs and members of the Class when they unreasonably and without reasonable suspicion or probable cause obtained access to Plaintiffs’ and Class members’ phone and internet records including but not limited to their location data, call duration, unique identifiers, and the time and duration of his calls, and on information and belief, listened into and recorded calls and intercepted and reviewed Plaintiffs’ internet records. Defendants’ acts are highly offensive to a reasonable person. Therefore, Defendants are liable for their intrusion.
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100. By reason of the wrongful conduct of Defendants, Plaintiffs and members of the Class
suffered and continue to suffer from severe emotional distress and physical harm,
pecuniary and economic damage, loss of services, and loss of society accordingly.
Plaintiffs, and other members of the Class, demand that judgment be entered against
Defendants, each and every one of them, jointly and severally, for violating their
constitutional rights, subjecting them to unreasonable searches and seizures, and on
intrusion upon seclusion, including an award of compensatory and actual damages,
punitive damages, equitable relief, reasonable attorneys fees, pre-judgment interest, post-
interest, costs, and an award in an amount in excess of $20 billion U.S. dollars and such
other relief as the Court may deem just and proper.
SIXTH CLAIM FOR RELIEF (Divulgence of Communication Records in Violation of 18 U.S.C. §§2702(a)(1) and/or (a)(2) – Each and Every Defendant) 101. Plaintiffs and members of the Class repeat and reallege all of the previous allegations in
paragraphs 1 through 100 of this Complaint with the same force and effect, as if fully set
forth herein again at length.
102. In relevant part, 18 U.S.C. §2702 provides that:
“(a) Prohibitions. – Exception as provided in subsection (b) – (1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and (2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service – (A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service; (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communication for purposes of providing any services other than storage or computer processing…”
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103. On information and belief, Defendants knowingly or intentionally divulged to one or more persons or entities the contents of Plaintiffs’ and Class members’ records.
104. Communication while in electronic storage by Defendants’ electronic communication service and/or while carried or maintained by Defendants’ remote computing service, in violation of 18 U.S.C. §§2702(a)(1) and/or (a)(2).
105. Defendants did not notify Plaintiffs or Class members of the divulgence of their communications, nor did Plaintiffs or Class members consent to such.
106. On information and belief, Defendants are now engaging in and will continue to engage in the above-described divulgence of Plaintiffs’ and Class members’ communications while in electronic storage by Defendants’ electronic communication service(s), and/or while carried or maintained by Defendants’ remote computing service(s), and that likelihood represents a credible threat of immediate future harm. Plaintiffs and Class members additionally seek a declaration pursuant to 28 U.S.C. §2201 that Defendants’ action violated 18 U.S.C. §2702, and seek reasonable attorneys’ fees pursuant to 28 U.S.C. §2202.
107. Plaintiffs and Class members have been and are aggrieved by Defendants’ abovedescribed knowing or intentional divulgence of records or other information pertaining to Plaintiffs and Class members.
108. Pursuant to 18 U.S.C. §2707, which provides a civil action for any person aggrieved by knowing or intentional violation of 18 U.S.C. §2702, Plaintiffs and Class members seek such preliminary and other equitable or declaratory relief as may be appropriate; monetary damages for each aggrieved Plaintiffs or Class member; punitive damages as
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the Court considers just; and reasonable attorneys’ fees and other litigation costs reasonably incurred.
SEVENTH CLAIM FOR RELIEF (Divulgence of Communication Records in Violation of 18 U.S.C. §§2702(a)(1) and/or (a)(2) –Each and Every Defendant 109. Plaintiffs and members of the Class repeat and reallege all of the previous allegations in paragraphs 1 through 108 of this Complaint with the same force and effect, as if fully set forth herein again at length. 110. In relevant part, 18 U.S.C. §2702 provides that: “(a) Prohibitions. – Exception as provided in subsection (b) – (3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2) to any governmental entity. 111. On information and belief, Defendants, providers of remote computing service and electronic communication services to the public, knowingly or intentionally divulged records or other information pertaining to Plaintiffs and Class members to a governmental entity in violation of 18 U.S.C. §2702(a)(3). 112. On information and belief, Defendants knowingly or intentionally divulged to one or more persons or entities the contents of Plaintiffs’ and Class members’ records. 113. On information and belief, Defendants are now engaging in and will continue to engage in the above-described knowing or intentional divulgence of Plaintiffs’ and Class members’ communications while in electronic storage by Defendant Verizon’s electronic communication service(s), and/or while carried or maintained by Defendant Verizon’s remote computing service(s), and that likelihood represents a credible threat of immediate future harm. Plaintiffs and Class members additionally seek a declaration pursuant to 28
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U.S.C. §2201 that Defendants’ action violated 18 U.S.C. §2702, and seek reasonable attorneys’ fees pursuant to 28 U.S.C. §2202. 114. Plaintiffs and Class members have been and are aggrieved by Defendants’ abovedescribed knowing or intentional divulgence of records or other information pertaining to Plaintiffs and Class members. 115. Pursuant to 18 U.S.C. §2707, which provides a civil action for any person aggrieved by knowing or intentional violation of 18 U.S.C. §2702, Plaintiffs and Class members seek such preliminary and other equitable or declaratory relief as may be appropriate; monetary damages for each aggrieved Plaintiffs or Class members; punitive damages as the Court considers just; and reasonable attorneys’ fees and other litigation costs reasonably incurred.
EIGHT CLAIM FOR RELIEF (Violation of the Administrative Procedure Act, 5 U.S.C. §701 et seq.–Each and Every Defendant) 116. Plaintiffs and members of the Class repeat and reallege all of the previous allegations in paragraphs 1 through 115 of this Complaint with the same force and effect, as if fully set forth herein again at length. 117. Defendants’ surveillance tactics and programs violate the Administrative Procedure Act, 5 U.S.C. §701 et seq., because Defendants’ actions under the surveillance programs exceed statutory authority and limitations imposed by Congress through FISA, exceed the statutory authority and limitations set forth in Section 215 of the Patriot Act, and are in violation of privacy and statutory rights under those laws; are not otherwise in accordance with law; are contrary to constitutional rights, including the First, Fourth, and Fifth Amendment; and are taken without observance of procedures required by law.
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118. Plaintiffs and Class members are aggrieved by these violations because, as described previously in this Complaint, Defendants’ actions under the surveillance programs have resulted in the interception, acquisition, disclosure, divulgence and/or use of the contents of their wire and electronic communications, communications records, and other information in violation of their constitutional and statutory rights.
119. Plaintiffs seek nonmonetary relief against the Defendants, including a declaration that Defendants have violated their rights and the rights of the class; an injunction enjoining Defendants, their agents, successors, and assigns, and all those in active concert and participation with them from violating the Plaintiffs’ and Class members’ rights; and such other and further nonmonetary relief as is proper. PRAYER FOR RELIEF
120. Plaintiffs and Class members demand that judgment be entered against Defendants, each and every one of them, jointly and severally, for compensatory and actual damages because of Defendants’ illegal actions causing this demonstrable injury to Plaintiffs and Class members, punitive damages because of Defendants’ callous, reckless indifference and malicious acts, and attorneys fees and costs in an amount in excess of $20 billion U.S. dollars and such other relief the Court may deem just and proper.
121. Plaintiffs and Class members demand declaratory, equitable and injunctive relief for their injuries in the following ways: (1) a cease and desist order to prohibit this type of illegal and criminal activity against Plaintiffs, Class members, and other U.S. citizens from occurring now and in the future; (2) that all Plaintiffs’ and Class members’ phone and internet records and communication records, whether telephonic or electronic, be returned to the provider and expunged from federal government records; and (3) a full
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disclosure and a complete accounting of what each Defendant and government agencies as a whole have done and allowed the DOJ and NSA to do. 122. Plaintiffs and Class members also seek relief in their preliminary injunction motion for their injuries through:
a. An injunction restraining and enjoining Defendants, its agents, servants, employees, attorneys, and all others in active concert or participation with Defendants, from implementing surveillance procedures, tactics, and programs that exceed statutory authority and constitutional provisions.
b. An order for Defendants to comply with any and all laws regarding the Defendants’ authority, power, and limits in conducting such mass warrantless domestic surveillance, including, but not limited to, Section 215 of the Patriot Act, Section 702 of the FISA Amendment Act, the Administrative Procedure Act, and the provisions of the U.S. Constitution.
c. An order that, every twenty (20) days, Defendants must submit declarations and any pertinent records, reports, and/or other documents to the Court regarding compliance with any and all minimization procedures implemented to prevent further warrantless collection of records belonging to U.S. citizens without reasonable suspicion or probably cause, any and all incidences of noncompliance, identification of any and all "targets" subject to Defendants' surveillance, and all other relevant reports, risk assessments, memoranda, and other documents. In the event that the records, reports, and/or other documents contain classified information, Defendants shall present such information in camera to the Court.
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d. An order that the Plaintiffs, in accordance with their discovery rights, may take discovery regarding Defendants' declarations. The Plaintiffs must file any responses to Defendants submissions under this section within thirty (30) days of the completion of the Plaintiffs' discovery. The Court will consider the parties' submissions, conduct any necessary evidentiary hearing, and order further relief as appropriate.
e. An order providing proper procedures allowing Plaintiffs’ counsel to obtain a security clearance in order to conduct said discovery.
f. An order, in accordance with the Federal Rules of Civil Procedure, that the Plaintiffs' discovery rights are reconfirmed. The Plaintiffs may take discovery, by deposition or otherwise, regarding any pertinent records, reports, and/or other documents to the Court regarding compliance with any and all minimization procedures implemented to prevent further warrantless collection of records belonging to U.S. citizens without reasonable suspicion or probably cause, any and all incidences of non-compliance, identification of any and all "targets" subject to Defendants' surveillance, and all other relevant reports, risk assessments, memoranda, and other documents. The scope of Plaintiffs' discovery requests may include "all relevant reports, risk assessments, memoranda, and other documents, whether prepared by the National Security Agency officials or employees, officials or employees of other government agencies, or third parties, any pertinent records, reports, and/or other documents to the Court relating to Defendants' compliance with any and all minimization procedures implemented to prevent further warrantless collection of records belonging to U.S. citizens
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without reasonable suspicion or probably cause, any and all incidences of noncompliance, identification of any and all "targets" subject to Defendants' surveillance, and all other relevant reports, risk assessments, memoranda, and other documents. g. An order that the parties shall endeavor to agree upon and submit to the Court, within ten (10) days issuance of the order, a proposed protective order to govern the disclosure of information and materials related to Defendants' surveillance. In the event that the parties are unable to agree on a proposed protective order, each party must submit a proposed protective order to the Court within ten (10) days of the order.
JURY DEMAND Plaintiffs respectfully demands a jury trial on all issues so triable.

Dated: November 17, 2013

Respectfully submitted,
/s/ Larry Klayman Larry Klayman, Esq. General Counsel Freedom Watch, Inc. D.C. Bar No. 334581 2020 Pennsylvania Ave. NW, Suite 345 Washington, DC 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com Attorney for Himself, Pro Se, Plaintiffs and the Class

35

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION; NEW YORK CIVIL LIBERTIES UNION; and NEW YORK CIVIL LIBERTIES UNION FOUNDATION,

Plaintiffs,
v.
JAMES R. CLAPPER, in his official capacity as Director of National Intelligence; KEITH B. ALEXANDER, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service; CHARLES T. HAGEL, in his official capacity as Secretary of Defense; ERIC H. HOLDER, in his official capacity as Attorney General of the United States; and ROBERT S. MUELLER III, in his official capacity as Director of the Federal Bureau of Investigation,

SUPPLEMENTAL DECLARATION OF
PROFESSOR EDWARD W. FELTEN
Case No. 13-cv-03994 (WHP)
ECF CASE

Defendants.

SUPPLEMENTAL DECLARATION OF PROFESSOR EDWARD W. FELTEN I, Edward W. Felten, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that
the following is true and correct:
1. Counsel f or Plaintiffs in th is la wsuit h ave a sked me to s ubmit a s upplemental
declaration explaining my views regarding four technological claims made by the government in
its opposition to Plaintiffs’ motion for a preliminary injunction:
a. that t he g overnment do es not obtain s ubscriber na mes unde r t he m ass c alltracking program, see, e.g., Gov’t PI Opp. 12;
b. that so-called “t hree-hop a nalysis” of a s uspect’s phone num ber “ cannot be a s effectively p erformed” without f irst bui lding a da tabase of everyone’s call records, see, e.g., Gov’t PI Opp. 4; 1

c. that t elephony m etadata i s uni que i n i ts “ standardized a nd i nter-connected” nature, see, e.g., Gov’t PI Opp. 21; and

d. that i t w ould t ake t he government “ approximately s ix m onths” t o de velop a method of qua rantining Plaintiffs’ c all records if a p reliminary in junction w ere granted, see Gov’t PI Opp. 40.

2. Below, I address those four claims.

It is easy to correlate telephone numbers with subscriber names.

3. The government r epeatedly e mphasizes i n i ts m otion t hat, unde r t he m ass c all-

tracking program, it does not obtain the subscriber names associated with Americans’ telephone

numbers. This may be true, but it is of little significance. As I explained in my first declaration,

Felten D ecl. ¶ 19 & n.1 4, it would be t rivial for t he government to obt ain a s ubscriber’s name

once i t ha s t hat s ubscriber’s phone num ber. This i s so because phone num bers a re uni que

identifiers. Like s ocial s ecurity num bers or individual taxpayer i dentification num bers, phone

numbers are unique to their owners.

4. It is extraordinarily easy to correlate a phone number with its unique owner. Many

phone num bers a re publicly correlated w ith t heir o wners an d can t herefore b e as sociated w ith

specific persons by consulting e ntirely publ ic s ources. For example, many free o r l ow-cost

Internet services allow users to perform “reverse-lookup searches” to determine the owner of a

particular phone

num

ber.

See, e

.g., h

ttp://www.whitepages.com;

http://www.peoplefinders.com/reverse-phone-directory. Of c ourse, ph ysical phone di rectories

remain in wide circulation and have been digitized to facilitate reverse-lookup searches.

5. The government a lso ha s a n a rray o f l egal a uthorities a t i ts di sposal to discover

the s ubscriber names of particular p hone num bers, even i f t hose correlations are not ot herwise

publicly available. For e xample, the government may issue demands to communication service

2

providers f or s ubscriber i nformation—including s ubscriber na mes and a ddresses—relevant t o terrorism investigations. See Felten Decl. ¶ 19 n.14.
Three-hop analysis can be performed without a database of all call records. 6. The government states that it could not perform three-hop analysis on a suspect’s phone number without first building a database of everyone’s call records. See Gov’t PI Opp. 4. This is technologically i ncorrect. There are a nu mber of w ays i n w hich the g overnment could perform t hree-hop analysis w ithout first b uilding its o wn d atabase o f every A merican’s call records. 7. For e xample, t he g overnment c ould obt ain a s ingle c ourt or der di recting a ll (o r perhaps even just the major) telephone companies to provide to the government the call records of everyone within three hops of a suspect’s phone number. Using a straightforward algorithm (which I could describe at greater length if necessary), this order could be implemented using at most two queries to each telephone provider. Moreover, this process could easily be automated to m ake i t vi rtually i nstantaneous. E ach of t he major t elephone c ompanies now s ubject t o a n order similar to the one revealed in June could create a simple electronic interface—known in the computer-programming profession a s a n A pplication P rogramming Interface, or A PI—that would be i nvoked b y a g overnment c omputer system t o a utomate t he collection of t he da ta needed for a t hree-hop analysis o f a s pecific t arget’s phone num ber. T he i nterfaces, working together t o i mplement t he a lgorithm r eferred t o a bove, c ould p erform t he g overnment’s t hreehop analysis essentially instantaneously—in a matter of seconds or less. At least one of the major telecommunications c ompanies ha s a lready b uilt pa rt of s uch a system, pr oviding the government with a “community of interest” search capability, which is a form of the social-graph analysis u sed i n t he m ass cal l-tracking p rogram. See Dep’t o f Justice, O ffice o f t he Inspector
3

Gen., A R eview of t he Federal B ureau of Investigation’s U se of E xigent L etters and O ther

Informal R

equests f

or T

elephone R

ecords

56–64

(2010),

http://www.justice.gov/oig/special/s1001r.pdf; Eric L ichtblau, F.B.I. D ata M ining R eached

Beyond Initial Targets, N.Y. Times, Sept. 9, 2007, http://nyti.ms/g34M.

8. I have reviewed the declarations submitted by Teresa Shea and Robert Holley in

support of the government’s claim that the collection of all Americans’ call records is necessary.

Nothing in their explanation of the supposed necessity of the program alters my conclusion that

three-hop analysis could be performed quickly and efficiently without first creating a database of

the s cope maintained b y t he g overnment. F or e xample, M s. Shea s uggests t hat t he m ass cal l-

tracking program would have allowed t he government t o l earn t hat a 9/ 11 hi jacker (Khalid al-

Mihdhar) w as i n t he U nited S tates w hen h e co mmunicated w ith an al Q aeda s afe house i n

Yemen. S hea D ecl. ¶ 11. T here i s absolutely no need for a d atabase o f e very A merican’s c all

records t o pe rform t his s ort of one -hop a nalysis. In a l-Mihdar’s c ase, t he g overnment c ould

easily have obtained from the telephone companies (using any number of legal authorities) the

call records of any American in communication with the al Qaeda safehouse. The same is true of

the example provided by Mr. Holley of Najibullah Zazi. See Holley Decl. ¶ 26. Mr. Holley states

that t he N SA r eceived Zazi’s t elephone num ber f rom t he FBI and di scovered t hat h e w as i n

contact w ith A dis M edunjanin. A gain, t his s imple c onnection c ould have be en di scovered

directly from t he t elephone c ompanies without t he ne ed f or a government da tabase o f a ll call

records. As I explained above, though, even if these cases involved more complex connections

with two or three degrees of separation, there still would be no ne ed for the mass call-tracking

program to allow the government to discover the connections.

4

Telephony metadata is not unique. 9. The g overnment ar gues t hat t elephony m etadata is u nique in th at it i s “standardized and inter-connected,” and that these characteristics are “not common to most other types of records.” Gov’t PI Opp. 21. This suggestion is misleading. 10. As I e xplained in m y f irst d eclaration, Felten D ecl. ¶ 20, telephony m etadata i s easy to analyze because it is “structured,” or highly ordered. This fact is not unique, however, to telephony metadata. Many other t ypes of data are also structured and are therefore also eas y to analyze in the aggregate. 11. Virtually every t ype o f d igital c ommunications me tadata is s tructured. This includes, but is by no means limited to, email metadata, Internet-usage history, and Internet chat records. Many other types of records are also structured, including financial records, credit-card records, and ev en portions of m edical r ecords. This i s no c oincidence: industry experts often develop and agree upon a standardized form for the structure of metadata or transactional data. 12. Most of t hese s orts of structured r ecords a re i nterconnected. Communications metadata are i nterconnected i n a f airly obvi ous manner. But t he s ame i s t rue o f f inancial and medical r ecords. For example, p rescription r ecords me morialize th e identity of t he doc tor, t he identity of the patient, and the medicine prescribed. In a Medicare-fraud investigation, it would be possible to use prescription records to conduct a social-graph analysis, see Felten Decl. ¶ 48 (explaining s ocial graphs), of a p articular doctor’s pr escriptions. T he analysis m ight r eveal connections be tween s everal doc tors’ p rescription ha bits, t heir ove rlapping pa tients, their connections t o ot her doctors known to engage i n fraudulent practices, or divergences b etween their pr escription ha bits a nd t he pr escription h abits of ot her doc tors. See, e .g., The R ise o f Organized Crime in Health Care: Social Network Analytics Uncover Hidden and Complex Fraud
5

Schemes,

available at

http://www.writersstudio.com/samples/whitepapers/Lexis%20Nexis%20social%20network%20a

nalytics.pdf.

13. The same sort of social-graph analysis could be applied to financial or credit-card

records t o unc over or ganized c rime or f raud, b ecause t hose r ecords a re also i nterconnected. A

money-laundering i nvestigation, f or i nstance, c ould be nefit f rom t he a bility t o t race f unds

transferred from t heir source t hrough a s eries of s ham t ransactions a nd ultimately ba ck t o t he

original account or owner, in order to make those funds appear “clean.”

It would be feasible to quarantine the ACLU’s call records.

14. The government s tates t hat i t w ould t ake “ approximately s ix m onths,” G ov’t PI

Opp. 40, to devise a way in which to quarantine the ACLU’s call records if the ACLU’s request

for a preliminary injunction were granted. This is an implausible estimate for the time necessary

to develop the software to quarantine the ACLU’s call records.

15. There are a number of ways that the government could efficiently and effectively

quarantine t he ACLU’s call r ecords. For ex ample, the N SA c ould d eploy an a utomated s cript

that w ould s earch i ts da tabase f or t he A CLU’s c all r ecords a nd m ove t hose r ecords t o a nother

database t hat w ould not be a ccessed e xcept a t t he di rection of t he C ourt. It c ould a lso apply a

filter to its three-hop analysis such that any call to or from an ACLU number would be ignored

(as w ould a ny ot her c all dow n t he c hain f rom a ny s uch c all). Indeed, i t ap pears t hat t he N SA

already has the ability to filter its three-hop analysis to exclude certain phone numbers. See, e.g.,

David S. Kris, On the Bulk Collection of Tangible Things, 1:4 Lawfare Res. Pap. Ser. 1, 13–14

(Sept. 29, 2013) (“NSA technicians may access t he metadata to make the data more useable—

e.g., t o cr eate a ‘ defeat l ist’ to bl ock c ontact c haining t hrough ‘ high vol ume i dentifiers’

6

presumably associated with telemarketing or similar activity." (quoting orders of the Foreign Intelligence Surveillance Court)).
16. Both of these solutions are relatively simple from a technological perspective, and it is difficult to understand how either could take significant resources to implement, much less the six months estimated by the government. Dated: October 25, 2013
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 Case 1:13-cv-00881-RJL Document 26 Filed 11/14/13 Page 1 of 33

IN UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
LARRY KLAYMAN, et. al
Plaintiffs, v.
BARACK HUSSEIN OBAMA II, et. al

Defendants.

Civil Action No. 13-CV-851

LARRY KLAYMAN, et. al
Plaintiffs, v.
BARACK HUSSEIN OBAMA II, et. al

Defendants.

Civil Action No. 13-CV-881

PLAINTIFFS' REPLY IN SUPPORT OF THEIR MOTIONS FOR PRELIMINARY INJUNCTION

I. INTRODUCTION

"Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same." - President Ronald Reagan
The National Security Agency ("NSA") has been collecting mass amounts of telephony
and metadata in violation of the Patriot Act and the First, Fourth, and Fifth Amendments to the
U.S. Constitution. Despite the NSA's false arguments to the contrary, none of the Defendants'
actions are condoned under U.S. law, and the NSA has been acting in violation of the law for as
long as the NSA and PRISM data collection programs have been ongoing.

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The NSA has shown a pattern of lying to the American people, including by James Clapper, the Director of National Intelligence. In addition, the Obama administration has been caught lying in one scandal after another, including but not limited to Obamacare, Benghazi, the IRS, and Fast and Furious, just to name a few.
It was not until the actions of key NSA whistleblower Edward Snowden that the American people became aware of the illegal actions their own government was taking against them. Plaintiffs filed two lawsuits, the first challenging the constitutionality of the NSA's actions in collecting telephony metadata from Verizon as a result of secret Foreign Intelligence Surveillance Act court ("FISC") orders.
Subsequently, Plaintiffs' second lawsuit challenged the warrantless searches of the NSA's PRISM program1, which would monitor and intercept communications from internet companies such as Skype, Google, Youtube, AOL, Yahoo!, Facebook, Paltalk, AT&T, Sprint, and Microsoft. In collaboration with these internet companies, PRISM allows the NSA to directly access and retrieve private electronic data belonging to all users and customers of Defendants’ online services. As Snowden revealed, he, sitting at his desk, could "wiretap anyone, from you or your accountant, to a federal judge or even the president, if I had a personal email." Glen Greenwald, "XKeyscore: NSA tool collects 'nearly everything a user does on the internet'," The Guardian (July 31, 2013), http://www.theguardian.com/world/2013/jul/31/nsa-top-secretprogram-online-data. Even more outrageous, programs such as these were used to illegally wiretap Chancellor Angela Merkel of Germany. See Alison Smale and David E. Sanger, "Spying Scandal Alters U.S. Ties With Allies and Raises Talk of Policy Shift," The New York Times (November 11, 2013), http://www.nytimes.com/2013/11/12/world/spying-scandal-alters-us-ties-
1 The PRISM program did not receive a court order from the FISC.
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with-allies-and-raises-talk-of-policy-shift.html. The NSA has previously stated that programs such as these are required to ensure that terrorist organizations and located and stopped. Yet it is inconceivable that the wiretapping of Chancellor Merkel is related to the tracing of terrorist activities.
PRISM far exceeds statutory and constitutional authority, requiring no level of reasonable suspicion or probable cause while incredibly given the NSA direct and unfettered access to some of the largest databases in the world maintained by the NSA. The NSA has direct access to records detailing the daily activities, interactions, social, political, and personal associations, as well as private and intimate facts of millions of ordinary Americans.
Plaintiffs believed that as the truth was exposed that the government would cease performing these illegal actions. Yet as time went on, it became evident that the NSA was continuing with these secret programs, and in fact even more secret actions were exposed. New evidence had come to light every week demonstrating more and more violations by the NSA of the Plaintiffs rights. For this reason, Plaintiffs realized that a preliminary injunction would be necessary to ensure that no further illegal actions would be taken by the NSA.
In their opposition to Plaintiffs' Motion for Preliminary Injunction, the NSA characterized their massive data collection scheme as a lawful, effective counter-terrorism mechanism, closely monitored and safeguarded to ensure that the American people's rights are fully protected. Nothing could be further from the truth. From the actions of one key whistleblower, Edward Snowden, the American people have realized that the NSA is engaging in Orwellian surveillance that is simultaneously collecting data on hundreds of millions of phone and internet users.
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Plaintiffs, and this Court, cannot rely on the statements made by the NSA in their pleadings. All the evidence shows that the NSA has been acting in clear violation of the Patriot Act and the U.S. Constitution. Even if the Court were to accept the Defendants' affidavits, then the parties must go to discovery. The Plaintiffs have more than demonstrated the need for a preliminary injunction to be granted against the NSA's unlawful and unconstitutional actions. Plaintiffs are more than likely to succeed on the merits of this lawsuit, and the irreparable injury occurring toward the Plaintiffs in this lawsuit will continue for as long as this data collection program is allowed to act outside of the law.
Plaintiffs simply seek to have the NSA enjoined into following the law. Nothing more. A preliminary injunction, and a subsequent permanent injunction, are needed to ensure that the NSA discontinues acting in violation of the Patriot Act and the U.S. Constitution and nothing that the NSA has presented has in any way demonstrated that it has been acting in the scope of the law. The Court must respectfully similarly construct an oversight mechanism to ensure that the NSA is following the law. Without this injunctive relief, the NSA will continue to collect massive amounts of private information from hundreds of millions of the American people, in the largest violation of Patriot Act and the U.S. Constitution in history.
II. THE LAW A. THIS COURT HAS JURISDICTION TO HEAR THIS CASE
The U.S. Constitution directly vests the District Court with original jurisdiction to hear this case. Article III, Section 2, states that "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution..." U.S. Const. Art. III, Sec. 2.
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Jurisdiction is also proper under 28 USC § 1331, which states that, "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 USC § 1331. See also Sanders v. Murdter, 516 Fed. Appx. 4, 5 (D.C. Cir. 2013) ("Appellant is correct that the district court had federal-question jurisdiction over his claims arising under the Constitution") citing 28 USC § 1331; Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946).
Here, Plaintiffs' claims are arising directly out of the Patriot Act and the First, Fourth, and Fifth Amendments to U.S. Constitution, and this Court has original jurisdiction pursuant to the U.S. Constitution and 28 USC § 1331.
B. A PRELIMINARY INJUNCTION IS PROPER To obtain injunctive relief, Plaintiffs must only demonstrate (1) a substantial likelihood
of success on the merits; (2) that they are likely to suffer “irreparable injury” if preliminary relief is not granted; (3) that an order would not substantially injure other interested parties; and (4) that the public interest would be furthered by granting the order. Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010). These four factors must be viewed as a continuum where greater strength in one factor compensates for less in the other: “If the arguments for one factor are particularly strong, in injunction may issue even if the arguments in other areas are rather weak.” CityFed Financial Corp. v. Office of Thrift Supervision, 58 F.3d 739, 747 (D.C. Cir. 1995). a. Plaintiff's Have Demonstrated A Likelihood Of Success On The Merits 1. The NSA's Collection of Metadata is Not Authorized Under 215 of the Patriot Act
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In its current form, Section 215 allows the NSA to obtain an order compelling production of “any tangible things” upon a “showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation…to obtain foreign intelligence information not concerning United States person or to protect against international terrorism or clandestine intelligence activities." 50 U.S.C. §1861(b)(2)(A).
Section 215 of the Patriot Act does not provide the NSA with limitless investigative power. Rather, the language added by the Patriot Act prohibits the government from using the statute to obtain things that could not be obtained through analogous mechanisms, such as a subpoena duces tecum. Id. §1861(c)(2)(D).
Defendants’ unlawful surveillance further exceeds the authority provided under Section 215 because it involves surveillance that is prospective rather than retrospective. Section 215 permits the government to collect already-existing records, not to engage in ongoing surveillance. See 50 U.S.C. 1861(c)(1)-(2) (contemplating the “release” of tangible things” that can be “fairly identified” after a “reasonable period of time within which the tangible things can be assembled and made available.”). The Verizon Order requiring Verizon to provide the NSA access to extensive and voluminous communication records on an “ongoing daily basis” is an ongoing production obligation—an obligation that is effectively indefinite. This is clearly contrary to the language of the statute and cannot be reconciled with the plain language of Section 215 of the Patriot Act. Defendants have undeniably exceeded the bounds of their statutory and constitutional authority, and the Verizon Order, which ordered the ongoing production of prospective communication records, and thus is contrary to the plaintiff language of Section 215, clearly went far beyond the limitations set out in the Patriot Act.
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Defendants “secret interpretation” of Section 215 (or, more appropriately, absolute disregard of the limitations set forth in Section 215) has been evidenced through numerous instances of unlawful conduct, including repeatedly misleading the FISC, presenting inaccurate statements in court filings, making false misrepresentations, and exceeding the bounds of the surveillance as set forth in court orders. See Nicole Perlott, Jeff Larson, and Scott Shane, “N.S.A. Able to Foil Basic Safeguards of Privacy on Web,” The New York Times (Sept. 5, 2013) http://www.nytimes.com/2013/09/06/us/nsa-foils-much-internet-encryption.html. Even more outrageous is the number of misleading statements senior officials have made about domestic surveillance and the extent of the NSA’s false misrepresentations and blatant lies. These officials have engaged in obstruction of justice, with impunity. The National Intelligence Director, James Clapper, testified before Congress earlier this year that the NSA does not collect data on millions of Americans, which he now admits is a “clearly erroneous” lie. Clapper was asked during a hearing in March by Sen. Ron Wyden if the NSA gathered “any type at all on millions or hundreds of millions of Americans.”2 Clapper initially answered definitely: “No.” When pressed by Widen, Clapper changed his answer. “Not wittingly,” he said. “There are cases where they could inadvertently perhaps collect, but not wittingly.” Nothing could be further from the truth, as evidenced by the public disclosures of a highly classified “Verizon Order” in addition to Clapper subsequently apologizing for, and thus admitted, his clearly erroneous and untruthful answer.
The NSA's use of the PRISM program is an entirely different matter. Rather than limit its surveillance to a certain group of people that are subjects of an authorized investigation, the
2 See, “Clapper apologizes for ‘erroneous’ answer on NSA.” http://news.yahoo.com/clapperapologizes-erroneous-answer-nsa-221238030.html (summarizing Clapper’s misleading statements to Congress on the extent of U.S. surveillance on U.S. citizens).
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Case 1:13-cv-00881-RJL Document 26 Filed 11/14/13 Page 8 of 33
government has instead, without a warrant, collected and stored “metadata” of hundreds of millions of U.S. citizen internet users, regardless of whether or not they are persons of interest. It is simply inconceivable to conclude that all communication records and internet activities records for all customers of the major internet companies involved bear some relevance to an investigation, nor is there any reasonable grounds to believe that they may be relevant to an authorized investigation, in any conventional sense of that phrase. To the contrary, the vast majority of the communication records obtained through the broad sweeping surveillance are, in fact, not relevant to any authorized investigation. The government has not, and cannot, demonstrate, through specific and articulable facts, that the indiscriminate, unfettered, bulk collection of hundreds of millions of Americans’ internet records was a warranted and justified intrusion on privacy rights.
Despite the NSA's repeated false allegations about the safeguards put in place to protect the privacy of Americans, NSA personnel have been blatantly misusing the NSA’s surveillance power to spy on their paramours. NSA Inspector General George Ellard admitted that since 2003, there have been “12 substantiated instances of intentional misuse” of “surveillance authorities.” See Exhibit 1 -- Letter of NSA Inspector General George Ellard to Senator Chuck Grassley. About all of these cases involved an NSA employee spying on a girlfriend, boyfriend, or some kind of love interests. Jake Gibson, “Too tempting? NSA watchdog details how officials spied on love interests,” FOX News, (Sept. 27, 2013). http://www.foxnews.com/politics/2013/09/27/too-tempting-nsa-details-how-officials-spied-onlove-interests/.
Courts consider a threat to attorney-client communications an exceptional circumstance and have issued writs of mandamus to vacate production orders implicating privileged
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Case 1:13-cv-00881-RJL Document 26 Filed 11/14/13 Page 9 of 33
information. See, e.g., In re BankAmerica Corp. Sec. Litig., 270 F.3d 639 (8th Cir. 2001) (attorney-client); Admiral Ins. Co. v. U.S. Dist. Court for the Dist. of Ariz., 881 F.2d 1486 (9th Cir. 1989) (attorney-client); In re Fink, 876 F.2d 84 (11th Cir. 1989) (doctor-patient). In this case, the FISC issued a blanket order for all domestic telephone records. Such a boundless order sweeps up not just communications protected by attorney-client privilege, but also those falling under marital communications privilege, psychiatrist-patient, privilege, accountant-client privilege, and clergy-pertinent privilege.
The FISC does nothing more than rubber stamp the applications of the FBI. These proceedings offer nothing more than one sided arguments from those seeking the warrants. There are no adversaries to present alternative arguments, and innocent Americans have no advocate to argue against these widespread, illegal searches. The secrecy of the FISC court, and the limited number of personnel working within it, has created an incestuous atmosphere and not an adversarial proceeding in which the rights of the innocent are protected.
Furthermore, the FISC court has made findings of repeated violations of court orders. In 2011, the Honorable John D. Bates, then serving as chief judge on the FISC, admonished the NSA for repeatedly violating the requirements and limitations set forth by Court Orders, privacy laws, and the U.S. Constitution. As Judge Bates emphasized, “[c]ontrary to the government’s repeated assurances, N.S.A. has been routinely running queries of the metadata using querying terms that did not meet the standard for querying,” and that this requirement had been “so frequently and systematically violated that it can fairly be said that this critical element of the overall…regime has never functioned effectively.” Charlie Savage and Scott Shane, “Secret Court Rebuked N.S.A. on Surveillance,” The New York Times, (Aug. 21, 2013).
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Case 1:13-cv-00881-RJL Document 26 Filed 11/14/13 Page 10 of 33
http://www.nytimes.com/2013/08/22/us/2011-ruling-found-an-nsa-programunconstitutional.html?r=0.
Judge Bates further emphasized the NSA's unlawful conduct and egregious and illicit surveillance tactics, by stating:
"The Court is troubled that the government's revelations regarding NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program. In March, 2009, the Court concluded that it s authorization of NSA's bulk acquisition of telephone call detail records from [redacted] in the so-called "big business records" matter "ha[d] been premised on a flawed depiction of how the NSA uses [the acquired] metadata," and that "[t]his misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government's submissions…" Memorandum Opinion, In re Government's Ex Parte Submission of Reauthorization Certification and Related Procedures, Ex Parte Submission of Amended Certifications, and Request for an Order Approving Such Certification and Amended Certification (FISC Ct. Oct. 3. 2013) at fn. 14. The NSA has continuously engaged in a pattern of non-compliance with respect to the NSA’s handling of produced information, as demonstrated through publicly released FISC orders addressing the NSA’s surveillance and requests for production of information. In her Amended Memorandum Opinion, dated August 29, 2013, the Honorable Claire V. Eagan recognized and acknowledged Defendants’ repeated lack of adherence to minimization procedures implicit in the authorization to compel production of the documents, stating, “[t]he Court is aware that in prior years there have been incidents of non-compliance with respect to NSA’s handling of produced information.” Amended Memorandum Opinion, In Re Application of the Federal Bureau of Investigation For An Order Requiring the Production Of Tangible Things From [Redacted], (FISC Ct. Aug. 29, 2013) at n.9.
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Similarly, in an order issued by the FISC on March 2, 2013, questioning the credibility, trustworthiness, and ability for the NSA to fully comply with court orders, the Honorable Reggie B. Walton held, “[i]n light of the scale of this bulk [telephone records] collection program, the Court must rely heavily on the government to monitor this program to ensure that it continues to be justified…and that it is being implemented in a manner that protects the privacy interests of U.S. persons as required by applicable minimization procedures. To approve such a program, the Court must have every confidence that the government is doing its utmost to ensure that those responsible for implementation fully comply with the Court’s orders. The Court no longer has such confidence.” [emphasis added] In Re Production of Tangible Things [Redacted], Dkt. No: BR. 08-13 (FISA Ct. March 2, 2009).
The actions of the NSA went beyond scope of the Patriot Act, and as such these actions are unconstitutional as violations of the First, Fourth, and Fifth Amendments to the U.S. Constitution. 2. Plaintiffs Have Demonstrated a Fourth Amendment Violation
The NSA's PRISM surveillance program consists of warrantless searches, which “are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967); see United States v. Karo, 468 U.S. 705, 717 (1984). In fact, it authorizes the particular form of search that the authors of the Fourth Amendment found most offensive, leaving “too much to the discretion of the officer executing the order.” Berger v. New York, 388 U.S. 41, 59 (1967). Even if the warrant requirement does not apply, the government’s over broad, dragnet collection of Plaintiffs’ phone records and internet activities is unreasonable and, therefore, unconstitutional.
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“[T]he ultimate touchstone of the Fourth Amendment” is “reasonableness.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Reasonableness is determined by examining the “totality of circumstances” to “assess, on the one hand, the degree to which [government conduct] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Samson v. California, 547 U.S. 843, 848 (2006); see also Virginia v. Moore, 553 U.S. 164, 169 (2008). In the context of electronic surveillance, reasonableness demands that statues have “precise and discriminate” requirements and that the government’s surveillance authority be “carefully circumscribed so as to prevent unauthorized invasions of privacy.” Berger, 388 U.S. at 58.
The data obtained by the NSA through PRISM, done so without any court order, not only includes the contents of emails, chats, VoIP calls, and cloud-stored files, and more but also provides the Agency with online metadata, such as email logs, geolocation data (IP addresses), and web search activities, which can be just as revealing as the content. The NSA is using the troves of metadata gathered by PRISM to build comprehensive profiles of ordinary Americans, including their social connections, familial, political, professional, religious, and personal associations, speech, location, and public movements, while revealing personal, intimate, and, often times, extremely sensitive details about an individual.
Indeed, the NSA's collection of metadata and surveillance of telephonic communications lacks any indicia of reasonableness, as it significantly invades Plaintiffs’ privacy rights without any probable cause or individualized suspicion, is essentially indefinite, lacks any measure of particularity, instead gathering vast quantities of information about essentially every individual’s communication and activities. In fact, NSA’s warrantless surveillance is so extreme in its intrusive nature that it can hardly be construed as anything but unreasonable.
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In addition, the Verizon Order requires the production of every communication record, with no attempt to narrow the records obtained to those records that pertain to an ongoing investigation or that have some indication of suspicious activity. The Verizon Order does not differentiate between individuals that the NSA has a legitimate interest in monitoring and those that it does not, nor does it draw a distinction between those records relevant to an investigation and those that are not.
The NSA's opposition to Plaintiffs’ Fourth Amendment claim relies heavily on Smith v. Maryland, 442 U.S. 735 (1979). The NSA, however, fail to recognize that Smith does not stand for the proposition that the Constitution permits the indefinite collection of sensitive information about every single phone call made or received by U.S. residents In Smith, the Supreme Court upheld the installation of a “pen register” in a criminal investigation. The pen register in Smith, however, was very primitive—it tracked the numbers being dialed, but it did not indicate which calls were completed, let alone the duration of those calls. 442 U.S. at 741. It was in place for less than two days, and it was directed at a single criminal suspect. Id. at 737.
PRISM provides the NSA with direct access to all private electronic data belonging to all users of the internet services, with no attempt to narrow the records obtained to those records that pertain to an ongoing investigation or that have some indication of suspicious activity. The PRISM program does not differentiate between individuals that the NSA has a legitimate interest in monitoring and those that it does not, nor does it draw a distinction between those records relevant to an investigation and those that are not.
The PRISM program is essentially indefinite, particularly considering the lack of any temporal limitation and the fact that it has been ongoing, secretively, for the past seven years. PRISM provides the NSA with access to and potential production of online communication
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records on an ongoing daily basis, with absolutely no temporal deadline or any indication of when the program will terminate. To the contrary, the NSA apparently intends to continue the surveillance program indefinitely, and pursue the ongoing production of communication records of hundreds of millions of Americans for the foreseeable future.
With the Verizon order, the NSA seeks to track the records of millions of Americans, the vast majority of whom are not involved with any terrorist activities. Unlike in Smith, where the information from the pen register was not aggregated with information from other pen registers, telephony metadata encompasses far more than just the simple call records. As alleged by Plaintiffs, “Telephony metadata includes comprehensive communications routing information, including, but not limited to, session identifying information (e.g. originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifiers, telephone calling card numbers, and time and duration of call.” Compl. ¶¶27, 28. All this information goes beyond just a pen register. And can be easily used to track a person's name and identity. Further, the “call detail records” referred to in the Verizon Order likely include “[a]ny information that pertains to the transmission of specific telephone calls, including, for outbound calls, the number called, and the time, location, or duration of any call and, for inbound calls, the number from which the call was placed and the time, location, or duration of any call.” 47 C.F.R. §64.2003 (2012) (defining “call detail information”). Even more absurd, the NSA seeks to collect this information on an ongoing basis. The NSA cannot hide behind Smith and claim every one of its actions are legal under this one precedent, because their actions go far beyond what the U.S. Supreme Court allowed in Smith.
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The NSA also contends, again citing Smith, that individuals lack a constitutionally protected privacy interest in telephony metadata because that information has been shared with telephone companies. But the NSA’s reading of Smith fails to account for Jones and a host of Supreme Court cases recognizing that in sharing information with the public or a third party, individuals do not necessarily surrender their expectation of privacy. See United States v. Jones, 132 S. Ct. 945, 957 (2012) (Sotomayor, J., concurring); Id. at 964 (Alito, J., concurring); see also, e.g., Florida v. Jardines, 133 S. Ct. 1409 (2013) (odors detectable by a police dog that emanate outside of a home); Kyllo, 533 U.S. 27 (thermal signatures emanating from a home); Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001) (diagnostic-test results held by hospital staff). These cases confirm that an individual’s expectation of privacy in information does not hinge simply on whether she has shared it with another person. Were it otherwise, even the contents of one’s phone calls or email would be constitutionally unprotected, as both are shared with third parties. To contend that Smith controls here is to misunderstand the narrowness of the pen register surveillance upheld in that case, the breadth of the surveillance at issue here, or both.
3. Plaintiffs Have Demonstrated a First Amendment Violation. The Supreme Court has recognized the profound chilling effect of government
surveillance on First Amendment rights, given their potential to stifle free association and expression. As stated most recently in United States v. Jones, “awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.” United States v. Jones, 132 S. Ct. 945, 956 (2012). Thus, the courts have subjected such investigative methods to “exacting scrutiny” where they substantially burden First Amendment
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Rights. In re Grand Jury Proceedings, 776 F.2d 1099, 1102-03 (2d Cir. 1984); Clark v. Library of Cong., 750 F. 2d 89, 94 (D.C. Cir. 1984). Under this demanding standard, the NSA is required to show that its investigative methods are the least restrictive means of pursuing a compelling state interest. Clark, 750 F.2d at 95. “This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment right arises, not through direct government action, but indirectly as an unintended but inevitable result of the government’s conduct,” Elrod v. Burns, 427 U.S. 346, 362 (1976) (quoting Buckley v. Valeo, 424 U.S. 1, 65 (1976); see also Bates v. City of Little Rock, 361 U.S. 516, 523 (1960) (“Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.”)
The Supreme Court has frequently emphasized the importance of preserving the First Amendment rights of advocacy groups, recognizing that the NSA’s surveillance and investigatory activities infringe on associational rights protected by the amendment. In Gibson v. Florida Legislative Investigation Committee, the court ruled, “[t]he First and Fourteenth Amendment rights of free speech and free association are fundamental and highly prized and ‘need breathing space to survive.” 372 U.S. 539, 892 (1963), citing N.A.A.C.P. v. Button, 371 U.S. 415, 433 (1963). In NAACP v. Alabama ex rel. Patterson, the Supreme Court invalidated an Alabama order that would have required the NAACP to disclose its membership list. The Supreme Court wrote, in explaining why the protection of privacy is of particular Constitutional concern for advocacy organizations:
“[I]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute an effective restraint on freedom of association as the forms of governmental actions….were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one’s association…Inviolability of privacy in group association may in many
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circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” 357 U.S. 449, 462 (1958).
As discussed above, the NSA’s broad sweeping surveillance program, in both the telephony metadata collection and the PRISM program's data collection, raises precisely the same associational harm, since Plaintiffs are particularly vulnerable to this type of surveillance and the information collected, given their professions, political activism, public personas, and their activities, which often involve highly confidential matters and privileged information. Under PRISM, the NSA has direct access to records detailing the daily activities, interactions, social, political, and personal associations, as well as private and intimate facts of millions of ordinary Americans.
Further, the mass surveillance program and the broad-sweeping Verizon Order exposes private and sensitive information regarding Plaintiffs’ communications and contacts, which consequently directly impacts their ability to continue their advocacy activities.
In light of his public advocacy in matters of public interests and concern, Plaintiff Klayman regularly communicates with individuals who wish to come forward with evidence of government wrongdoing, such as depriving them of their civil rights. Likewise, Plaintiff Klayman communicates with these individuals, who may ultimately become clients, regarding potential legal representation and bringing a legal action to redress their harm. Plaintiff Klayman also regularly engages in telephone calls with clients he is already representing, where he discusses legal matters and advises the client, whistleblowers, and others regarding legal strategies and techniques. Similarly, Plaintiffs Charles and Mary Ann Strange, who are activists in advocating change in U.S. military policies and practices, routinely communicate, via phone to clients, potential clients, supporters, and others, regarding the advocacy plans, tactics,
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strategies and goals. Given the nature of their advocacy, and their inherent affects on government policy and acts, Plaintiffs’ communication records contain confidential and even legallyprivileged discussions that were never intended to be collected, monitored, or heard and recorded by the NSA, particularly as Plaintiffs’ advocacy often espouse dissident beliefs than that of the Obama administration.
All of these individuals, particularly those who seek legal advice from Plaintiff Klayman, have an interest in maintaining the confidentially of their communications, and all of these individuals contribute significantly to Plaintiffs’ First Amendment activities. It is indisputable that any person would be hesitant to approach Plaintiffs in regard to their advocacy or legal representation, particularly with the knowledge that the NSA receives and records every telephone call through this surveillance program. Thus, the NSA's mass call-tracking surveillance program has inevitable had a chilling effect, as it allows the government to uncover anonymous tips or attempts by individuals to privately share sensitive information with Plaintiffs. Consequently, the governments’ surveillance program is directly inhibiting and deterring crucial sources of information for Plaintiffs’ work.
4. Plaintiffs Have Demonstrated a Fifth Amendment Claim. Plaintiffs have an individual privacy interests in their internet communications online
activities, which reveals sensitive, confidential information about their personal, political, and religious activities and which Plaintiffs do not ordinarily disclose to the public or to the government. This privacy interest, particularly in their communications, is protected by numerous state and federal laws well as the substantive and procedural right to due process under the Fifth Amendment.
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Plaintiffs’ Fifth Amendment constitutional rights were clearly violated the moment Defendants provided and the NSA obtained direct and unlimited access and authority to obtain vast quantities of communication records contained in Defendants’ vast databases, which inherently includes communication records belong to Plaintiffs. Under PRISM, Defendants have illicitly provided the NSA with blanket access to their vast databases, allowing the NSA to secretively collect, acquire, retain, search, and use the bulk private internet data and online communication information of Plaintiffs, without providing any notice to Plaintiffs, or any process by which Plaintiffs could seek redress. Moreover, the NSA’s surveillance was conducted without any individualized suspicion, probable cause, or other governmental interest sufficient or narrowly tailored to justify the invasion of Plaintiffs’ due process rights. Prior to The Guardian’s and The Washington Times publication of the disclosures of NSA whistleblower, Edward Snowden, this secret surveillance was undisclosed to the public, and Plaintiffs had no notice and no reasonable opportunity to discover the existence of the surveillance program, let alone ascertain where a reasonable expectation of privacy from government intrusion begins and ends and specifically, what conduct may subject them to electronic surveillance.
b. Issuance Of A Preliminary Injunction Will Not Substantially Injure Defendants . In contrast to the substantial irreparable harm facing Plaintiffs, there can be no credible
claim of harm to Defendants. Defendants cannot be said to be “burdened” by a requirement to comply with the law. c. The Balance Of Harm And The Public Interest Supports The Implementation Of A Preliminary Injunction.
The public interest prong is more than met because “there is an overriding public interest…in the general importance of an agency’s faithful adherence to its statutory mandate.”
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Jacksonville Port Auth. V. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977). The public has a substantial interest in Defendants following the law. See, e.g., In re Medicare Reimbursement Litigation, 414 F.3d 7, 12 (D.C. Cir. 2005 (Additional administrative burden “[would] not outweigh the public’s substantial interest in the Secretary’s following the law.”)
Given Defendants’ defects in complying with the law, and with basic notions of the right to privacy, in addition to their substantial contribution to significant constitutional violations, the public interest will be served if this court preliminarily enjoins Defendants from continuing their warrantless, unlawful participation in PRISM. In light of the fact that PRISM poses legitimate and unaddressed constitutional questions, a preliminary injunction to allow for the adjudication of these issues clearly serves the public interest. See Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106, 130 (D.D.C. 2012), (holding that "there is undoubtedly . . . a public interest in ensuring that the rights secured under the First Amendment . . . are protected"); O'Donnell Const. Co. v. District of Columbia, 963 F.2d 420, 429 (D.C. Cir. 1992) (holding that "issuance of a preliminary injunction would serve the public's interest in maintaining a system of laws" free of constitutional violations). See also Seretse-Khama v. Ashcroft, 215 F. Supp. 2d 37, 54 (D.D.C. 2002), (holding that the public interest is served by a court order that avoids "serious constitutional risks"); N. Mariana Islands v. United States, 686 F. Supp. 2d 7, 21 (D.D.C. 2009) (noting "the general public interest served by agencies' compliance with the law"); Cortez III Serv. Corp. v. Nat'l Aeronautics & Space Admin., 950 F. Supp. 357, 363 (D.D.C. 1996) (public interest served by enforcing constitutional requirements).
C. PLAINTIFFS HAVE STANDING
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Plaintiffs have standing under Article III. They have suffered an injury because they have been, at all material times, been consumers, users, and U.S. citizens who are subscribers, users, customers, and otherwise avail themselves to Facebook, Yahoo, Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT&T, and/or Apple. Plaintiffs' communications have already been monitored by the NSA under the Verizon Order and/or the PRISM program and their communications continue to be monitored. The injury is plainly traceable to the conduct they challenge—that is, to the NSA’s collection of their call records as well as their internet communications and activities. And the injury would be redressed by the relief they seek— principally, an injunction against their mass warrantless surveillance tactics. The practice is akin to snatching every American’s address book—with annotations detailing whom they spoke to, when they talked, for how long, and from where. The collection of Plaintiffs’ communication records, specifically telephonic and online metadata belonging to Plaintiffs, is itself an injury sufficient for Article III; indeed, the collection of Plaintiffs’ records constitutes a gross invasion of their privacy.
The Defendants have acknowledged that they have engaged in such metadata collection. Specifically, in regard to the PRISM surveillance program, the U.S. government has essentially confirmed the existence of the wide-ranging program known as PRISM, which allows the NSA to directly tap into consumer data from telephone and internet communication service providers, including Apple, Google, Yahoo!, Microsoft, Facebook, Skype, and others. See, i.e. HJC Hearing at 29:33–36:00 (testimony of John C. Inglis, NSA Deputy Director).
In addition, the Primary Order/Verizon Order indicates that every time the NSA queries the call-records database, it reviews everyone’s records—Plaintiffs’ among them—to determine
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whether they, their contacts, or their contacts’ contacts are connected to a phone number that the NSA deems suspicious. See Primary Order at 6–7, 11.
In any event, there can be no dispute that the bulk collection of Plaintiffs’ call records gives them the stake in this litigation that Article III requires. Courts frequently analyze thirdparty challenges to records requests at the merits stage, rather than as a question of standing. See, e.g., Local 1814, Int’l Longshoremen’s Ass’n v. Waterfront Comm’n of N.Y. Harbor, 667 F.2d 267, 270 (2d Cir. 1981).
Plaintiffs’ First Amendment claim asserts a direct intrusion into their associational privacy, not just a chilling effect. Compl. ¶¶ 3, 35; This intrusion and the resulting injury is complete when the NSA collects Plaintiffs’ communication records—regardless whether the surveillance ultimately dissuades any third party from communicating with them. Plaintiffs suffer a further, discrete injury because of the program’s chilling effect on their key contacts and sources. The NSA's monitoring has and will continue to dissuade crucial contacts from associating with Plaintiffs.
The government seems to believe that there is something implausible about the notion that the NSA’s surveillance might chill lawful expression and association, but “[i]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective . . . restraint on freedom of association.” NAACP v. Alabama, 357 U.S. 449, 462 (1958); see also International Longshoremen's Asso. v. Waterfront Com. of New York Harbor, 667 F.2d 267 (2d Cir. 1981); Talley v. California, 362 U.S. 60, 64 (1960).
Further, as the Supreme Court has observed, the definition of Fourth Amendment rights “is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.” Minnesota v. Carter, 525 U.S. 83, 88 (1998); accord Rakas v. Illinois, 439 U.S.
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128, 139 (1978). In any event, there can be no dispute that the bulk collection of Plaintiffs’ call records gives them the stake in this litigation that Article III requires. Courts frequently analyze third-party challenges to records requests at the merits stage, rather than as a question of standing. See, e.g., Local 1814, Int’l Longshoremen’s Ass’n v. Waterfront Comm’n of N.Y. Harbor, 667 F.2d 267, 270 (2d Cir. 1981); Koch v. Greenberg, No. 07 Civ. 9600, 2009 WL 2143634, at *3 n.1 (S.D.N.Y. July 14, 2009).
1. Plaintiffs Have Demonstrated Irreparable Harm. The Defendants conveniently ignore well-established case law holding that a colorable
constitutional violation gives rise to a showing of irreparable harm. See Mills v. District of Columbia, 571 F.3d1304, 1312 (D.C. Cir. 2009) (a constitutional violation and loss of constitutional protections "'for even minimal periods of time, unquestionably constitutes irreparable injury'") (quoting Elrod v.Burns, 427 U.S. 347, 373 (1976)); see also Seretse-Khama v. Ashcroft, 215 F. Supp. 2d 37, 53 (D.D.C. 2002) (deprivation of constitutional protection "is an undeniably substantial and irreparable harm").
Plaintiffs have demonstrated the chilling effects of the Defendants' actions on the Plaintiffs. Plaintiff Charles Strange's son, Michael Strange, was a cryptologist technician for the National SecurityAgency ("NSA") and support personnel for Navy SEAL Team VI. Strange Aff. at ¶5. Plaintiffs have been vocal about their criticism of President Obama as commander-inchief, his administration, and the U.S. military, particularly in regard to the circumstances surrounding the shoot down of the helicopter Michael Strange was in, which resulted in the death of Michael and other Navy SEAL Team VI and other special operations members. Strange Aff. at ¶¶9, 10. Plaintiffs hold press conferences and lobby in Washington, D.C. as advocates for their
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son and to obtain justice for him, as well as to change the policies and orders of President Obama and the U.S. military’s acts and practices, which contributed to their son’s death. Strange Aff. at ¶10. Plaintiffs believe and advocate that the government is responsible, whether negligently or intentionally, for the death of their son. Strange Aff. at ¶9.
Defendants’ mass data collection and call-tracking surveillance programs have directly and significantly impacted Plaintiffs, Charles Strange and his wife, Mary Ann Strange, and their abilities to communicate via telephone, email, or through any other means, given their valid concern that their confidential and private communications will be overheard or obtained by the NSA’s surveillance program. Strange Aff. at ¶11. In fact, there have, on several occasions, been times when Plaintiff Charles Strange received text messages from friends, relatives, and others who later informed Plaintiffs that they had never sent him those messages. Strange Aff. at ¶14. Additionally, various other contacts have received text messages that seemingly appear to have been sent from Plaintiff Charles Stranges’ phone number, even though he had never sent said messages. Strange Aff. at ¶15. More shocking, Plaintiff Charles Strange received an email that appeared to be from Michael. Strange Aff. at ¶13. After having the email reviewed and analyzed, it was determined that the email from his son was a hoax orchestrated by the NSA and the other Defendants. Id. In July of 2013, Mary Ann Strange was on the computer when it abruptly photographed her (through some form of abusive surveillance since her computer does not have a built-in camera), and falsely accused Plaintiff Mary Ann Strange of violating “Copyright and Related Rights Law.” Strange Aff. at ¶17. Without a built-in camera, a computer user cannot take a picture of him or herself. Strange Aff. at ¶17. The intrusive and highly secretive surveillance that the government is performing on Plaintiffs has, justifiably, made them unable to communicate freely with friends, family, and other contacts, whether on the phone, through texts
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messages, or via email and put them in great for themselves and their family. Strange Aff. at ¶18, 19. The government’s surveillance activities have, consequently, chilled Plaintiffs’ speech, and prohibited their ability to associate, to lobby Congress, and to be politically active. Strange Aff. at ¶¶18, 19, 20.
Plaintiff Klayman was similarly affected by the illegal actions of the Defendants. Plaintiff Klayman has gained national exposure and recognition through his strong public interest advocacy in furtherance of ethics in government and is publicly known as a civil and individual rights activists. Klayman Aff. at ¶4. As an attorney, Plaintiff Klayman routinely communicates by phone and by email with existing and potential clients about their legal representation, discusses confidential issues, and engages in legally privileged attorney-client and other privileged or private communications regarding ongoing legal proceedings. Klayman Aff. at ¶¶5, 10. Defendants’ illegal surveillance directly and significantly impacts Plaintiff Klayman’s ability to communicate via telephone, email, and otherwise, out of fear that his confidential, private, and often legally privileged communications will be overheard or obtained by the NSA’s surveillance program. Klayman Aff. at ¶¶9, 10. Defendants’ overly broad, highly intrusive illicit surveillance program, as well as their limitless indiscriminate invasion of Americans’ privacy rights, undoubtedly will dissuade, and has dissuaded, potential clients and others from contacting Plaintiff Klayman, fearing reprisal, and, in addition, compromises Plaintiff Klayman’s ability to serve their clients’ interest and Freedom Watch’s organizational goals. Klayman Aff. at ¶10.
Because he now fears that his telephone conversations and emails are being monitored -because they are -- Plaintiff Klayman no longer engages in sensitive attorney-client conversations over the phone or by email. Exhibit 2 -- Supplemental Klayman Aff. at ¶13. Plaintiff Klayman has been forced to travel to meet with clients in order to ensure that his
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conversations are indeed private. Supplemental Klayman Aff. at ¶14. This constant travel has come as a great expense to Plaintiff Klayman. Id.
Similarly, the Defendants have illegally violated the expectations of privacy of Plaintiffs Ferrari and Garrison who illegally and without a warrant had their internet records searched. Both Plaintiffs are prominent private investigators, who, as part of their work, communicate electronically, with associates and other members of the public regarding various matters, including work related discussions. Compl. ¶¶13, 14. Additionally, both Plaintiffs' emails contain private details, discussions and communications, and often include confidential documents and information. Id. Plaintiff Michael Ferrari is a subscriber, consumer, and user of Google/Gmail, Yahoo!, and Apple. Compl. ¶13. Plaintiff Matthew Garrison is a consumer and user of Facebook, Google, YouTube, and Microsoft. Compl. ¶14. Thus, both Plaintiffs have indisputably been subject to the NSA's warrantless searches of their online communications and internet activities. The Defendants' actions have similarly caused injury to these Plaintiffs as they can no longer communicate freely through email and telephone.
Plaintiffs have more than established the substantial harm that is being caused to them by the actions of the NSA through the PRISM program and the telephony metadata collection.
D. Standard of Evidence For a Preliminary Injunction. Preliminary Injunctions are customarily granted on the basis of procedures that are less
formal and evidence that is less complete than in a trial on the merits, and therefore the party moving for the preliminary injunction is not required to prove his case in full at a hearing. See Attorney General of Oklahoma v. Tyson Foods, Inc., 565 F3d769 (10th Cir. 2009). The Plaintiffs have not had the opportunity to conduct discovery and once the lawsuit moves to the
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discovery phase the Plaintiffs will be able to determine to what extent Defendants have in fact been conducting illegal surveillance of Plaintiffs.
Plaintiffs have presented the statements of key whistleblower Edward Snowden. Pursuant to Federal Rules of Evidence Rule 804, the Statements of Edward Snowden are not excluded by the hearsay rule if the declarant is unavailable as a witness: “Declaration Against Interest: A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”
Plaintiffs have additionally requested the authentication of several formerly classified documents in the form of a Touhy request that has been submitted to the NSA. See Touhy v. Ragen, 340 U.S. 462 (1951); Exhibit 3 -- NSA Touhy request.
E. Plaintiffs' Claims Are Not Precluded By Statute. Plaintiffs are capable of enforcing the violations of 18 USC § 2702 through the
Administrative Procedures Act ("APA"), 5 USC § 706. Defendants argue that the provision allowing recipients to challenge Section 215 orders, added in 2006, manifests a congressional intent to bar all other claims and relief under this section. 50 U.S.C. § 1861(f). Yet this argument simply turns Congress’s attempt to clarify the availability of one remedy into an attempt to subtract the rest of the remedies. Defendants can cite to no evidence of such an intent. As the Supreme Court observed last year, “if the express provision of judicial review in one section of a
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long and complicated statute were alone enough to overcome the APA's presumption of reviewability for all final agency action, it would not be much of a presumption at all.” Sackett v. EPA, 132 S. Ct. 1367, 1373 (2012). The government argues that the addition of 50 U.S.C. § 1861(f) in 2006 was a deliberate effort to imit the right to contest the legality of Section 215 production orders to recipients, but the legislative history shows that Congress added 50 U.S.C. § 1861(f) merely to “clarify” an already-existing remedy. In doing so, Congress gave no indication that it intended to displace other existing remedies, including those provided by the APA. See H.R. Rep. 109-174, pt. 1, at 6, 77, 106 (repeatedly describing the addition of this subsection as an effort to “clarify” the statute). Indeed, at the time, the government concurred in the view that this addition did not represent a significant change in the law. See, e.g., Implementation of the USA PATRIOT Act: Hearing Before the H. Subcomm. on Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 109th Cong. at 106 (2005) (“Patriot Act HJC Hearing”) (testimony of Kenneth Wainstein, U.S. Attorney for the District of Columbia).
This change was made for a simple reason: Congress made explicit recipients’ ability to go before a judge to challenge a production order, as is customary with ordinary subpoenas. See, e.g., Fed. R. Crim. P. 17(c); Patriot Act HJC Hearing at 65 (statement of Robert Khuzami) (amendment designed to “place Section 215 proceedings on a par with grand jury proceedings”). This was done because the legal process available to recipients of records demands under a similar statute, 18 U.S.C. § 2709 (national security letters), had been the subject of litigation. See, e.g., Doe v. Ashcroft, 334 F. Supp. 2d 471, 507 (S.D.N.Y. 2004); Patriot Act HJC Hearing at 105-06, 140-42 (discussing Doe). But in the course of clarifying the procedures for raising such an objection under Section 215, Congress nowhere altered—or even considered—the APA’s background presumption, especially as it applies to the subjects of record requests. As a matter
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of statutory structure, nothing in the recipient-review procedure bars the traditional APA review that Plaintiffs seek here—rather, they are complimentary remedies. Recipients may challenge a Section 215 production order but, as with subpoenas, this does not inevitably imply an intent to bar the subject of a records request from bringing her own challenge.
Courts routinely allow third parties to contest subpoenas on grounds other than privilege—including their asserted privacy interests. Arias-Zeballos v. Tan, No. 06 Civ. 1268, 2007 WL 210112, *1 (S.D.N.Y. Jan. 25, 2007) (listing cases). Relying on Block v. Community Nutrition Institute, 467 U.S. 340, 349 (U.S. 1984), the Defendants argue that because Section 215 provides for recipient challenges, it impliedly precludes judicial review “at the behest of other persons,” like Plaintiffs.
But as courts have recognized, this assumption is too simplistic. In particular, the D.C. Circuit has cautioned against reading Block “too broadly,” especially where the interests of the various parties may diverge or the statute bears directly on the class to which the plaintiff belongs. Ark. Dairy Co-op Ass’n, Inc. v. U.S. Dep’t of Agr., 573 F.3d 815, 822–23 (D.C. Cir. 2009). The court did so in a case involving the very same statute that the Supreme Court interpreted in Block, finding that the APA afforded a right of review to milk producers despite the fact that the statutory scheme at issue granted such a right only to milk handlers. Id. at 823; see Koretoff v. Vilsack, 614 F.3d 532, 536–40 (D.C. Cir. 2010); Council for Urological Interests v. Sebelius, 668 F.3d 704, 710 (D.C. Cir. 2011) (distinguishing Block where agency action had “direct” and “substantial” impact on plaintiffs); see also Pottawatomi, 132 S. Ct. at 2209 (rejecting comparison to Block). Even in Block itself, the Supreme Court evaluated the availability of judicial review under the APA by taking into account a proxy’s willingness to pursue a plaintiff’s interests. 467 U.S. at 352.
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These concerns apply to Section 215. Indeed, “no recipient of any Section 215 Order has challenged the legality of such an Order.” See 2013 FISC Opinion at 15– 16. That is perhaps because recipients are shielded from liability for complying with such orders, see 50 U.S.C. § 1861(e), and thus their interests diverge from those of the orders’ subjects. See Strengthening Privacy Rights and National Security: Hearing Before the S. Comm. on the Judiciary, 113th Cong. at 4 (2013), http://bit.ly/19CVPgl (statement of Marc Zwillinger, Yahoo! counsel) (describing “institutional pressures and procedural disincentives against levying a [provider] challenge” to a FISC order).
The cases discussed above demonstrate that a statute’s silence with respect to one class of plaintiffs or claims does not invariably imply that those plaintiffs have no road to court. The government’s “effort to transform silence into implicit prohibition would seriously undermine Congress’s effort in the APA to authorize specific relief against the United States.” U.S. Army Corps of Eng’rs, 667 F.3d at 775. It takes more to show “clear and convincing evidence” of Congress’s intent to strip the APA’s remedies and preclude review. For instance, in Dew v. United States, 192 F.3d 366, 371–74 (2d Cir. 1999), the Second Circuit carefully analyzed the comprehensiveness of the statutory scheme at issue, the express signs of intent in the legislative history, and the parallel structure of a similar statute—ultimately concluding that each of these factors favored preclusion. In this case, one can hardly say the same.
There are clear examples of when Congress has explicitly intended to create a comprehensive and exclusive remedial scheme, such as in the Stored Communications Act, 18 USC §§ 2701–2712. In In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp. 2d 114 (E.D. Va. 2011), the court considered the carefully drawn remedies that the SCA makes available to internet-service subscribers and it found that the statute barred a
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Twitter subscriber’s pre-execution challenge to certain disclosure orders, pointing to the SCA’s plain statement that “[t]he remedies and sanctions described in this chapter are the only judicial remedies and sanctions for non-constitutional violations of this chapter.” Id. at 129 (quoting 18 U.S.C. § 2708). Contrary to this holding, Congress never intended to preclude claims under Section 215, and nothing in the language of the statute or the legislative history proves otherwise.
III. CONCLUSION As set forth in the accompanying proposed memorandum opinion and order, the Plaintiffs ask for the following: (1) that the Court preliminary restrains and enjoins Defendant NSA, its agents, servants, employees, attorneys, and all others in active concert or participation with the NSA, from implementing surveillance procedures, tactics, and programs that exceed statutory authority and constitutional provisions; (2) that the NSA is respectfully ordered to comply with any and all laws regarding the government's authority, power, and limits in conducting such mass warrantless domestic surveillance, including, but not limited to, Section 215 of the Patriot Act, Section 702 of the FISA Amendment Act, and the provisions of the U.S. Constitution; and (3) that within twenty (20) days of this date, the NSA submit declarations and any pertinent records, reports, and/or other documents to the Court regarding compliance with any and all minimization procedures implemented to prevent further warrantless collection of records belonging to U.S. citizens without reasonable suspicion or probably cause, any and all incidences of non-compliance, identification of any and all "targets" subject to the NSA's surveillance, and all other relevant reports, risk assessments, memoranda, and other documents. In the event that the records, reports, and/or other documents contain classified information, Defendants shall present such information in camera to the Court.
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Dated: November 14, 2013

Respectfully submitted,
/s/ Larry Klayman Larry Klayman, Esq. Attorney at Law D.C. Bar No. 334581 2020 Pennsylvania Ave. NW, Suite 800 Washington, DC 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 14th day of November, 2013, a true and correct copy of the foregoing Reply in Support of Motion for Preliminary Injunction (Civil Action Nos. 13-cv- 851 & 13-cv-881) was submitted electronically to the District Court for the District of Columbia and served via CM/ECF upon the following:
James J. Gilligan Special Litigation Counsel Civil Division, Federal Programs Branch U.S. Department of Justice P.O. Box 883 Washington, D.C. 20044 (202) 514-3358 Email: James.Gilligan@usdoj.gov
James R. Whitman U.S. DEPARTMENT OF JUSTICE P.O. Box 7146 Washington, DC 20044 (202) 616-4169 Fax: 202-616-4314 Email: james.whitman@usdoj.gov
Randolph D. Moss WILMER CUTLER PICKERING HALE & DORR LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 (202) 663-6640 Fax: (202) 663-6363 Email: randolph.moss@wilmerhale.com
Attorneys for Defendants.
Respectfully submitted,
/s/ Larry Klayman Larry Klayman, Esq. D.C. Bar No. 334581 Klayman Law Firm 2020 Pennsylvania Ave. NW, Suite 345 Washington, DC 20006 Tel: (310) 595-0800
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 Case 1:13-cv-00881-RJL Document 29 Filed 11/17/13 Page 1 of 3

IN UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
LARRY KLAYMAN, et. al
Plaintiffs, v.
BARACK HUSSEIN OBAMA II, et. al

Defendants.

Civil Action No. 13-CV-881

MOTION FOR LEAVE TO FILE SUPPLEMENTAL AFFIDAVIT
Plaintiffs hereby move this Court for leave to file the supplemental affidavit of David Siler (Attached as Exhibit 1) and as grounds therefor would show
1. On October 28, 2013 the Plaintiffs filed a Motion for Preliminary Injunction in the above styled lawsuit.
2. This Court has set a hearing on the Motion for Preliminary Injunction on November 18, 2013.
3. New information has come to light within the past few hours from a computer expert, David Siler, that corroborates the previous affidavit of Charles Strange, which was filed in conjunction with the Motion for Preliminary Injunction, that the NSA and the government are spying on the Plaintiff and violating the Patriot Act, the Foreign Intelligence Surveillance Act, and the U.S. Constitution.
4. Mr. Siler has created an affidavit and the Plaintiffs have attached the Affidavit of Mr. Siler as Exhibit 1.

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5. Mr. Siler’s affidavit will aid the Court and provide further evidence to the Court that a preliminary injunction is warranted in this lawsuit.
6. Neither party will be prejudiced as a result of the filing of this affidavit. 7. The Plaintiffs contacted Defendants’ counsel to seek consent for this motion. The
Defendants’ counsel have not indicated whether they consent to this motion as of the time of this filing, which is being made in anticipation of the hearing on November 18, 2013.
WHEREFORE, the Plaintiffs respectfully request that this Court grant leave to the Plaintiffs to file the supplemental affidavit of David Siler, which is attached as Exhibit 1.

Dated: November 18, 2013

Respectfully submitted,
/s/ Larry Klayman Larry Klayman, Esq. Attorney at Law D.C. Bar No. 334581 2020 Pennsylvania Ave. NW, Suite 800 Washington, DC 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com

2

Case 1:13-cv-00881-RJL Document 29 Filed 11/17/13 Page 3 of 3

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 1st day of November 17, 2013 a true and correct copy of the foregoing Motion For Leave To File Supplemental Affidavit (Civil Action No. 13-cv- 881) was submitted electronically to the District Court for the District of Columbia and served via CM/ECF upon the following:
James J. Gilligan Special Litigation Counsel Civil Division, Federal Programs Branch U.S. Department of Justice P.O. Box 883 Washington, D.C. 20044 (202) 514-3358 Email: James.Gilligan@usdoj.gov
James R. Whitman U.S. DEPARTMENT OF JUSTICE P.O. Box 7146 Washington, DC 20044 (202) 616-4169 Fax: 202-616-4314 Email: james.whitman@usdoj.gov

Attorneys for Defendants.

Respectfully submitted, /s/ Larry Klayman Larry Klayman, Esq. D.C. Bar No. 334581 Klayman Law Firm 2020 Pennsylvania Ave. NW, Suite 345 Washington, DC 20006 Tel: (310) 595-0800

3

 
 Case 1:13-cv-00881-RJL Document 31 Filed 11/23/13 Page 1 of 14

Case 1:13-cv-00881-RJL Document 31 Filed 11/23/13 Page 2 of 14

Case 1:13-cv-00881-RJL Document 31 Filed 11/23/13 Page 3 of 14

Case 1:13-cv-00881-RJL Document 31 Filed 11/23/13 Page 4 of 14
DAVID M. SILER dave@davesiler.com 245 North Carolina Ave Pasadena, MD 21122 443-520-3524
Dataprise Rockville, MD Sr. Network Engineer April 2011 – Present · Serving as both Sr. Network Engineer and Sr. Network Administrator on multiple networks using Windows
2000 through Windows 2012 server networks with RAID 1, 3, & 5 · Programming & maintaining Juniper, Cisco, Sonic Wall Juniper and, Netgear, routers and switches, including
setting up the NAT and maintaining internal and external routing tables. · Configuring, maintaining access control and security for VPN accounts for hardware and software VPNs · Proposing, building, configuring and maintain MS Exchange 2003, 2007, 2010 and 2012 servers · Proposing, building, configuring and maintaining Remote Web Workplace, OWA and 3rd party devices · Building, servicing, and maintaining Windows 2003, 2008, 2010 & 2012 Advanced servers. Configuring
Raids, and maintaining backups. (On site and with remote access.) o Managing Systems and Group Policies o Managing and creating logon script o Account Migrations across the domain o Managing Trust Relationships o Setting up and Maintaining backups using Backup Exec Ver. 9-2012
· Administrating user’s database for domain access and accounts that include local access, OWA, and web access.
· Recommending, configuring, and deploying global anti-virus and anti-spyware solutions · Reviewing server logs and setting server policy. · Building, installing new workstations for new employees: Including punching new CAT 5 – Cat 6 cabling,
and custom building LAN cables. · Assembling, configuring, and maintaining ESXI 5.0 based virtual server including performing P2V
conversions to SAN with High Availably and failover. · Versed in a wide variety in multiple hardware platforms ranging from Pentium 4 computers to current
technologies that include up to Windows 2012 and SBS 2011 servers. · Maintaining, installation, trouble shooting, & repair, of any and all PC hardware, printer, or business software. · Customer relations and communications pre and post job completion. · Completing client assessment reviews for new and current customers for recommendations of upgrades of
infrastructure.
DP Solutions Columbia, MD Network Engineer June 2008 – April 2011 · Serving as both Network Engineer and Network Administrator on multiple networks using Windows 2000
through Windows 2008 server networks with RAID 1, 3, & 5 · Programming & maintaining Juniper, Cisco, Sonic Wall and, Netgear, routers and switches, including setting
up the NAT and maintaining internal and external routing tables. · Configuring, maintaining access control and security for VPN accounts for hardware and software VPNs · Proposing, building, configuring and maintain MS Exchange 2003, 2007 and 2010 servers · Proposing, building, configuring and maintaining Blackberry Enterprise Servers · Building, servicing, and maintaining Windows 2003 & 2008 Advanced servers. Configuring Raids, and
maintaining backups. (On site and with remote access.) o Managing Systems and Group Policies o Managing and creating logon script o Account Migrations across the domain o Managing Trust Relationships

Case 1:13-cv-00881-RJL Document 31 Filed 11/23/13 Page 5 of 14

o Setting up and Maintaining backups using Backup Exec Ver. 9-12 · Administrating user’s database for domain access and accounts that include local access, OWA, and web
access. · Recommending, configuring, and deploying global anti-virus and anti spyware solutions · Reviewing server logs and setting server policy. · Building, installing new workstations for new employees: Including punching new CAT 5 – Cat 6 cabling,
and custom building LAN cables. · Assembling, configuring, and maintaining ESXI 4.0 based virtual server including performing P2V
conversions. · Versed in a wide variety in multiple hardware platforms ranging from 8086 computers to current technologies
that include up to Windows 2008 servers. · Maintaining, installation, trouble shooting, & repair, of any and all PC hardware, printer, or business software. · Customer relations and communications pre and post job completion. · Completing client assessment reviews for new and current customers for recommendations of upgrades of
infrastructure. · Notable Mention: Have received many thanks you emails from clients and have been in the company news
letter on many occasions due to my customer service ability and client management skills. · Notable Accomplishments: Tested and certified in: Juniper SA-700, IBM System x BladeCenter Technical
Support V5, IBM Certified Specialist - High Volume Storage Fundamentals V,
IBM Certified Specialist - System x Technical Principles V9 and Citrix Certified Administrator for Citrix XenDesktop 4.

Americas Remote Helpdesk

Eldersburg, MD

Sr. Network Engineer

October 2005 – June 2008

· Serving as both Sr. Network Engineer and Network Administrator on multiple networks using Windows

Server 2000 through Windows Server 2008 networks, with RAID 1, 3, & 5

· Programming & maintaining Cisco 1700, ADSM, Cisco Catalyst Series, Sonic Walls, Netgear, routers and

switches, including setting up the NAT and maintaining internal and external routing tables.

· Configuring, maintaining access control and security for VPN accounts for hardware and software VPNs

· Proposing, building, configuring Exchange 2003 Servers

· Proposing, building, configuring Blackberry Enterprise Servers

· Building, servicing, and maintaining Windows 2003 Advanced servers. Configuring Raids, and maintaining

backups. (both on site and with remote access.)

o Managing Systems and Group Policies

o Managing and creating logon script

o Account Migrations across the domain

o Managing Trust Relationships

o Setting up and Maintaining backups using Backup Exec Ver. 9-12

· Administrating users database for domain access and accounts that include local access, OWA, and web

access.

· Recommending, configuring, and deploying global anti-virus and anti spyware solutions

· Creating, deploying, and monitoring solutions via LogMeIn scripting

· Reviewing server logs and setting server policy.

· Building, installing new workstations for new employees: Including punching new CAT 5 – Cat 6 cabling,

and custom building LAN cables.

· Versed in a wide variety in multiple hardware platforms ranging from 8086 computers to current

technologies, that include up to Windows 2008 server

· Maintaining, installation, trouble shooting, & repair, of any and all PC hardware, printer, or business software.

· Parts ordering for repairs: Including filling out and submitting purchase request.

· Customer relations and communications pre and post job completion.

· Completing client assessment reviews for new and current customers for recommendations of upgrades of

infrastructure

· Notable Mention: Promoted from Network Engineer to Sr. Network Engineer within one year of employment

Case 1:13-cv-00881-RJL Document 31 Filed 11/23/13 Page 6 of 14

· Notable Accomplishment: Rebuild several networks migrating customers from older hardware and operation systems, to current hardware / software with very little no down time.

Art Litho

Baltimore, MD

MIS Director

Jan 2004 – October 2005

· Serving as both Network Engineer and Network Administrator on a Windows NT 4.0 / Windows 2003 Server

A/D Network, with RAID 1, 3, & 5, 1 PDC, 1 BDC, 1 Applications, 1 Storage, 1 Web Server, I-Mail Server, 2

FTP servers, 1 SQL Server with Active directory installed.

· Programming & maintaining Cisco 1700 series router including setting up the NAT and maintaining internal

and external routing tables.

· Configuring, maintaining access control and security for dial in accounts using Shiva Land Rover.

· Building, servicing, and maintaining NT Advanced servers. Configuring Raids, and maintaining backups.

(both on site and with terminal server.)

o Managing Systems and Group Policies

o Managing and creating logon script

o Account Migrations across the domain

o Managing Trust Relationships

· Administrating users database for domain access and I-Mail accounts that include local access, and web

access to the account

· Reviewing server logs and setting server policy.

· Building, installing new workstations for new employees: Including punching new CAT 5 cabling, and

custom building LAN cables.

· Versed in a wide variety in multiple hardware platforms ranging from 8086 computers to current technologies

that include up to Windows 2003 server

· Maintaining and repairing Apple/Mac computers for Prepress department that range from OS8 to OS 10.

· Maintaining Inter-Tel phone system, voice mail, and phone assignments to current and new users. This

included VOIP over a dedicated Point –to-Point T1 for a satellite office.

· Maintaining Control Access to buildings, including card key assignments, and reviewer of daily access logs.

· Maintaining, installation, trouble shooting, & repair of any and all PC hardware, printer, or business software.

· Parts ordering for repairs: Including filling out, and submitting purchase orders.

· Customer relations and communications pre and post job completion.

· Primary Software: Windows NT 4.0, Windows 2000, Windows XP, windows 2003 Server, PSI, Macola,

Crystal reports, Goldmine,

· Notable Mention: Was awarded employee of the month award after 90 days of service due to ability to save

the company over $15K, ability to provide web access to Prepress department who had not had web access

before,

and salvage of several "Non Functioning" pieces of equipment making them functional

for minimal cost.

· Notable Accomplishment: Rebuilt entire network in 2 weeks, converting from Windows NT 4.0 Servers and

workstations to Windows 2003 Server and Windows XP SP2, with NO data loss. This project included 1 PDC, 1

BDC,

1 Mail, 1 SQL Server and 30 Workstations. It also required upgrading from

SQL 7.0 to SQL 2000

Popowski Brothers, Inc.

Timonium, MD

Electronics Service Manager

December 2002 – October 2003

· Serving as both Network Engineer and Network Administrator on Windows 2000 Active Directory Network

on a 1 RAID 5 and 1 RAID 3 and 1 TERMINAL server.

· Configuring, maintaining access control and security for dial in accounts.

· Configuring, maintaining access control and security for VPN users

· Building, servicing, and maintaining NT Advanced servers. Configuring Raids, and maintaining backups.

(both on site and with terminal server.)

o Managing Systems and Group Policies

Case 1:13-cv-00881-RJL Document 31 Filed 11/23/13 Page 7 of 14

o Managing and creating logon script o Account Migrations across the domain o Managing Trust Relationships · Maintaining client connectivity over 3 sites. 2 Maryland, 1 Virginia · Administrating users database for domain access and Exchange server 5.5 accounts · Reviewing server logs and setting server policy. · Building, installing new workstations for new employees: Including punching new CAT 5 cabling, and custom building LAN cables. · Versed in a wide variety in multiple hardware platforms ranging from 8086 computers to current technologies that include server · Servicing any and all Electronic items: Including residential and commercial items. · Providing estimates of electronic repairs to insurance adjusters and customers. · Scheduling employee’s work loads for pickups deliveries and repairs. · Reviewing, hiring, counseling and termination, (if necessary), of employees, with the cooperation of Human Resources. · Parts ordering for repairs: Including filling out, and submitting purchase orders. · Customer relations and communications pre and post job completion.

Integrated Health Services

Hunt Valley, MD

Sr. Desktop Analyst (1 year contract)

October 2001 to December 2002

· Developed plans for test, evaluation and deployment of software in R+D Lab.

· Designed, built, documented, and evaluated test bed for all desktop applications.

· 2nd level support for resolution of user network connectivity issues.

· Installation and usage of the following software: WSFTP, Secure CRT, Windows NT Workstation 4.0,

Windows 95/98, ME, Windows

· 2000 Pro. MS Office 2000, Visio 2000, PaintShop Pro 7, Homesite 4.5, MS Project, Palm Software,

PeopleSoft 7.06 & 8.0, Terminal Server, and many others. .

· 2nd and 3rd level support for troubleshooting and servicing any/all hardware, (computers, laptops, and

printers), on site.

· Designed, Tested, Deployed, Desktop/Laptop images, for enterprise solution. (Over 270 locations

Nationwide.)

· Ordering, configuring all desktops, laptops, software and licenses, as well as maintained all desktop audit info

of HW/SW and license compliance.

· Designed and Implemented, Alpha & BETA, testing Project of Universal Desktop/Universal Laptop images

globally, including the coordination of communication between departments for software testing phases.

· Configuration, integration, and maintenance of Windows NT 4.0 Servers, IIS Servers, and Windows 2000

Servers.

· Administration of user accounts and permissions on Windows NT/ 2000 Active Directory Servers, and MS

Exchange 5.5 Servers.

o Managing Systems and Group Policies

o Managing and creating logon script

o Account Migrations across the domain

o Managing Trust Relationships

TSR, eSylvan

Baltimore, MD

Network Engineer / Desktop Support Manager

March 2000 to October 2001

· Configuration, integration, and maintenance of Windows NT 4.0 Servers, IIS Servers, and Windows 2000 Servers.
· Administration of user accounts and permissions on Windows NT Servers, MS Exchange 5.5 Server, Novell 5.0 Server, and eRooms Servers.
· Developed plans for test, evaluation and deployment of software in R+D Lab. · Designed, built, documented, and evaluated test bed for all new desktop applications.

Case 1:13-cv-00881-RJL Document 31 Filed 11/23/13 Page 8 of 14

· 2nd level support for resolution of customer network connectivity issues. · Installation and usage of the following software: WSFTP, Secure CRT, Windows NT Workstation 4.0,
Windows 95/98, ME, Windows 2000 Pro. MS Office 2000, Visio 2000, PaintShop Pro 7, Homesite 4.5, MS Project, Palm Software HelpAlert 3.6 (real time end user troubleshooting tool), network connection and monitoring tools. · 2nd and 3rd level support for troubleshooting and servicing any/all hardware, (computers, laptops, and printers), on site. · Managed team of technicians, determined assignment and escalation of trouble tickets, monitored progress and serving as level 3 support for desktop issues. · Ordering, warehousing, configuring and assigning to users, all desktops, laptops, software and licenses as well as maintained all desktop audit info of HW/SW and license compliance. · Setup and maintained desktop support helpdesk for support of internal and external users.

Key Systems

Timonium, MD

Site Supervisor / Lead Technician

March 1999 to March 2000

· 2nd level support for resolution of customer network connectivity issues, and servicing any/all hardware,

(computers and printers), on site and 2 off sight locations.

· Managed team of technicians, determined assignment and escalation of trouble tickets, monitored progress

and served as level 3 support for desktop issues.

· Coordinated with networking group and telecom to have ports and / or phone extensions moved or activated

as necessary.

· Installation, configuration, and usage of the following software: Windows NT Workstation, Windows 95/98,

MS Office 97, Lotus Notes, Timbuktu, Remedy, Support Magic, and many other Microsoft products and

operating systems.

Johns Hopkins University

Baltimore MD

Technical Service Coordinator/Network Administrator

September 1997 to March 1999

· Network Administration functions in support of 150+ node network

· Building, Upgrading, Troubleshooting, and Administration of Novell NetWare 3.x, 4.x File Servers, Windows

NT Servers, and Windows IIS Web Servers.

· Diagnosing any of the networks cabling problems for multiple Ethernet segments.

· Establishing file system security, statically assigning TCP/IP addresses, and performing regular tape backups

on all the servers.

· Installation and configuration of desktops and printers attached to the network.

· Use of Altiris: Labexpert Software for scripting and imaging of single and groups of computers.

· Installation, configuration, and maintenance of server-based applications that include: IIS, War FTP, Cold

Fusion, Visio, Homesite 3.0,

· MS Front Page and extensions, MS Project 98, Active Server Pages, and MS Office 97.

· Installation, configuration of all workstation software including Windows 95, Windows 98, Windows NT 4.0

Workstation, Chameleon,

· TCP/IP, Netscape Communicator, Homesite 3.0, SQL, ODBC 32, Microsoft Client for NetWare, and Novell

Intranetware.

· Configuring all hardware and software upgrades.

· Installation, configuration, troubleshooting and replacing when necessary, any PC or printer hardware

components. (This included SCSI and IDE hard drives, CD ROM drives, video adapters, sound cards, modems,

memory modules (SIMMs), Zip drives, Jazz drives, Network Interface Cards), all printer parts.

· Provided level 3 help desk functions and support to both staff and students.

· Working directly with vendors to get parts, upgrades, and quotes for major improvements to the Center’s

technology.

· Provided A/V support for production sound and video of live broadcasts.

Johns Hopkins University

Baltimore, MD

Micro Computer Technician

September 1996 to September 1997

Case 1:13-cv-00881-RJL Document 31 Filed 11/23/13 Page 9 of 14

· Provide PC and Macintosh, hardware and software support, for a network comprised of over 3000 desktops, 600 printers, and 120 file servers.
· Troubleshooting, diagnosing, and repairing all microcomputer components including, SCSI drives, SCSI controllers, NICs, video adapters, SIMMs, power supplies, and keyboards.
· Perform diagnostics, repair, upgrading and supporting of all hardware and software products, including desktops, laptops, X86s, Pentiums, Apple-Mac's, and OS/2 machines.

Computer City

Glen Burnie, MD

Hardware/Software Configuration Manager

July 1994 to September 1996

· Installation, configuration, and support of any hardware and software products in a technical repair shop for a

high volume retail computer store.

· Responsible for the custom build out of retail orders, involving disk drives, memory, sound systems,

multimedia, and network components.

· Directly supervised four microcomputer technicians in day-to-day operations.

· Responsible for prioritizing work orders, assigning tasks, tracking repair, ordering parts for repairs, and

customer support.

EDUCATION:

Johns Hopkins University (Did not receive degree) Major: Business/Information Technologies GPA: 3.78 Credits: 6

Anne Arundel Community College (Did not receive degree) Major: Criminal Law GPA: 3.42 Credits: 21

Certifications: Certified Juniper SSG 5 Firewalls Certified Sonicwall Administrator Certified NetWare 4.11 Administrator (CNA) Certified Webmaster: Received Jan. 27, 1999 from Johns Hopkins University Certified A+ PC Technician Currently holding 130+ Certifications granted by various hardware manufactures.

Certifications:

Case 1:13-cv-00881-RJL Document 31 Filed 11/23/13 Page 10 of 14
CNA
Certified Novell Administrator 4.11, Completed: March 18, 1998
A+
A+ Certificate, Completed Jan. 30, 1997
Webmaster
WebMaster Certificate, Completed: January 27, 1999
Juniper
Junos Fundamentals The Junos Software Advantage FOUNDJUNOS260309040056
JNSA Advanced Security Juniper Networks Sales Associate SSL JNSASSL130609040014 Juniper Networks Sales Associate Firewall JNSAFWV120609040091 Juniper Networks Sales Associate IDP JNSAIDP130609040006
Network Infrastructure Juniper Networks Sales Associate Enterprise Switch JNSAEX130609040020 Juniper Networks Sales Associate WAN Acceleration JNSAWX130609040023
JNSS Advanced Security Juniper Networks Sales Specialist SSL JNSSSSL030409040050 Juniper Networks Sales Specialist Firewall JNSSFWV260309040066 Juniper Networks Sales Specialist IDP JNSSIDP270509040082
Network Infrastructure Juniper Networks Sales Specialist Enterprise Switch JNSSEX280509040003 Juniper Networks Sales Specialist WAN Acceleration JNSSWX280509040006 Juniper Networks Sales Specialist Enterprise Routing JNSSMMX020609040019
Technical Certifications Juniper Networks Certified Internet Associate - Firewall/VPN November 23, 2011 Juniper Networks Certified Internet Associate - SSL April 16, 2010

Case 1:13-cv-00881-RJL Document 31 Filed 11/23/13 Page 11 of 14
Hewlett Packard
SPN: 032 - Vectra 386, 16N, 20N, 25NS, 20S, &25 PC, Completed Aug. 8, 1996 SPN: 033 - ScanJet 3P, II Series Scanners, Completed June 15, 1995 SPN: 034 - Vectra 486U PC Series, Completed Aug 8, 1996 SPN: 036 - Vectra PC Product Line Training 1992, Completed Aug. 7, 1996 SPN: 038 - Netserver LE Service, Completed May 7, 1999 SPN: 039 - Netserver LM Service, Completed May 3, 1999 SPN: 040 - Netserver LH Service, Completed April 21, 1999 SPN: 044 - NetServer LF Service, Completed May 13, 1999 SPN: 045 - Netserver LC Service, Completed May 3, 1999 SPN: 047 - Netserver LS Service, Completed April 28, 1999 SPN: 048 - 5000,7000 Home PC Series, Completed Aug. 7, 1996 SPN: 050 - Vectra 1996 Model PC Service, Completed May 21, 1999 SPN: 051 - Vectra 500 PC Service, Complete May 18, 1999 SPN: 052 - Netserver LX Service, Completed May 3, 1999 SPN: 053 - Netserver E30 Service, Completed April 21, 1999 SPN: 054 - Vectra 1997 Model PC Service, Completed May 20, 1999 SPN: 055 - Netserver E40/E45/E50 Service, Completed April 29, 1999 SPN: 057 - Netserver LC II Service, Completed June 28, 1999 SPN: 059 - 1998 Brio, Vectra, Kayak Service, Completed April 21, 1999 SPN: 060 - Netserver LH4/4r Service, Completed June 30, 1999 SPN: 061 - Netserver LXr 8000 Service, Completed June 30, 1999 SPN: 062 - Netserver LPr Service, Completed July 1, 1999 SPN: 064 - 1999 PC & PC Workstation Service, Completed June 4, 1999 SPN: 065 - Netserver E60 Service, Completed June 28, 1999 SPN: 076 - HP Workstation Products, Completed October 31, 2001 SPN: 078 - HP Pavillion Notebooks, Completed November 2, 2001 SPN: 214 - DesignJet 600 Service, Completed June 8, 1999 SPN: 216 - DesignJet 650C Service, Completed June 4, 1999 SPN: 218 - DesignJet 200 & 220 Service, Completed June 4, 1999 SPN: 219 - DesignJet 230,250C,330,350C Service, Completed June 7, 1999 SPN: 220 - DesignJet 700, 750C, 750C+, 755CM, Completed April 8, 1999 SPN: 221 - DesignJet 430/450C/455CA Service, Completed June 8, 1999 SPN: 311 - Laserjet Models 33440, 33447, 33449, 33459, Completed May 13, 1999 SPN: 312 - Laserjet IIP, IIP+, IIIP Printers, Completed Dec. 5 1994 SPN: 319 - DeskWriter C, 520,550C, &560C Diag., Completed July 31, 1995 SPN: 322 - DeskJet 500C, 520,550C, 560C Diag., Completed July 31, 1995 SPN: 325 - LaserJet 4,4M, 4Plus, & 4M Plus, Completed June 17, 1995 SPN: 326 - LaserJet IIISI, 4SI, &4SIMX, Completed June 28, 1996 SPN: 327 - LaserJet 4L, 4ML, 4P, 4MP, 5P, 5MP, Completed June 6, 1995

Case 1:13-cv-00881-RJL Document 31 Filed 11/23/13 Page 12 of 14
SPN: 328 - Deskjet 1200C,1600C, PS, Completed Sept. 19, 1995 SPN: 333 - DeskJet 540,600, Completed Sept. 7, 1995 SPN: 334 - DeskWriter 540,600C, 660C, Completed Sept. 7, 1995 SPN: 335 - Color Laserjet Printer Service, Completed April 12, 1999 SPN: 336 - LaserJet 4V-4MV, Completed June 9, 1995 SPN: 339 - Laserjet 5L & 6L Printer Service, Completed April 19, 1999 SPN: 340 - Copyjet Models C3817A & C3819A, Completed Sept. 28, 1996 SPN: 341 - LaserJet 5SI & 5SIMX, Completed June 11, 1996 SPN: 342 - Laserjet 4SI Network Scanner, Completed April 16, 1999 SPN: 343 - DeskJet 850C & 855C, Completed May 13, 1999 SPN: 344 - Network Scanjet 5 Scanner Service, Completed April 6, 1999 SPN: 346 - Laserjet 4000, 4000N, 4000TN, Completed March 24, 1999 SPN: 347 - Laserjet 5000, 5000N, 5000GN, Completed March 30, 1999 SPN: 348 - Laserjet 3100 Service, Completed May 4, 1999 SPN: 350 - Deskjet 340/340CM, Completed April 15, 1999 SPN: 352 - OfficeJet/OfficeJet LX Service, Completed June 2, 1999 SPN: 353 - OfficeJet Series 300 Service, Completed May 24, 1999 SPN: 354 - OfficeJet Pro 1150C/1170C/1175C Service, Completed June 3, 1999 SPN: 355 - Color LaserJet 4500 Service, Completed June 17, 1999 SPN: 356 - Color Laserjet 8500, 8500N, 850DN, Completed April 9, 1999 SPN: 358 - OfficeJet 500,600,700 & Print/Scan/Copy 370/380, Completed June 2, 1999 SPN: 359 - Laserjet 1100 Printer Service, Completed April 27, 1999 SPN: 361 - Laserjet 2100, Completed March 24, 1999 SPN: 362 - HP25000C/CM Color Printer Service, Completed June 11, 1999 SPN: 363 - Laserjet 3150, Completed March 2, 2000 SPN: 365 - LaserJet 8000 & 8100 MFP, Completed November 8, 2001 SPN: 412 - Optimizing Workgroup Performance, Completed April 10, 1999 SPN: 414 - JetDirect Print Severs, Completed April 8, 1999 SPN: 421 - SureStore Diagnostic Service, Completed December 8, 1999 SPN: 505 - Fax 700/750 & 900/950, Completed April 29, 1999 SPN: 604 - Omnibook Notebook PCs Laptop, Completed June 3, 1999 SPN: 605 - Omnibook 600 & 800, Completed April 29, 1999 SPN: 606 - Omnibook 3000 Service, Completed June 16, 1999 SPN: 607 - Omnibook Preformance 98 Service, Completed June 18, 1999 SPN: 901 - LaserJet Basic Hardware Training, Completed Nov. 2, 1994 SPN: 995 - HP Facilitation Support, Completed November 19, 2001 SPN: 997 - Deskjet 800 Series, Completed April 30, 1999 SPN: 998 - DeskJet/Deskwriter 400, 540, 600, 600C, 720, Completed April 19, 1999 SPN: 999 - Manuals and Tests for Discount, Completed November 2, 1994

Case 1:13-cv-00881-RJL Document 31 Filed 11/23/13 Page 13 of 14
Okidata
ML590 ML 590/591 Printer Training, Completed Oct. 24, 1994 Update ML 590/591 Printer Training Update, Completed Feb. 14, 1995 ML300 ML 300 Printer Training, Completed Feb. 14, 1995 ML380 ML 380 Printer Training, Completed Feb. 14, 1995 ML395 ML 395 Printer Training, Completed Feb. 14, 1995 ML393 ML 393-Plus Printer Training, Completed Feb 14, 1995 OL400e OL 400E/410E Printer Training, Completed Feb. 14, 1995 OL400 OL 400/800/820/830/840 Printer Training, Completed Feb. 14, 1995 OL810 OL 810 Printer Training, Completed Feb. 14, 1995 OL810 OL 830-Plus/850 Printer Training, Completed Feb 14, 1995
Leading Edge
Repair of Leading Edge Computers, Completed Mar 17, 1995
Cannon
BJ200 BJ-200, 230, 200E, 100 Bubble Jet, Completed Oct 21, 1994 BJ600 BJC-600, 600E Bubble Jet Printers, Completed Mar 27, 1995 BJ10 BJ-10 Series Bubble Jet Printers, Completed Feb 16, 1995
Dell
Dimension Desktops, Expires:04/26/2000 Dell Workstations, Expires: 04/26/2000 Latitude Notebooks, Expires: 04/26/2000 PowerEdge Servers, Expires: 04/26/2000
AST
8000 Advantage 8000 PC, Completed Apr 13, 1996 Cupid Cupid Desktop PC, Completed May 26, 1995 Bravo Bravo Family PC, Completed Aug 21, 1996
Lexmark
4076 OWJ Service Training, Completed Aug 1996 4076-02C Service Training, Completed Aug 1996 4077 (Winwriter 150C) Service Training, Completed Aug 1996 4090 Color Jetprinter 2070 Training, Completed Aug 1996 4076 Color Jetprinter Service Training, Completed Aug 1996

Case 1:13-cv-00881-RJL Document 31 Filed 11/23/13 Page 14 of 14
4078 Color Jetprinter Service Training, Completed Aug 1996
IBM
IBM Certified Specialist- System x Technical Principles V9 - May 3, 2010 IBM Certified Specialist- High Volume Storage Fundamentals V1 - May 12, 2010 IBM Certified Specialist- BladeCenter Technical Support V5 - May 18, 2010 PS Server Service Training, Completed Jan. 1996 PS Server Service Training Update, Completed Mar. 1996 PS Server 500 Service Training, Completed Feb. 1996 PS Server Line Ver. 2 Service Training, Completed Mar. 1996 ThinkPad Service Training, Completed Sept. 1995 Network Printer 12 Service Training, Completed Apr. 1995 Network Printer 17 Service Training, Completed May 1996 Warranty Support &PS/ ValuePoint, Completed Dec. 1995 PS/2 Micro Channels Models, Completed Nov. 1995 Warranty Basics Service Training, Completed Oct. 1995 Warranty Basics Service Training Update, Completed Mar. 1999 Network Color Printer Service Training, Completed Apr. 1996 Mobile Systems Training, Completed Mar. 1999 Desktop Systems Repair Training, Completed Mar. 1999

 
 Case 1:13-cv-00881-RJL Document 41 Filed 12/16/13 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KLAYMAN et al., Plaintiffs,
v.
OBAMA et aI., Defendants.
KLAYMAN et aI., Plaintiff,
v.
OBAMA et aI., Defendants.

)

)

)

)

)

)

)

) )

FILED

DEC 1 6 2013

)

)

Citric, U.S. District & Bankruptcy Courts for the District of Columbia

)

)

) Civil Action No. 13-0881 (RJL)

)

)

)

)

ORDER
16~For the reasons set forth in the Memorandum Opinion entered this date, it is this of December, 2013, hereby ORDERED that the Motion for Preliminary Injunction in Klayman v. Obama, Civil Action No. 13-0851 (Klayman l) [Dkt. # 13], is GRANTED as to plaintiffs Larry Klayman and Charles Strange and DENIED as to plaintiff Mary Ann Strange; it is further
ORDERED that the Government:

Case 1:13-cv-00881-RJL Document 41 Filed 12/16/13 Page 2 of 2 (1) is barred from collecting, as part of the NSA's Bulk Telephony Metadata Program, any telephony metadata associated with Larry Klayman's and Charles Strange's personal Verizon telephone subscriptions; and (2) must destroy all such metadata already collected under the Bulk Telephony Metadata Program; it is further
ORDERED that the Motion for Preliminary Injunction in Klayman v. Ohama, Civil Action No. 13-0881 (Klayman II) [Dkt. # 10] is DENIED; and it is further
ORDERED that this Order is STAYED pending appeal.
,
~
United States District Judge
2

 
 Case 1:13-cv-00881-RJL Document 72 Filed 03/26/14 Page 1 of 3

IN UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
LARRY KLAYMAN, et. al.,
Plaintiffs,

v.

BARACK HUSSEIN OBAMA II, et. al. Defendants.

Civil Action No.: 13-cv-851 13-cv-881
Judge Richard J. Leon

MOTION FOR TELEPHONIC STATUS CONFERENCE
Plaintiffs, Larry Klayman, Charles Strange, Mary Ann Strange, Matt Garrison, and Michael Ferrari, respectfully request, at the Court's convenience, a telephonic status conference.
It is apparent that the Government and Individual Government Defendants are having an increasingly chilling effect on the communications of American citizens who have no connection to terrorism, including former presidents who no longer use the phone or internet because they too are in fear of their current government. (See Exhibit 1 -- Associated Press article about President Carter refusing to Communicate by phone or internet). In the face of this, Defendant Obama, just yesterday, at a press conference in the Netherlands, disingenuously told American citizens and the world that "I’m confident that everybody in our intelligence agencies operates in the best of intentions and is not snooping into the privacy of ordinary Dutch, German, French or American citizens." See Exhibit 2 -- Transcript of President Obama's Remarks from March 25, 2014. Obviously, this has proven false, as the Court ruled on December 16, 2013. See Mem.
1

Case 1:13-cv-00881-RJL Document 72 Filed 03/26/14 Page 2 of 3

Opinion of December 16, 2013. Thus, the illegal and unconstitutional conduct is not only ongoing, but the Government continues to lie about its actions.
Plaintiffs thank the Court for its consideration. Plaintiffs contacted Defendant's counsel to seek consent for this motion. Predictably, Counsel for Defendants stated that they do not see the need for a status conference at this time.

Dated: March 26, 2014

Respectfully submitted,
/s/ Larry Klayman
Larry Klayman, Esq. General Counsel Freedom Watch, Inc. D.C. Bar No. 334581 2020 Pennsylvania Ave. NW, Suite 345 Washington, DC 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com
Attorney for Plaintiffs and the Class

2

Case 1:13-cv-00881-RJL Document 72 Filed 03/26/14 Page 3 of 3

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 26th day of March, 2014, a true and correct copy of the foregoing Motion For Telephonic Status Conference (Civil Action No. 13-cv-851 and 13-cv881) was submitted electronically to the District Court for the District of Columbia and served via CM/ECF upon the following:

James J. Gilligan Special Litigation Counsel Civil Division, Federal Programs Branch U.S. Department of Justice P.O. Box 883 Washington, D.C. 20044 (202) 514-3358 Email: James.Gilligan@usdoj.gov

Attorneys for Defendants.

Respectfully submitted,
/s/ Larry Klayman Larry Klayman, Esq. General Counsel Freedom Watch, Inc. D.C. Bar No. 334581 2020 Pennsylvania Ave. NW, Suite 345 Washington, DC 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com

3

 
 [NOT YET SCHEDULED FOR ORAL ARGUMENT] No. 14-5004, 14-5005, 14-5016, 14-5017
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
LARRY ELLIOTT KLAYMAN et al.,
Appellees/Cross-Appellants,
v.
BARACK HUSSEIN OBAMA et al.,
Appellants/Cross-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
GOVERNMENT APPELLANTS’ OPENING BRIEF
STUART F. DELERY Assistant Attorney General
RONALD C. MACHEN JR. United States Attorney
DOUGLAS N. LETTER H. THOMAS BYRON III HENRY C. WHITAKER
(202) 514-3180 Attorneys, Appellate Staff Civil Division, Room 7256 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to D.C. Circuit Rule 28(a)(1), the undersigned counsel certifies as follows: A. Parties and Amici These consolidated appeals arise from two related district court cases, No. 13cv851, and No. 13cv881. No. 14-5004 and its cross-appeal, No. 14-5016, are appeals from the district court’s order in No. 13cv851. In those appeals, plaintiffsappellees (and cross-appellants) are Larry Elliot Klayman, Charles Strange, and Mary Ann Strange. Defendants-appellants (and crossappellees) include Barack Hussein Obama, Eric H. Holder Jr., and Michael S. Rogers, who have been sued in their official capacities. The other defendants-appellants are the National Security Agency and the U.S. Department of Justice. Defendants-appellees are Lowell C. McAdam, and Verizon Communications. On February 12, 2014, Lowell McAdam and Verizon Communications notified this Court that they would not be participating in the appeal. This Court has granted the motion of the Center for National Security Studies to participate in this appeal as amicus curiae.
i

This Court has consolidated No. 14-5004 and 14-5016 with No. 145005 and its cross-appeal, No. 14-5017. Nos. 14-5005 and 14-5017 are appeals from the district court’s order entered in 13cv881. In that case, plaintiffs-appellees (and cross-appellants) are Larry Elliot Klayman, Michael Ferrari, Charles Strange, and Matt Garrison. Defendantsappellants (and cross-appellees) include Eric H. Holder, Jr., Barack Hussein Obama, and Michael S. Rogers, who have been sued in their official capacities. The other defendants-appellants are the National Security Agency and the U.S. Department of Justice. Defendantsappellees are Facebook, Mark Zuckerberg, Google, Inc., Larry Page, Youtube LLC, Salar Kamangar, Apple, Timothy Cook, Microsoft, Steve Ballmer, Skype, Tony Bates, AOL, Tim Armstrong, Yahoo! Inc., Marissa Meyer, PalTalk, Jason Katz, AT&T, Randall L. Stephenson, Sprint Communications Co., and Daniel Hesse. Steven D. Leonard moved in district court for leave to file a brief as amicus curiae.
B. Ruling Under Review The ruling under review is Judge Richard J. Leon’s opinion and order of December 16, 2013, which is reported at 957 F. Supp. 2d 1
ii

(D.D.C. 2013). The district court entered the identical opinion and order in Nos. 13cv851 and 13cv881.
C. Related Cases Two other related cases are pending in district court challenging alleged government intelligence-gathering programs: 14cv92, and 14cv262.
/s/ Henry C. Whitaker Henry C. Whitaker
iii

TABLE OF CONTENTS
STATEMENT OF JURISDICTION .......................................................... 1 STATEMENT OF THE ISSUES............................................................... 1 PERTINENT STATUTES AND REGULATIONS ................................... 3 STATEMENT OF THE CASE .................................................................. 3
I. NATURE OF THE CASE ........................................................ 2 II. STATUTORY BACKGROUND ............................................... 6
A. Section 215 ..................................................................... 6 B. The Section 215 Bulk Telephony-Metadata
Program.......................................................................... 9 III. PROCEEDINGS BELOW ..................................................... 20
A. These Suits................................................................... 20 B. The Preliminary Injunction......................................... 23 SUMMARY OF ARGUMENT ................................................................. 29 STANDARD OF REVIEW....................................................................... 35 ARGUMENT ........................................................................................... 35 THE DISTRICT COURT ERRED IN ENTERING A PRELIMINARY INJUNCTION AGAINST THE OPERATION OF THE SECTION 215 BULK TELEPHONYMETADATA PROGRAM ............................................................... 35
iv

A. Plaintiffs Have Not Demonstrated Standing To Challenge The Section 215 Bulk TelephonyMetadata Program ................................................................ 35
B. Plaintiffs Are Not Likely To Succeed On Their Claim That The Section 215 Program Violates The Fourth Amendment ....................................................... 44 1. The Program Does Not Infringe A Constitutionally Protected Privacy Interest ........................................... 44 2. If Obtaining Metadata Implicated A Fourth Amendment Privacy Interest, The Program Would Still Be Constitutional...................................... 60
C. The District Court Abused Its Discretion In Balancing The Equities And Assessing The Public Interest ................. 66
CONCLUSION ........................................................................................ 68
v

TABLE OF AUTHORITIES

Cases

Page

ACLU v. Clapper, 959 F. Supp. 2d 724 (S.D.N.Y. 2013) ................................................... 45
Board of Educ. v. Earls, 536 U.S. 822 (2002) .............................................................................. 63
Cassidy v. Chertoff, 471 F.3d 67 (2d Cir. 2006).............................................................. 60, 63
* Clapper v. Amnesty Int’l, 133 S. Ct. 1138 (2013) .................................................. 24, 36, 37, 41, 42
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .............................................................................. 37
Defenders of Wildlife v. Perciasepe, 714 F.3d 1317 (D.C. Cir. 2013).............................................................41
Dorfmann v. Boozer, 414 F.2d 1168 (D.C. Cir. 1969).............................................................67
Guest v. Leis, 255 F.3d 325 (6th Cir. 2001) ................................................................ 57
Haig v. Agee, 453 U.S. 280 (1981) .............................................................................. 62
Hartness v. Bush, 919 F.2d 170 (D.C. Cir. 1990)...............................................................60

__________________________________________________________________ *Authorities upon which we chiefly rely are marked with asterisks.
vi

Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) .......................................................................... 65
In re Directives, 551 F.3d 1004 (FISC-R 2008)...............................................................62
In re Grand Jury Proceedings, 827 F.2d 301 (8th Cir. 1987) ................................................................ 52
* Laird v. Tatum, 408 U.S. 1 (1972) ............................................................................ 42, 43
Lopez v. United States, 373 U.S. 427 (1963) .............................................................................. 49
MacWade v. Kelly, 460 F.3d 260 (2d Cir. 2006) ............................................................ 60, 64
Maryland v. King, 133 S. Ct. 1958 (2013) .................................................................... 61, 62
* Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) .................................................................. 60, 63, 65
Minnesota v. Carter, 525 U.S. 83 (1998) .......................................................................... 47, 51
Nat’l Treasury Emps. v. Von Raab, 489 U.S. 656 (1989) .............................................................................. 64
Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008), rev’d on other grounds, 560 U.S. 746 (2010) .............................................................................. 57
vii

Riley v. California, 134 S. Ct. 2473 (2014) .................................................................... 53, 54
Rakas v. Illinois, 439 U.S. 128 (1978) ........................................................................ 47, 51
Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011)...............................................................35
* Smith v. Maryland, 442 U.S. 735 (1979) ......................................... 26, 27, 32, 43, 44, 45, 46, 47, 48, 49, 50, 55, 59
Smith v. Obama, 2014 WL 2506421 (D. Idaho June 3, 2014)..........................................45
Steagald v. United States, 451 U.S. 204 (1981) .............................................................................. 51
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) .......................................................................... 37
* United Presbyterian Church v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984)....................................................... 42, 43
United States v. Davis, __ F.3d __, 2014 WL 2599917 (11th Cir. June 11, 2014).....................55
United States v. Dionisio, 410 U.S. 1 (1973) .................................................................................. 52
United States v. Forrester, 512 F.3d 500 (9th Cir. 2008) ................................................................ 57
United States v. Haqq, 278 F.3d 44 (2d Cir. 2002)....................................................................51
viii

United States v. Jones, 132 S. Ct. 945 (2012) ...................................................................... 58, 59
United States v. Knotts, 460 U.S. 276 (1983) .............................................................................. 58
United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), aff’d on other grounds sub nom. United States v. Jones, 132 S. Ct. 945 (2012) ................ 58, 59
* United States v. Miller, 425 U.S. 435 (1976) .............................................................................. 55
United States v. Moalin, 2013 WL 6079518 (S.D. Cal. Nov. 18, 2013)........................................45
United States v. Place, 462 U.S. 696 (1983) .............................................................................. 41
United States v. Rigmaiden, 2013 WL 1932800 (D. Ariz. May 8, 2013) ............................................ 52
* Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) ........................................................................ 60, 63
Whitmore v. Arkansas, 495 U.S. 149 (1990) .............................................................................. 37
Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) ............................................................................ 34, 35
ix

Constitution U.S. Const. amend. IV.............................................................................61 Statutes 28 U.S.C. § 1292(a)(1)................................................................................1 28 U.S.C. § 1331 ........................................................................................ 1 50 U.S.C. § 1801(i)...................................................................................15 50 U.S.C. § 1803(a) .................................................................................... 6 50 U.S.C. § 1861 .................................................................................... 1, 6 50 U.S.C. § 1861(a)(1)................................................................................7 50 U.S.C. § 1861(a)(2)(A)...........................................................................7 50 U.S.C. § 1861(b)(2)(A)...........................................................................7 50 U.S.C. § 1861(b)(2)(B)...........................................................................7 50 U.S.C. § 1861(c)(1) .......................................................................... 8, 13 50 U.S.C. § 1861(f)(2) ................................................................................ 8 50 U.S.C. § 1861(f)(3) ................................................................................ 8 50 U.S.C. § 1861(g) .................................................................................. 13
x

Other Authorities
In re Application of the FBI for an Order Requiring the Production of Tangible Things. 12, Dkt. No. BR-14-96 (FISC June 19, 2014), available at http://www.dni.gov/files/documents/0627/BR%201496_Primary_Order.pdf ......................................................................... 11
In re Application of the FBI for an Order Requiring the Production of Tangible Things, Dkt. No. BR-14-01 (FISC Jan 3, 2014), available at http://www.dni.gov/files/documents/BR%201401%20Redacted%20Primary%20Order%20(Final).pdf ....................... 13
In re Application of the FBI for an Order Requiring the Production of Tangible Things, Dkt. No. BR-14-01 (FISC Feb. 5, 2014); available at http://www.dni.gov/files/documents/BR%201401%20MTA%20and%20Order%20with%20redactions%20 (Final).pdf ............................................................................................. 18
In re Application of the FBI for an Order Requiring the Production of Tangible Things, Dkt. No. BR-14-67 (FISC Mar. 28, 2014); available at http://www.dni.gov/files/documents/0627/BR_1467_Primary_Order.pdf ......................................................................... 13
Joint Statement From the ODNI and DOJ on the Declassification of Renewal of Collection Under Section 501 of FISA (June 20, 2014), available at http://www.dni.gov/index.php/newsroom/press-releases/ 198-press-releases-2014/1082-joint-statement-from-theodni-and-doj-on-the-declassification-of-renewal-ofcollection-under-section-501-of-fisa ............................................... 13, 19
Statistical Transparency Report Regarding use of National Security Authorities, (June 26, 2014), available at http://www.dni.gov/files/tp/National_Security_
xi

Authorities_Transparency_Report_CY2013.pdf .................................. 14 In re Application of the FBI for an Order Requiring the
Production of Tangible Things, Dkt. No. BR-14-01 (FISC Mar. 20, 2014), available at http://www.dni.gov/files/documents/BR%2014-01_ Foreign Intelligence Surveillance Court_Opinion_and_Order_March_20_2014.pdf ................................. 44 In re Application of the FBI for an Order Requiring the Production of Tangible Things, Dkt. No. BR-14-96 (FISC June 19, 2014), available at http://www.dni.gov/files/documents/ 0627/Memorandum_Opinion_in%20BR_14-96.pdf ....................... 44, 45 Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561 (2009)................................................................46
xii

GLOSSARY

3/27 President Statement 6/20 AG-DNI Joint Statement
App. March 2014 FISC Op.

Statement by the President on the Section 215 Bulk Metadata Program, http://www.whitehouse.gov/ the-pressoffice/2014/03/27/statement -president-section-215bulk-metadata-program.
Joint Statement From the ODNI and DOJ on the Declassification of Renewal of Collection Under Section 501 of FISA, http://www.dni.gov/index.p hp/newsroom/pressreleases/198-pressreleases-2014/1082-jointstatement-from-the-odniand-doj-on-thedeclassification-of-renewalof-collection-under-section501-of-fisa.
Appendix
In re Application of the FBI for an Order Requiring the Production of Tangible Things, Dkt. No. BR-14-01 (FISC Mar. 20, 2014)

xiii

May 2014 Shea Decl. June 19 Primary Order

Decl. of Teresa H. Shea, Klayman v. Obama, No. 13cv851 (filed May 9, 2014)
In re Application of the FBI for an Order Requiring the Production of Tangible Things, Dkt. No. BR-14-96 (FISC June 19, 2014)

xiv

STATEMENT OF JURISDICTION Plaintiffs’ complaints invoked the district court’s jurisdiction under 28 U.S.C. § 1331. See App. 39, 74. The district court entered an order partially granting and partially denying plaintiffs’ motion for a preliminary injunction. Klayman v. Obama, 957 F. Supp. 2d 1, 9-10 (D.D.C. 2013). In particular, the district court granted plaintiffs’ motion to enjoin preliminarily the operation of the government’s Section 215 bulk telephony-metadata program, by requiring the government to destroy any metadata associated with the personal telephones of two subscribers, and prohibiting any future collection of such metadata. Id. at 8, 10. The Court stayed that order pending appeal. Id. at 10. This Court has appellate jurisdiction under 28 U.S.C. § 1292(a)(1) to review the district court’s interlocutory order partially granting and partially denying injunctive relief.
STATEMENT OF THE ISSUES Pursuant to authorization from the Foreign Intelligence Surveillance Court under Section 215 of the USA PATRIOT Act, 50 U.S.C. § 1861, the government acquires from telecommunications companies business records that consist of telephony metadata

reflecting the time, duration, dialing and receiving numbers, and other information about telephone calls, but that do not identify the individuals involved in, or include the content of, the calls. The government then, pursuant to judicial authorization, conducts targeted electronic queries of that assembled database of information for links between and among suspected-terrorist contacts and other, previously unknown contacts; those links provide valuable information that aids counter-terrorism investigations.
The issues presented are: 1. Whether the district court correctly concluded that plaintiffs have standing to challenge the Section 215 bulk telephony-metadata program. 2. Whether the district court correctly concluded that plaintiffs were likely to succeed on their claim that the Section 215 bulk telephony-metadata program violates the Fourth Amendment. 3. Whether the district court correctly concluded that the balance of equities favored imposition of a preliminary injunction against the operation of the Section 215 program.
2

PERTINENT STATUTES AND REGULATIONS Pertinent statutes are reproduced in the addendum to this brief.
STATEMENT OF THE CASE I. NATURE OF THE CASE
Plaintiffs brought two related cases challenging the lawfulness of certain government antiterrorism intelligence-gathering activity. In Nos. 14-5004, 14-5016 (No. 13cv851 in district court), plaintiffs Larry Klayman, Charles Strange, and Mary Ann Strange brought a putative class-action suit challenging the lawfulness of the government’s alleged acquisition and use of bulk telephony metadata from telecommunications providers. App. 35-36. Plaintiffs alleged that these activities violated the First, Fourth, and Fifth Amendments to the Constitution and exceeded the government’s statutory authority, and they sought injunctive relief. Plaintiffs also sought to hold a variety of government officials and private individuals personally liable in damages for common law and statutory torts, as well as for alleged constitutional violations. App. 45-56.
In Nos. 14-5005, 14-5017 (No. 13cv881 in district court)—which this Court has consolidated with Nos. 14-5004 and 14-5016—plaintiffs Larry Klayman, Michael Ferrari, Charles Strange, and Matt Garrison
3

brought a putative class action suit against the government, government officials in their individual capacities, and various private companies and individuals. The complaint challenged what it characterized as the government’s “PRISM” surveillance program, which, plaintiffs alleged, encompassed not only the acquisition of telephony metadata from telecommunications companies, but also the content of telephone communications, as well as the content and associated metadata of Internet-based communications, such as e-mail. App. 76-77. Plaintiffs claimed violations of the First, Fourth, and Fifth Amendments, and they sought injunctive relief. Plaintiffs also sought damages from the government, government officials in their individual capacities, and both private individuals and companies for a range of statutory and common law torts, as well as for alleged constitutional violations. App. 80-91.
On October 29, 2013—nearly five months after the early-June filing of their initial complaints in both district court matters, see App. 5-6, 24-25—plaintiffs filed identical motions for preliminary injunctions in both district court cases. Those motions sought to “bar[] Defendants from collecting Plaintiffs’ call records under the mass call surveillance
4

program”; to require the government to “destroy all of Plaintiffs’ call records already collected under the program” and to prevent the government from “querying metadata obtained through the program using any phone number or other identifier associated with Plaintiffs.” App. 95, 112.
Construing those motions as limited to the government’s Section 215 bulk telephony-metadata program, the district court partially granted and partially denied preliminary injunctive relief. 957 F. Supp. 2d at 8 & n.6. The district court stayed its preliminary injunction pending appeal. Id. at 10.
The government appealed the district court’s orders in both cases. App. 588, 590. Plaintiffs cross-appealed in both cases. App. 592, 594. This Court has consolidated both sets of appeals.
In the months following the district court’s order, the President announced, and the Foreign Intelligence Surveillance Court adopted, changes to the Section 215 bulk telephony-metadata program that further enhanced the program’s privacy protections and safeguards.
5

II. STATUTORY BACKGROUND The government appeals from a preliminary injunction against
the operation of an important facet of the government’s intelligencegathering capabilities aimed at combating international terrorism—a bulk telephony-metadata program the government operates under the authority of the Foreign Intelligence Surveillance Act.
A. Section 215 Congress enacted the Foreign Intelligence Surveillance Act in 1978 to authorize and regulate certain governmental surveillance of communications and other activities conducted to gather foreign intelligence. The Act created a special Article III court, the Foreign Intelligence Surveillance Court, composed of federal district court judges designated by the Chief Justice, to adjudicate government applications for ex parte orders authorized by the statute. See 50 U.S.C. § 1803(a). Section 501 of the Foreign Intelligence Surveillance Act—which we refer to as “Section 215” because that provision was substantially amended by Section 215 of the USA PATRIOT Act, codified at 50 U.S.C. § 1861—authorizes the government to apply to the Foreign Intelligence
6

Surveillance Court “for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” Id. § 1861(a)(1). As amended in 2006, Section 215 requires that the application include “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.” Id. § 1861(b)(2)(A). Section 215 also includes other requirements that the government must satisfy to obtain a court order to produce business records or other tangible things. See, e.g., id. §§ 1861(a)(2)(A), (b)(2)(A) (investigation must be authorized and conducted under guidelines approved by the Attorney General under Executive Order No. 12,333 or a successor thereto); id. § 1861(b)(2)(B) (application must “enumerat[e] . . . minimization procedures adopted by the Attorney General . . . that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available” under the order). If the government makes the requisite factual showing, a Foreign Intelligence Surveillance Court
7

judge “shall enter an ex parte order as requested, or as modified, approving the release of tangible things.” Id. § 1861(c)(1).
Section 215 establishes a detailed mechanism for judicial review of such orders. The recipient of an order to produce tangible things under Section 215 may challenge the order before another Foreign Intelligence Surveillance Court judge. See 50 U.S.C. § 1861(f)(2). Further review is also available in the Foreign Intelligence Surveillance Act Court of Review and, ultimately, in the Supreme Court. See id. § 1861(f)(3).
In addition to this system of judicial review, the Foreign Intelligence Surveillance Act establishes specific procedures for congressional oversight. In particular, the Attorney General must furnish reports detailing activities under the Act to the House and Senate Intelligence and Judiciary Committees. See 50 U.S.C. §§ 1808, 1826, 1846. The Act also requires the Attorney General to report all requests made to the Foreign Intelligence Surveillance Court under Section 215 to the House and Senate Intelligence and Judiciary Committees. See id. § 1862(a); see also id. §§ 1862(b) and (c), 1871(a)(4).
8

B. The Section 215 Bulk Telephony-Metadata Program The United States operates a telephony-metadata intelligencegathering program under Section 215 as part of its efforts to combat international terrorism. Telephony metadata are data about telephone calls, such as, for example, the date and time a call was made, what number a telephone called or received a call from, and the duration of a call. App. 203. Companies that provide telecommunications services create and maintain records containing telephony metadata for the companies’ own business purposes, such as billing and fraud prevention, and they provide those business records to the federal government in bulk pursuant to court orders issued under Section 215. The data obtained under those Foreign Intelligence Surveillance Court orders do not include information about the identities of individuals; the content of the calls; or the name, address, financial information, or cell site locational information of any telephone subscribers. App. 203. As described in more detail below, the district court enjoined the operation of the Section 215 telephony-metadata program, based on that court’s assessment of the program as it existed in December 2013. In January 2014, however, the President announced, and the Foreign
9

Intelligence Surveillance Court subsequently implemented, changes to the program to make even more robust the program’s privacy protections and safeguards.
Under the current version of the Section 215 bulk telephonymetadata program, the government consolidates the metadata provided by the companies into a database that includes a repository of metadata aggregated from certain telecommunications companies. Although the program operates on a large scale and collects records from multiple telecommunications providers, the Foreign Intelligence Surveillance Court has explained that “production of all call detail records of all persons in the United States has never occurred under this program.” See, e.g., App. 132 n.5. Various details of the program remain classified, precluding further explanation here of its scope, but the absence of those details cannot justify unsupported assumptions. For example, the record does not support the district court’s conclusions that the program collects “the phone metadata of every telephone user in the United States,” or that “all phone companies” necessarily participate in the Section 215 program. Klayman, 957 F. Supp. 2d at 33; see id. at 39 (characterizing the program as effecting “continuous, daily searches of
10

virtually every American”). Nor are those conclusions correct. See Decl. of Teresa H. Shea ¶ 8, Klayman v. Obama, No. 13cv851 (filed May 9, 2014) (“May 2014 Shea Decl.”).1
The government uses the Section 215 telephony-metadata program as a tool to facilitate counterterrorism investigations— specifically, to ascertain whether international terrorist organizations are communicating with operatives in the United States. When a selector (the query term), such as a telephone number, is reasonably suspected of being associated with a terrorist organization, government analysts may then, through querying, obtain telephone numbers (or other metadata) that have been in contact within two steps, or “hops,” of the suspected-terrorist selector. In re Application of the FBI for an Order Requiring the Production of Tangible Things 7-8. 12, Dkt. No. BR-14-96 (FISC June 19, 2014) (“June 19 Primary Order”).2 Except in exigent circumstances, the Foreign Intelligence Surveillance Court
1 We explain below that the government should prevail as a matter of law even if the scope of the program were as the district court believed. The May 2014 Shea declaration is included in the Addendum.
2 http://www.dni.gov/files/documents/0627/BR%201496_Primary_Order.pdf. This document is included in the Addendum for the Court’s convenience.
11

must approve in advance the government’s use of query terms under that reasonable, articulable suspicion standard. Id. at 7-8.3 This process enables analysts to identify, among other things, previously unknown contacts of individuals suspected of being associated with terrorist organizations.
The Foreign Intelligence Surveillance Court first authorized the government to obtain business records containing bulk telephony metadata from telecommunications companies under the authority of Section 215 in May 2006. App. 206. The Foreign Intelligence Surveillance Court’s authorization of the program is renewed approximately every 90 days. Since May 2006, the Foreign Intelligence Surveillance Court has renewed the program 37 times in court orders
3 Before the changes to the program announced by the President in January 2014, Foreign Intelligence Surveillance Court orders permitted the government to conduct queries of the metadata that would show contacts within three steps of the suspected-terrorist selector. App. 204-05. In addition, the prior version of the program permitted the government to query the database using selectors if National Security Agency officials determined that the selector was reasonably suspected of association with a terrorist organization. App. 208.
12

issued by sixteen different judges.4 Most recently, the Foreign
Intelligence Surveillance Court reauthorized the Section 215 telephony-
metadata program on June 19, 2014, in an order that expires on
September 12, 2014.5
Section 215 generally requires the government to follow
“minimization procedures” governing the use, dissemination, and
retention of information obtained under that statute. See 50 U.S.C.
§ 1861(c)(1) and (g). Consistent with that requirement, the Foreign
Intelligence Surveillance Court orders authorizing the program require
the government to implement comprehensive minimization procedures.
App. 207-09; see generally June 19 Primary Order. Those procedures
4 App. 202-03; In re Application of the FBI for an Order Requiring the Production of Tangible Things, Dkt. No. BR-14-01 (FISC Jan. 3, 2014), available at http://www.dni.gov/files/documents/BR%201401%20Redacted%20Primary%20Order%20(Final).pdf; In re Application of the FBI for an Order Requiring the Production of Tangible Things, Dkt. No. BR-14-67 (FISC Mar. 28, 2014); available at http://www.dni.gov/files/documents/0627/BR_14-67_Primary_Order.pdf; June 19 Primary Order.
5 See June 19 Primary Order. The Director of National Intelligence declassified the fact of that reauthorization on June 20, 2014. See http://www.dni.gov/index.php/newsroom/press-releases/198press-releases-2014/1082-joint-statement-from-the-odni-and-doj-on-thedeclassification-of-renewal-of-collection-under-section-501-of-fisa. (“6/20 AG-DNI Joint Statement”)
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include the requirement that the government query the database only using a selector for which there is reasonable, articulable suspicion (as determined by a court) that the selector is associated with a foreign terrorist organization previously identified to the Foreign Intelligence Surveillance Court as the subject of a counterterrorism investigation. App. 204, 208; June 19 Primary Order 7-8, 12.
The vast majority of the metadata is never reviewed by any person; in 2012, for example, government analysts used fewer than 300 suspected-terrorist selectors and the number of records responsive to such queries was a very small percentage of the total volume in the database. App. 205. In 2013, that figure was slightly higher but still only 423.6 Under the judicial orders authorizing the program, government analysts may only review telephony metadata within one or two steps of the suspected-terrorist selector. June 19 Primary Order 7-8, 12.7 The telephony metadata returned from a query do not include the identities of individuals; the content of any calls; or the name,
6http://www.dni.gov/files/tp/National_Security_Authorities_Transp arency_Report_CY2013.pdf.
7 The first step represents an immediate contact of the suspectedterrorist selector; the second step represents an immediate contact of a first-step contact. App. 205.
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address, financial information, or cell site locational information of any telephone subscribers or parties to the call, because the metadata obtained under this program do not contain such information in the first place. App. 203. The Foreign Intelligence Surveillance Court orders also require metadata in the database to be destroyed no later than five years after the information is obtained. App. 208, 246.
The government does not compile comprehensive records or dossiers, even on suspected terrorists, from Section 215 telephony metadata. App. 207. Instead, the government uses the results of specific queries in conjunction with a range of analytical tools to ascertain contact information that may be of use in identifying individuals who may be associated with certain foreign terrorist organizations because they have been in communication with certain suspected-terrorist telephone numbers or other selectors. App. 207. The Foreign Intelligence Surveillance Court’s Section 215 orders prohibit the National Security Agency from disseminating to other agencies any information concerning U.S. persons (which includes citizens and lawful permanent residents, see 50 U.S.C. § 1801(i)) unless a senior National Security Agency official determines that the
15

information is necessary to understand counterterrorism information or assess its importance. App. 207-08. The National Security Agency disseminates under the Section 215 program only the tiny fraction of metadata that are themselves associated with suspected-terrorist activity, or are responsive to queries using those suspected-terrorist selectors. App. 208. Subject to those constraints, the result of this analysis provides information the government may use in counterterrorism investigations.
The program is subject to a rigorous regime of safeguards and oversight, including technical and administrative restrictions on access to the database, internal National Security Agency compliance audits, Department of Justice and Office of the Director of National Intelligence oversight, and reports both to the Foreign Intelligence Surveillance Court and congressional intelligence committees. App. 209. For example, the Foreign Intelligence Surveillance Court orders creating the program require the National Security Agency to report to the Foreign Intelligence Surveillance Court the number of instances in which the National Security Agency has shared with other government
16

agencies Section 215 telephony-metadata query results about U.S. persons. App. 248-49.
The substantial protections in the Section 215 program reflect longstanding minimization requirements imposed by Foreign Intelligence Surveillance Court orders under Section 215 as well as two modifications to the program that were announced by the President in January 2014 and adopted in subsequent Foreign Intelligence Surveillance Court orders. Prior to those modifications, and thus at the time the district court entered its injunction, the Foreign Intelligence Surveillance Court orders establishing the program provided that one of 22 designated officials within the National Security Agency had to determine that a proposed suspected-terrorist selector met the reasonable, articulable suspicion standard. App. 208. Those earlier Foreign Intelligence Surveillance Court orders also permitted the government to obtain query results that revealed metadata up to three steps away from the query selector. App. 205.
In January 2014, the President announced that he was “ordering a transition” that will “end” the “bulk metadata program as it currently exists.” Remarks by the President on Review of Signals Intelligence,
17

http://www.whitehouse.gov/the-press-office/2014/01/17/remarkspresident-review-signals-intelligence. The President announced two modifications to the Section 215 program: limiting analyst review of telephony-metadata query results to contacts within two steps (rather than three) of the suspected-terrorist selector, and requiring an advance judicial finding by the Foreign Intelligence Surveillance Court that the reasonable, articulable suspicion standard is satisfied as to each suspected-terrorist selector used in queries, except in emergency circumstances (in which case the Foreign Intelligence Surveillance Court must retrospectively approve the selector). In February, the Foreign Intelligence Surveillance Court granted the government’s motion to implement those two changes to the program. In re Application of the FBI for an Order Requiring the Production of Tangible Things, Dkt. No. BR-14-01 (FISC Feb. 5, 2014).8
On March 27, 2014, the President further announced, after having considered options presented to him by the Intelligence Community and the Attorney General, that he will seek legislation to replace the Section
8 http://www.dni.gov/files/documents/BR%201401%20MTA%20and%20Order%20with%20redactions%20(Final).pdf.
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215 bulk telephony-metadata program. Statement by the President on the Section 215 Bulk Metadata Program, http://www.whitehouse.gov/the-press-office/2014/03/27/statementpresident-section-215-bulk-metadata-program (“3/27 President Statement”). The President stated that his goal was to “establish a mechanism to preserve the capabilities we need without the government holding this bulk metadata” so as to “give the public greater confidence that their privacy is appropriately protected, while maintaining the tools our intelligence and law enforcement agencies need to keep us safe.” Instead of the government obtaining business records of telephony metadata in bulk, the President proposed that telephony metadata should remain in the hands of telecommunications companies. The President stated that “legislation will be needed to permit the government to obtain this information with the speed and in the manner that will be required to make this approach workable.” Under such legislation, the government would be authorized to obtain from companies telephony metadata within two steps of Foreign Intelligence Surveillance Court-authorized selectors. The President explained that, in the meantime, the government would seek from the
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Foreign Intelligence Surveillance Court a 90-day reauthorization of the existing Section 215 program, and the Foreign Intelligence Surveillance Court has since then entered two orders reauthorizing the program with the President’s two modifications. See 6/20 AG-DNI Joint Statement. III. PROCEEDINGS BELOW
A. These Suits The Foreign Intelligence Surveillance Court issues two kinds of orders under the Section 215 program: so-called “primary orders” authorizing the government to operate, and setting the general ground rules for, the program for approximately 90-day periods; and “secondary orders” issued to individual telecommunications companies that order them to produce business records containing telephony metadata pursuant to the general authorization of the primary order. In June 2013, a classified secondary order of the Foreign Intelligence Surveillance Court issued under Section 215 was disclosed publicly in an unauthorized manner. That order required Verizon Business Network Services—and only that entity—to turn over in bulk certain business records of the company containing telephony metadata.
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App. 250-51. That order expired on July 19, 2013. App. 253. The Director of National Intelligence subsequently confirmed the authenticity of that secondary order. Although the government has disclosed, in redacted form, some primary orders entered by the Foreign Intelligence Surveillance Court renewing the Section 215 program, it has not disclosed or confirmed the existence of any other secondary order; nor has it revealed the identity of any carrier that participates in the program now, or any entity other than Verizon Business Network Services that has participated in the program in the past. See May 2014 Shea Decl. ¶ 7.
Plaintiffs in these consolidated cases are five individuals who allege they are customers of certain telecommunications and Internet companies (not including Verizon Business Network Services). Shortly after the June 2013 unauthorized public disclosure of the Verizon Business Network Services secondary order, plaintiffs brought two related district-court cases challenging the lawfulness of certain government antiterrorism intelligence-gathering activity. In Nos. 145004, 14-5016 (No. 13cv851 in district court), plaintiffs Larry Klayman, Charles Strange, and Mary Ann Strange brought a putative class-action
21

suit challenging the lawfulness of the government’s alleged acquisition and use of bulk telephony metadata from telecommunications providers under Section 215. App. 35-36. Plaintiffs alleged that these activities violated the First, Fourth, and Fifth Amendments to the Constitution, and exceeded the government’s statutory authority, and they sought injunctive relief. Plaintiffs also sought damages from a variety of government officials and private individuals for a number of common law and statutory torts, as well as for the alleged constitutional violations. App. 45-56.
In Nos. 14-5005, 14-5017 (No. 13cv881 in district court), plaintiffs Larry Klayman, Michael Ferrari, Charles Strange, and Matt Garrison brought a putative class-action suit against the government, government officials in their individual capacities, and various private companies and individuals. The complaint challenged what it characterized as the government’s “PRISM” surveillance program, which, plaintiffs alleged, encompassed not only the acquisition of telephony metadata from telecommunications companies, but also the content of telephone communications, as well as the content and associated metadata of Internet-based communications, such as e-mail.
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App. 76-77. Plaintiffs claimed violations of the First, Fourth, and Fifth Amendments, as well as statutory violations, and they sought injunctive relief. Plaintiffs also sought damages from government officials in their individual capacities, and private individuals and companies for a range of statutory and common law torts, as well as for the alleged constitutional violations. App. 80-91.
B. The Preliminary Injunction On October 29, 2013, plaintiffs filed identical motions for preliminary injunctions in both district court cases, asserting that the government’s intelligence-gathering activities were causing them irreparable harm. Those motions sought preliminary relief to “bar[] Defendants from collecting call records under the mass call surveillance program”; to require the government to “destroy all of Plaintiffs’ call records already collected under the program”; and to prevent the government from “querying metadata obtained through the program using any phone number or other identifier associated with Plaintiffs.” App. 95, 112. Construing those motions as seeking relief limited to the government’s Section 215 bulk telephony-metadata program, the
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district court in December 2013 partially granted and partially denied
preliminary injunctive relief. 957 F. Supp. 2d at 8-10.9 The district
court concluded that the factors required for entry of a preliminary
injunction were satisfied here.
The district court first rejected the government’s argument that
plaintiffs were not likely to succeed on the merits of their claims
because they had failed to meet their burden of establishing standing to
sue. The district court agreed that three of the plaintiffs lacked
standing to challenge the Section 215 telephony-metadata program,
because those plaintiffs had not alleged they were subscribers of
telephone services by a telecommunications provider. 957 F. Supp. 2d
9 The district court concluded that it lacked jurisdiction to consider any attempt by plaintiffs to enjoin the government’s collection of Internet information as opposed to the bulk collection of telephony metadata under Section 215. The district court noted that the government had discontinued the bulk collection of Internet metadata in 2011. 957 F. Supp. 2d at 8 n.6. And to the extent plaintiffs purport to challenge the collection of Internet information under Foreign Intelligence Surveillance Act authorities that authorize the targeted collection of foreign-intelligence information, plaintiffs lack standing to pursue those claims. See id. (citing Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013)).
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at 8 n.5.10 But the Court concluded that plaintiffs Larry Klayman and
Charles Strange had demonstrated standing to challenge the Section
215 program, because they had alleged that they are subscribers of
Verizon Wireless cellular telephone services, and because the
government has publicly acknowledged that at one point it had collected
such metadata from another entity, Verizon Business Network Services.
Id. at 26-27. The court thought it irrelevant that Verizon Wireless and
Verizon Business Network Services are not the same entity because of
the government’s representation that the Section 215 program includes
10 The district court also held that the Foreign Intelligence Surveillance Act impliedly precluded plaintiffs’ claims that the Section 215 program exceeded the government’s statutory authority. See 957 F. Supp. 2d at 19-23. Subsequent to the district court’s ruling, however, plaintiffs withdrew their statutory claims from these cases. See Pls.’ Opp. to Gov’t Defs.’ Partial Mot. to Dismiss at 1, Klayman v. Obama, No. 13cv851 (Jan. 30, 2014) (“Plaintiffs . . . hereby withdraw their [Administrative Procedure Act] and [Stored Communications Act] claims”); Third Am. Compl. ¶¶ 38-58, Klayman v. Obama, No. 13cv851 (Feb. 10, 2014) (asserting only constitutional claims); Mot. for Leave to File Second Am. Compl. at 3, Klayman v. Obama, No. 13cv881 (Jan. 30, 2014) (asserting that the proposed amended complaint “remov[es] the cause of action under the [Administrative Procedure Act]”); Proposed Second Am. Compl. ¶¶ 48-68, Klayman v. Obama, No. 13cv881 (Jan. 30, 2014) (proposed amended complaint asserting only constitutional claims). Therefore, the statutory claims that plaintiffs raised earlier in the litigation can no longer even arguably be a basis for holding that plaintiffs are likely to succeed on the merits of these cases and cannot support entry of a preliminary injunction.
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metadata from “multiple” telecommunications networks, and because the district court understood the database to be “comprehensive.” Id. at 27. The court also held that plaintiffs suffer a constitutionally cognizable injury each time the government electronically queries the Section 215 database because “plaintiffs’ metadata . . . is analyzed, manually or automatically” whenever an electronic query of the database is run—even if plaintiffs’ metadata is never seen by any human being as part of a query result. Id. at 28.
The court next found that plaintiffs were likely to succeed on their claim that the Section 215 telephony-metadata program violates the Fourth Amendment. In analyzing that claim, the district court considered the program as it operated before the President announced changes in January 2014 generally requiring judicial authorization before querying the Section 215 database, and limiting analysis of query results to two, rather than three, steps away from a suspectedterrorist selector. See 957 F. Supp. 2d at 15-18.
The court first rebuffed the argument—which has been accepted by multiple judges of the Foreign Intelligence Surveillance Court and other district court judges—that Smith v. Maryland, 442 U.S. 735
26

(1979), establishes that there is no Fourth Amendment privacy interest in telephony metadata voluntarily provided to, or created by, telecommunications companies. 957 F. Supp. 2d at 30-37. Smith held that an individual had no cognizable privacy interest in information the government had obtained from a telephone “pen register,” which recorded the numbers dialed from Smith’s phone. 442 U.S. at 743-44. The Court reasoned that Smith lacked such an interest because he had voluntarily transmitted them to the telephone company, which kept the information in its business records. Id. at 742-44.
The district court below agreed that “what metadata is has not changed over time” since Smith was decided. 957 F. Supp. 2d at 35 (emphasis the district court’s). The district court nonetheless adopted the novel conclusion that advances in technology since the Supreme Court decided Smith, as well as the larger scale of the Section 215 telephony-metadata program, meant that the Supreme Court’s decision “simply does not apply” here. Id. at 31; see id. at 31-37. The district court thus concluded that collection of telephony metadata under the Section 215 program is a Fourth Amendment “search.” Id. at 37.
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The district court then concluded that obtaining telephony metadata about plaintiffs’ calls under the Section 215 program was likely unreasonable under the Fourth Amendment. The court rejected the argument that any infringement of a privacy interest effected by the Section 215 program was reasonable under the standard applicable to searches that serve “special needs” of the government. 957 F. Supp. 2d at 38-39. The court did not deny that the Section 215 program served special government national security and safety needs, but concluded that plaintiffs had cognizable privacy interests that outweighed those needs. Id. at 39-41. The court characterized plaintiffs’ privacy interest in third-party business records containing call information about them as “very significant.” Id. at 39. The court expressed “serious doubts” about the efficacy of the metadata program “as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.” Id. at 40-41. The court, in particular, faulted the government for not “cit[ing] a single instance in which analysis of the [National Security Agency’s] bulk metadata collection actually stopped an imminent attack.” Id. at 40.
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Next, the court ruled that plaintiffs would suffer irreparable injury to their constitutional rights without preliminary relief. 957 F. Supp. 2d at 42.
Finally, the district court held that the balance of the equities weighed in favor of imposing a preliminary injunction. The court reiterated its belief that plaintiffs have significant privacy interests in metadata about their calls contained in business records, and disagreed with the government’s assessment of the importance of the Section 215 telephony-metadata program to national security. 957 F. Supp. 2d at 43.
The district court stayed its preliminary injunction pending appeal. 957 F. Supp. 2d at 10.
The government filed notices of appeal of the district court’s orders in both district court cases. App. 588, 590. Plaintiffs crossappealed in both cases. App. 592, 594. This Court has consolidated both sets of appeals.
SUMMARY OF ARGUMENT The district court preliminarily enjoined the operation of an important government antiterrorism program based on the court’s
29

characterization of that program as an “almost-Orwellian” construct that amasses a “wealth of detail” about individuals, thus enabling “continuous, daily searches of virtually every American citizen without any particularized suspicion.” 957 F. Supp. 2d 33, 36, 39. That caricature bears no resemblance to reality.
Under the Section 215 program, the government acquires from telecommunications companies business records that contain telephony metadata reflecting the time, duration, dialing and receiving numbers, and other information about telephone calls, but that do not identify the individuals involved in, or include the content of, the calls. The government has never collected the call records of all Americans under this program, and does not use the Section 215 database to indiscriminately assemble private details about anyone. Instead, the government conducts, pursuant to judicial authorization, targeted queries of certain metadata in that database associated with individuals suspected of ties to terrorism. Records of metadata about the calls of other individuals are available for analysis under this program only in the small fraction of instances in which the metadata
30

in those records are within one or two degrees of contact with another record reasonably suspected of association with terrorism.
The district court erred in entering preliminary injunctive relief against this program, and the injunction should be reversed.
1. Plaintiffs have not established standing to sue or that they would suffer irreparable harm absent preliminary relief. There is no evidence that the government has ever collected any information about plaintiffs’ calls under the Section 215 telephony-metadata program. Plaintiffs Klayman and Strange aver that they are subscribers of Verizon Wireless, but provide no evidence that the government has ever acquired any business records from that company under the Section 215 program. The district court relied on the fact that the government has acknowledged that, for several months in 2013, it collected business records containing telephony metadata from Verizon Business Network Services. But that is not the same entity as Verizon Wireless, and plaintiffs and the district court could only speculate about the identities of carriers who have provided in the past, and are providing now, business records under the Section 215 program. There is likewise no evidence to support the district court’s further speculation that the
31

government must be collecting all telephone records from Verizon Wireless based on the mere fact that the government has acknowledged that the Section 215 program is broad in scope.
Plaintiffs likewise have not established standing based on their claims that the Section 215 bulk telephony-metadata program chills their activities—and might chill the activities of those who might want to communicate with them—because they fear that government employees may learn confidential information about plaintiffs’ communications. Because only a small fraction of the Section 215 telephony metadata is actually reviewed by any person, plaintiffs’ asserted chilling injuries are based on unexplained speculation, and subjective chilling effects grounded in such speculation do not support Article III standing.
2. The district court also erred in concluding that plaintiffs were likely to succeed on their claim that the Section 215 program violates the Fourth Amendment. Every other judge who has decided the question has correctly concluded that the district court’s holding conflicts with the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979), which held that individuals lack a Fourth Amendment
32

privacy interest in telephone call record information provided by callers to their telecommunications companies. In concluding otherwise, the district court below relied on the novel logic that changes in technology and differences between the scope of the Section 215 program and that of the pen register arrangement in Smith vitiate its holding. That reasoning is a non sequitur, because those changes do not diminish the force of Smith’s basic rationale—that telecommunications subscribers relinquish any cognizable privacy interest in information that they voluntarily convey to their telecommunications companies, which is then aggregated and maintained in the business records of those companies. That doctrine is binding law and serves important functions. The notion that plaintiffs’ Fourth Amendment privacy interests have been infringed by the Section 215 program is especially implausible, given that it is entirely speculative whether any government analyst has ever reviewed, or ever would review, metadata about plaintiffs’ calls.
Even if plaintiffs possessed a cognizable privacy interest in business records consisting of telephony metadata—and they do not— producing those records to the government under Section 215 is
33

reasonable and permissible under the Fourth Amendment’s special needs doctrine. The Section 215 telephony-metadata program serves the paramount government interest in preventing and disrupting terrorist attacks on the United States, a compelling special governmental need. And because of the significant safeguards in the program—including a requirement of court authorization based on reasonable suspicion before a human analyst accesses the data—the impact, if any, on legitimate privacy concerns is minimal.
3. The district court abused its discretion in concluding that the balance of the equities tips in plaintiffs’ favor. The Section 215 telephony-metadata program serves important national security interests, and courts are rightly sensitive to the risks of handcuffing the government’s efforts to prevent harm to the nation. By contrast, plaintiffs have at most a minimal privacy interest in having metadata about their calls removed from the Section 215 database. Moreover, the district court’s injunction is inappropriate as preliminary relief because it would apparently require the government to refrain from collecting and to destroy metadata, measures that could not be undone if the government were to prevail in the litigation ultimately.
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STANDARD OF REVIEW Entry of a preliminary injunction is “an extraordinary remedy
that may only be awarded upon a clear showing that the plaintiff is
entitled to such relief.” Winter v. Natural Res. Def. Council, 555 U.S. 7,
22 (2008). “A plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance
of equities tips in his favor, and that an injunction is in the public
interest.” Id. at 20.
In reviewing the grant of a preliminary injunction, this Court
considers de novo the district court’s legal conclusions. See Sherley v.
Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011). Any balancing of the
preliminary injunction factors is reviewed for abuse of discretion. Id.
ARGUMENT THE DISTRICT COURT ERRED IN ENTERING A PRELIMINARY INJUNCTION AGAINST THE OPERATION OF THE SECTION 215 BULK TELEPHONY-METADATA PROGRAM A. Plaintiffs Have Not Demonstrated Standing To
Challenge The Section 215 Bulk Telephony-Metadata Program Plaintiffs have not demonstrated that the government has ever
collected any telephony metadata associated with any of their calls. 35

Plaintiffs, moreover, cannot show that any metadata about their calls have ever been, or will ever be, reviewed by government personnel. And plaintiffs have identified no other injury sufficient to confer standing to challenge the Section 215 program.
1. To establish Article III standing, plaintiffs must identify an injury that is “‘concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’” Amnesty Int’l, 133 S. Ct. at 1147 (citations omitted). The “standing inquiry has been especially rigorous when,” as here, a plaintiff urges that “an action taken by one of the other two branches of the Federal Government was unconstitutional,” and where “the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs.” Id. at 1147.
The Supreme Court’s decision in Amnesty International is particularly instructive. In Amnesty, the plaintiffs were various human-rights, labor, and media organizations who sought to challenge the constitutionality of amendments to the Foreign Intelligence Surveillance Act made in 2008 that expanded the government’s authority to conduct surveillance of non-U.S. persons located abroad.
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133 S. Ct. at 1144. The Court rejected the plaintiffs’ speculation that their communications might be subject to surveillance under the authority conferred by those amendments, noting that this claimed injury rested on a “speculative chain of possibilities,” such as whether the government would target their communications for surveillance and whether the government would intercept plaintiffs’ communications even if the government targeted them. See id. at 1148-52.
2. Here, as in Amnesty, plaintiffs’ claim to injury as a result of the Section 215 program is based only on speculation. Plaintiffs Klayman and Strange express concern that their communications will be “overheard or obtained” under the Section 215 program and in some unspecified way “used against” them. App. 100, 102, 345. Such an allegation of future injury, as the Supreme Court has “repeatedly reiterated,” “‘must be certainly impending to constitute injury in fact,’”; “‘[a]llegations of possible future injury’ are not sufficient.” Amnesty Int’l, 133 S. Ct. at 1147 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)) (alteration and emphasis by the Court); see also
37

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006).11 Plaintiffs’ asserted future injury rests on an impermissibly speculative causal chain.
First, plaintiffs can only speculate whether the government has ever collected any metadata about them at all. The only support plaintiffs provide for that assumption is their assertion that they are subscribers of Verizon Wireless cellular phone service. App. 98, 101. But there is no evidence in the record that the government has acquired metadata from Verizon Wireless under the Section 215 program. The only telecommunications carrier the government has publicly acknowledged to have received Section 215 production orders is a separate entity, Verizon Business Network Services—the entity that was the subject of the Foreign Intelligence Surveillance Court order that was disclosed publicly without authorization in June 2013.
11 In some instances, the Supreme Court has “found standing based on a ‘substantial risk’ that the harm will occur.” Amnesty Int’l, 133 S. Ct. at 1150 n.5; see, e.g., Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014). But “to the extent that the ‘substantial risk’ standard is relevant and is distinct from the ‘clearly impending’ requirement” in this context, Amnesty Int’l, 133 S. Ct. at 1150 n.5, plaintiffs have fallen short of that standard as well.
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The district court did not dispute that those two entities are distinct, but found standing based on its speculation that the government must be collecting metadata from Verizon Wireless because of the government’s representation that the Section 215 program operates “across multiple telecommunications networks” and because Verizon Wireless is the nation’s largest wireless telecommunications carrier. 957 F. Supp. 2d at 27 (internal quotation marks and emphasis omitted). But the Section 215 telephony-metadata program, though broad in scope, has never encompassed all, or even virtually all, call records and does not do so today. See May 2014 Shea Decl. ¶ 8. Contrary to the district court’s speculation, it does not follow that the government must under the Section 215 program collect metadata from all of the three “largest carriers” in order for that program to “serve its . . . function.” 957 F. Supp. 2d at 27.
3. Even if there were evidence that the government had collected metadata about plaintiffs’ telephone calls under the Section 215 program, plaintiffs would still lack standing. Plaintiffs claim injury based on their allegation that the government will “use” metadata about their calls in some unspecified way “against” them. App. 100,
39

102, 345. Plaintiffs, however, provide no explanation for how those injuries could arise if government personnel never review any metadata about plaintiffs’ calls that may be contained in the Section 215 database. Again, information in the Section 215 database is subject to substantial protections and limits on access imposed by orders of the Foreign Intelligence Surveillance Court. Those orders do not permit indiscriminate access to or review of the metadata; instead, there must generally be an advance judicial finding that a given selector is suspected of association with terrorism, and only the small fraction of metadata responsive to queries using such selectors may ever be reviewed.
Indeed, those protections are even more robust today than they were when the district court entered its preliminary injunction in December 2013. At that time, no judicial finding was required before querying the database; and query results could return metadata within three steps, rather than the current two, of the suspected-terrorist selector. See 957 F. Supp. 2d at 16 (stressing that, under the old version of the program, “intelligence analysts, without seeking the approval of a judicial officer, may access the” Section 215 database
40

(emphasis the district court’s)); id. at 16 n.21 (describing the “spiderweb-like reach of the three-hop search”). Thus, there is only a speculative prospect that metadata about plaintiffs’ calls would ever be used as a selector to query, or be among the metadata included in the results of queries of, the telephony metadata.
The district court thought that fact immaterial because it believed that plaintiffs suffer a cognizable Article III injury each time the government queries the database, because all information in it “is analyzed . . . whenever the Government runs a query.” 957 F. Supp. 2d at 28.12 But even if that were true, and it is not because a person never sees the information queried other than the results, the district court did not explain how queries of the database that return no information about plaintiffs would harm them. Nor did the district court elaborate on how metadata that no person reviews could reveal any details—let alone “a wealth of detail,” id. at 36—about any individual. See, e.g., Amnesty Int’l, 133 S. Ct. at 1147 (requiring identification of a “concrete,
12 The district court cited no allegations or evidence to support this assertion, and there are none.
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particularized, and actual or imminent” harm that is “fairly traceable” to the conduct complained of (internal quotation marks omitted)).
In any event, it is no more an injury for a computer query to rule out particular telephony metadata as unresponsive to a query than it would be for a canine sniff to rule out a piece of luggage as nonresponsive to a drug investigation. See, e.g., United States v. Place, 462 U.S. 696, 707 (1983) (canine sniff of luggage does not violate a reasonable expectation of privacy); Defenders of Wildlife v. Perciasepe, 714 F.3d 1317, 1323 (D.C. Cir. 2013) (injury for Article III standing purposes must be “an invasion of a legally protected interest”). Where telephony metadata associated with particular calls remain unreviewed and never come to any human being’s attention, there is no invasion of any cognizable privacy interests, and no injury to support standing to sue.
4. Finally, plaintiffs’ asserted injuries are entirely attributable to their subjective, speculative fear that the government may, in some unspecified way, use any information the government possesses about them against them. Both this Court and the Supreme Court have made clear that such amorphous fears are not a basis for challenging a
42

government intelligence-gathering program. See Amnesty Int’l, 133 S. Ct. 1152-53; Laird v. Tatum, 408 U.S. 1, 10-14 (1972); United Presbyterian Church v. Reagan, 738 F.2d 1375, 1378-79 (D.C. Cir. 1984) (Scalia, J.,).
In Presbyterian Church, for example, the plaintiffs asserted standing to challenge government surveillance practices set forth in an executive order. This Court rejected standing to sue because plaintiffs had not asserted that they “suffered some concrete harm (past or immediately threatened) apart from the ‘chill’ itself.” 738 F.2d at 1378. Here, as in Presbyterian Church, plaintiffs have made no attempt to identify any concrete way in which the government may use any metadata about their calls against them, and “no part of the challenged scheme imposes or even relates to any direct governmental constraint upon the plaintiffs.” Id. at 1380.
Similarly, in Laird, the Supreme Court made clear that standing cannot be supported by plaintiffs’ speculative fear that the government might “in the future take some other and additional action detrimental to” them. 408 U.S. at 11, 13-14. Notably, in Laird that was true even though the government had subjected those plaintiffs to surveillance.
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See id. at 39 (Brennan, J., dissenting). Plaintiffs’ unelaborated fears of unspecified government action create no case or controversy. See Presbyterian Church, 738 F.2d at 1380.
B. Plaintiffs Are Not Likely To Succeed On Their Claim That The Section 215 Program Violates The Fourth Amendment 1. The Program Does Not Infringe A Constitutionally Protected Privacy Interest
The Supreme Court has rejected the premise of plaintiffs’ Fourth Amendment argument, holding that there is no reasonable expectation of privacy in the telephone numbers a person dials in order to place a telephone call. In Smith, the Supreme Court held that the government’s recording of the numbers dialed from an individual’s home telephone, through the installation of a pen register at a telephone company, is not a search under the Fourth Amendment. Smith, 442 U.S. at 743-44. Except for the district court below, every other court to have decided the matter—including numerous decisions of the Foreign Intelligence Surveillance Court as recently as June of this year—has correctly relied on the holding of Smith to conclude that the acquisition from telecommunications companies of business records consisting of bulk telephony metadata is not a search for purposes of the
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Fourth Amendment. See App. 134, 178; see also In re Application of the
FBI for an Order Requiring the Production of Tangible Things, Dkt. No.
BR-14-01 (FISC Mar. 20, 2014) (“March 2014 FISC Op.”);13 In re
Application of the FBI for an Order Requiring the Production of
Tangible Things, Dkt. No. BR-14-96 (FISC June 19, 2014);14 Smith v.
Obama, 2014 WL 2506421, at *4 (D. Idaho June 3, 2014); ACLU v.
Clapper, 959 F. Supp. 2d 724, 752 (S.D.N.Y. 2013); United States v.
Moalin, 2013 WL 6079518, at *5-8 (S.D. Cal. Nov. 18, 2013).
Smith is based on fundamental Fourth Amendment principles.
First, the Court recognized that, because the government ascertained
the numbers dialed from a particular telephone by installing equipment
“on telephone company property,” the petitioner there “obviously [could
not] claim that his ‘property’ was invaded or that police intruded into a
‘constitutionally protected area.’” Smith, 442 U.S. at 741. The Court
also contrasted a pen register, which collects numbers dialed, with a
13 This opinion and order is available at: http://www.dni.gov/files/documents/BR%201401_FISC_Opinion_and_Order_March_20_2014.pdf. It is also reproduced in the Addendum to this brief.
14 This opinion is available at: http://www.dni.gov/files/documents/0627/Memorandum_Opinion_in%20 BR_14-96.pdf. It is also reproduced in the Addendum to this brief.
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listening device that would permit the government to monitor the content of communication. Id. (noting that “pen registers do not acquire the contents of communications” (emphasis the Court’s). Thus, the only Fourth Amendment issue in Smith was whether a telephone user has a reasonable expectation of privacy in the numbers he conveys to the phone company. Because telephone users convey numbers to the telephone company to complete their calls, and because the telephone company can and does routinely record those numbers for legitimate business purposes, the Court held that any “subjective expectation that the phone numbers [an individual] dialed would remain private . . . is not one that society is prepared to recognize as reasonable.” Id. at 743 (internal quotation marks omitted).
In so holding, the Smith Court reaffirmed the established principle that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” 442 U.S. at 74344. Just as “a bank depositor has no legitimate expectation of privacy in financial information voluntarily conveyed to . . . banks and exposed to their employees in the ordinary course of business,” a telephone user has no reasonable expectation that conveying a telephone number to
46

the company will protect that number from further disclosure. Id. at 744 (internal quotation marks omitted).
The third-party doctrine reaffirmed in Smith is well established and creates a readily discernible bright-line rule establishing what is, and is not, protected under the Fourth Amendment. Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561, 564-65 (2009). It would be nearly impossible for government officials to divine on a case-by-case basis whether an individual might have an expectation of privacy in particular information that the person has conveyed to a third party, and certainty is essential in this area to facilitate compliance with the Constitution. Id. at 581-86.
Indeed, the Fourth Amendment interests here are in some respects even weaker than in Smith. To begin with, this case concerns business records maintained by telecommunications companies for their own business purposes, whereas the pen register in Smith directly intercepted the transmission of information from a subscriber to a telecommunications company. Plaintiffs have no reasonable expectation of privacy in corporate business records. See Minnesota v.
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Carter, 525 U.S. 83, 88 (1998); Rakas v. Illinois, 439 U.S. 128, 133-34 (1978).
In Smith, moreover, the police targeted information about the phone calls of a single, known individual, ascertained who he was calling, and used that information to arrest and prosecute him. 442 U.S. at 737, 741-42. Here, in contrast, the government may review metadata under the Section 215 program only in extremely restricted circumstances that are not remotely likely to implicate information about plaintiffs’ calls.
The district court attempted to distinguish Smith on a number of grounds; none is persuasive. First, the district court suggested that the pen register in Smith “was operational for only a matter of days,” whereas under the Section 215 program the government retains records for a number of years. 957 F. Supp. 2d at 32. Smith, however, was explicit that “[t]he fortuity of whether or not the phone company”— which the Court assumed to be an agent of the government, see 442 U.S. at 739 n.4—“in fact elects to make a quasi-permanent record of a particular number dialed does not in our view, make any constitutional difference,” id. at 745. The greater time period of metadata collected
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does not validly distinguish Smith, because Smith makes clear that no Fourth Amendment privacy interest exists in any of the data voluntarily conveyed to a telephone company. The Foreign Intelligence Surveillance Court recently explained, in rejecting the district court’s reasoning, that the third-party disclosure principle “applies regardless of the disclosing person’s assumptions or expectations with respect to what will be done with the information following its disclosure.” March 2014 FISC Op. 15 (quoting Smith, 442 U.S. at 744: ‘the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if information is revealed on the assumption that it will be used only for a limited purpose’) (emphasis the Foreign Intelligence Surveillance Court’s). For example, once an individual engaged in criminal activity discloses information to a government informant, the individual cannot restrict what the informant may do with the information, because the disclosure vitiates any privacy interest. See, e.g., Lopez v. United States, 373 U.S. 427, 438 (1963). The district court’s attempted distinction makes no difference.
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Second, the district court suggested that under the Section 215 program, telecommunications providers “operate what is effectively a joint intelligence-gathering operation” with the government, whereas in Smith “a third party” was “collect[ing] information and then turn[ing] it over to law enforcement.” 957 F. Supp. 2d at 33. That characterization of the Section 215 program is fictional; in fact, as explained above, the production of a company’s own business records is, if anything, less intrusive than the installation of a pen register in Smith—particularly where, as here, there is no evidence or reason to believe that records pertaining to plaintiffs’ calls have been or ever will be reviewed by government analysts. Under the Section 215 program, the government collects business records from telecommunications providers that the companies themselves maintain. See App. 202. The Supreme Court in Smith emphasized that it was precisely because a telephone company could and did maintain such call records that an individual has no actual expectation of privacy (let alone a reasonable one) in that information. See 442 U.S. at 743 (“Telephone users typically know that they must convey numerical information to the phone company . . . and that the phone company does in fact record this information for a
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variety of legitimate business purposes.”). In any event, the Supreme
Court premised Smith on the assumption that the phone company was
“deemed an ‘agent’ of the police for purposes of this case.” Id. at 739 n.4
(internal quotation marks the Court’s).
Third, the district court opined that the larger scale of metadata
collection enabled by advances in what it characterized as “almost-
Orwellian technology” since Smith has changed the privacy interests at
stake. 957 F. Supp. 2d at 33. That assertion overlooks that Fourth
Amendment rights “are personal in nature, and cannot bestow vicarious
protection on those who do not have a reasonable expectation of privacy
in the place to be searched.” Steagald v. United States, 451 U.S. 204,
219 (1981); accord, e.g., Carter, 525 U.S. at 88; Rakas, 439 U.S. at 133-
34.15 Under Smith, no caller has a reasonable expectation of privacy in
the telephone numbers he dials. The Foreign Intelligence Surveillance
Court has correctly recognized that “where one individual does not have
15 Thus, plaintiffs cannot invoke the Fourth Amendment rights of others, even if there were a reasonable expectation of privacy in telephony metadata. See, e.g., Rakas, 439 U.S. at 137-38; United States v. Haqq, 278 F.3d 44, 47 (2d Cir. 2002) (an individual’s Fourth Amendment rights are violated only when the challenged conduct invaded his own legitimate expectation of privacy rather than that of a third party).
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a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.” App. 137. Accordingly, as the Foreign Intelligence Surveillance Court recently explained in response to the district court’s analysis here, “the aggregate scope of the collection and the overall size of [the National Security Agency’s] database are immaterial in assessing whether [] any person’s reasonable expectation of privacy has been violated such that a search under the Fourth Amendment has occurred.” March 2014 FISC Op. at 20. The Supreme Court and other courts agree. See, e.g., United States v. Dionisio, 410 U.S. 1, 13 (1973) (where single subpoena was a reasonable seizure, it was not “rendered unreasonable by the fact that many others were subjected to the same compulsion”); In re Grand Jury Proceedings, 827 F.2d 301, 305 (8th Cir. 1987) (rejecting argument that a subpoena was unreasonable under the Fourth Amendment because it “may make available . . . records involving hundreds of innocent people”); United States v. Rigmaiden, 2013 WL 1932800, at *13 (D. Ariz.
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May 8, 2013) (no Fourth Amendment violation when government
acquired 1.8 million IP addresses).16
Finally, the district court pointed to the fact that cell phones did
not exist in 1979, but are ubiquitous now, and are used for many
purposes other than calling, meaning that “people in 2013 have an
entirely different relationship with phones than they did thirty-four
years ago.” 957 F. Supp. 2d at 36. Metadata today, the district court
stated, “reflects a wealth of detail about . . . familial, political,
professional, religious, and sexual associations,” and “reveal an entire
mosaic—a vibrant and constantly updating picture of the person’s life.”
Id. And the district court pointed out that cell phones today are used as
far more than just calling devices; they are also used, for example, as
“maps and music players,” or as a “lighter[] that people hold up at rock
concerts.” Id. at 34; see also Riley v. California, 134 S. Ct. 2473, 2489
16 For these reasons, plaintiffs’ Fourth Amendment claim fails regardless of the scope of the business records obtained under the program. The district court’s mistaken belief that the Section 215 bulk telephony-metadata program includes all or virtually all of the telephony metadata of Americans thus does not alter the result here. See supra p. 10-11. Many details of the program remain classified, but unsupported assumptions about the program cannot justify the extraordinary remedy of preliminary injunctive relief.
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(2014) (noting that cell phones today could “just as easily be called
cameras, video players, rolodexes, calendars, tape recorders, libraries,
diaries, albums, televisions, maps, or newspapers”). In Riley, the
Supreme Court recently relied on these many other functions served by
cell phones in holding that police generally must obtain a warrant
before searching a cell phone seized incident to an arrest. See Riley, 134
S. Ct. at 2489-93. But the district court’s observation about the
capabilities of cell phones and the Supreme Court’s decision in Riley
have no bearing on this case.
The preliminary injunction under review in these appeals
concerns solely telephony metadata and has nothing to do with uses for
cell phones beyond calling.17 As to that use, even the district court
17 The Supreme Court made clear in Riley that “[b]ecause . . . these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.” 134 S. Ct. 2489 n.1 (emphasis the Court’s). The question here, by contrast, is whether obtaining telephony metadata is a “search” at all. See id. at 24 (refusing to apply Smith because “[t]here is no dispute here that the officers engaged in a search”). The purpose and operation of the Section 215 telephony-metadata program, moreover, differ critically from the searches of a cell phone’s content incident to arrest in Riley. For example, the Section 215 telephonymetadata program is conducted pursuant to orders issued by the
Continued on next page.
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agreed that “what metadata is has not changed over time.” 957 F. Supp.
2d at 35 (emphasis the district court’s). Telephony metadata—the
numbers a person dials to make a call, and associated information
recorded by telecommunications providers, such as the date, time, and
duration of the call—could reveal details about individuals in 1979 no
less than today.18 Other business records subject to the third-party
doctrine likewise reflect a breadth of personal information. For
example, the checks, deposit slips, and other customer bank records at
issue in Miller—a case on which Smith relied—surely revealed a variety
of personal details. See 442 U.S. at 743 (citing United States v. Miller,
425 U.S. 435, 442-44 (1976). That point was not lost on the dissenting
Justices in both Smith and Miller, see Smith, 442 U.S. at 748 (Stewart,
J., dissenting); Miller, 425 U.S. at 451 (Brennan, J., dissenting), yet the
Foreign Intelligence Surveillance Court, and review of the metadata requires a showing of reasonable suspicion, whereas the cell-phone searches at issue in Riley were conducted without any judicial authorization or threshold showing of suspicion.
18 The Eleventh Circuit recently held that the collection of cell-site location information can implicate a Fourth Amendment privacy interest. See United States v. Davis, __ F.3d __, 2014 WL 2599917, at *9-*10 (11th Cir. June 11, 2014). The Section 215 telephony-metadata database does not contain cell-site location information. See App. 203. The government is considering whether to seek further review of the Davis decision.
55

Supreme Court in both cases applied the third-party doctrine to hold that any reasonable expectation of privacy was forfeited when customers provided that information to their bank or telephone company. There is no reason to reach a different result with regard to the Section 215 program; as the Foreign Intelligence Surveillance Court observed, “[i]t is far from clear . . . that even years’ worth of non-content call detail records would reveal more of the details about a telephone user’s personal life than several months’ worth of the same person’s bank records.” March 2014 FISC Op. at 21.
The district court’s portrayal of the privacy interests at stake, furthermore, overlooks the carefully crafted safeguards embedded into the Section 215 program, which are designed to avoid indiscriminately yielding a “wealth of detail” about individuals. The governing Foreign Intelligence Surveillance Court orders require specified telecommunications companies to turn over only limited information from their business records under Section 215; that telephony metadata does not include the identity of any particular subscriber or called party. App. 203. The current restrictions imposed by Foreign Intelligence Surveillance Court orders permit access only to telephony
56

metadata that is within two steps of a selector for which there is a reasonable, articulable suspicion (now founded on a prior judicial determination except in exigent circumstances) of association with a terrorist organization. June 19 Primary Order 7-8, 12. Those protections are even more robust than those the district court considered when it entered its injunction in December 2013, when such a judicial finding was not generally required before querying the database, and when analysts could examine metadata within three steps, rather than the current two, of a selector. See 957 F. Supp. 2d 15-18. There is thus even less basis today for the district court’s assumption that this program reveals private details about millions of individuals. And it bears emphasizing that these “strict protections . . . do not apply to run-of-the-mill productions of similar information in criminal investigations.” March 2014 FISC Op. at 22.
Contrary to the district court’s apparent assumptions, Smith’s principles have guided Fourth Amendment decisions even as to forms of communication that did not exist when the Supreme Court handed down Smith in 1979. See, e.g., United States v. Forrester, 512 F.3d 500, 510-11 (9th Cir. 2008) (email “to/from” and Internet Protocol addressing
57

information); Quon v. Arch Wireless Operating Co., 529 F.3d 892, 905 (9th Cir. 2008) (text message address information), rev’d on other grounds, 560 U.S. 746 (2010); Guest v. Leis, 255 F.3d 325, 335-36 (6th Cir. 2001) (subscriber information such as names, addresses, birthdates, and passwords communicated to systems operators and Internet service providers). This case is more straightforward: it involves telephony metadata, which is the same type of information that was at issue Smith.
The district court also emphasized the larger volume of metadata about each person’s calls that is involved in the Section 215 program, in an effort to distinguish it from Smith, and compared that difference to the difference between short-term and long-term GPS monitoring. 957 F. Supp. 2d. at 30-31. But that comparison is inapt.
In United States v. Knotts, 460 U.S. 276 (1983), the Supreme Court held that the short-term use of a tracking beeper infringes no legally protected privacy interest because an individual has no expectation of privacy in his public movements. Id. at 281-82. In United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), aff’d on other grounds sub nom. United States v. Jones, 132 S. Ct. 945 (2012),
58

however, this Court held that an individual could nonetheless have a privacy interest in long-term GPS monitoring of his movements because GPS monitoring enables the government to aggregate private details of an individual’s life in a way that could not easily be done by a stranger “because the likelihood a stranger would observe all those movements . . . is essentially nil,” 615 F.3d at 560—a conclusion echoed by concurring Justices in United States v. Jones. See 132 S. Ct. at 955-56 (Sotomayor, J., concurring); id. at 962-64 (Alito, J., concurring in the judgment). But the Supreme Court in Smith, as this Court noted in Maynard, recognized that telephony metadata in the business records of telecommunications providers is indeed aggregated: unlike an individual’s public movements, an individual “expects all the numbers he dials to be compiled in a list” maintained by the telephone company. Maynard, 615 F.3d at 561 (citing Smith, 442 U.S. at 742-43). Even if there are more phone calls now than in 1979, the relevant expectation concerning telephony metadata conveyed to a telecommunications carrier is not materially different. Moreover, unlike GPS data, information in the Section 215 telephony-metadata database is not indiscriminately compiled about individuals; rather, the telephony
59

metadata may be reviewed only as part of the highly restricted process of querying. Again, plaintiffs have not shown, and it is not remotely likely, that metadata about plaintiffs’ calls have ever been, or ever will be, the subject of, or responsive to, such a query.
Given the conclusive, controlling effect of Smith, plaintiffs are not likely to succeed on the merits of their Fourth Amendment claim.
2. If Obtaining Metadata Implicated A Fourth Amendment Privacy Interest, The Program Would Still Be Constitutional
If obtaining bulk telephony metadata from the business records of telecommunications companies were a Fourth Amendment search, it would nevertheless be constitutionally permissible. The Fourth Amendment bars only unreasonable searches and seizures, and the Section 215 telephony-metadata program is reasonable under the standard applicable to searches that serve “special needs” of the government. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995); Hartness v. Bush, 919 F.2d 170, 173 (D.C. Cir. 1990). The national security and safety interests served by the Section 215 program are special needs of the utmost importance. See Hartness, 919 F.2d at 173; Cassidy v. Chertoff, 471 F.3d 67, 82 (2d Cir. 2006);
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MacWade v. Kelly, 460 F.3d 260, 270-71 (2d Cir. 2006) (citing Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990)).
The government has shown, and the Foreign Intelligence Surveillance Court has repeatedly concluded, that the Section 215 bulk telephony-metadata program provides an efficient means to identify otherwise-unknown associations (within one or two steps of contact) with telephone numbers and other selectors that are reasonably suspected of being used by terrorist organizations, including connections that retrospective analysis can make evident in calls that occurred before the relevant terrorist connection became known. The Foreign Intelligence Surveillance Court orders authorizing the Section 215 bulk telephony-metadata program authorize the government to retain a historical repository of up to five years’ worth of telephony metadata, cutting across multiple providers, for intelligence analysis purposes that could not be accomplished as effectively, if at all, with more targeted investigative tools, such as probable-cause warrants. App. 213-17, 230-31.
In light of the imperative national-security interests the program serves and the numerous privacy protections that the Foreign
61

Intelligence Surveillance Court has required the government to observe, the program is reasonable under the Fourth Amendment. See U.S. Const. amend. IV. That reasonableness standard requires balancing “the promotion of legitimate governmental interests against the degree to which [any search] intrudes upon an individual’s privacy.” Maryland v. King, 133 S. Ct. 1958, 1970 (2013) (citation and quotation marks omitted). The interest in preventing international terrorist attacks by identifying and tracking terrorist operatives is a national security concern of compelling importance. See Haig v. Agee, 453 U.S. 280, 307 (1981) (“no governmental interest is more compelling” than national security); In re Directives, 551 F.3d 1004, 1012 (FISC-R 2008) (“the relevant governmental interest—the interest in national security—is of the highest order of magnitude”). The Section 215 bulk telephonymetadata program enhances the government’s ability to uncover and monitor unknown terrorist operatives who could otherwise elude detection, and has meaningfully contributed to counterterrorism investigations. App. 213-16, 229-30.
Any Fourth Amendment privacy interest implicated by the Section 215 program, in contrast, is minimal. The governing Foreign
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Intelligence Surveillance Court orders strictly limit review and analysis of the metadata, and there is no non-speculative basis to believe that any information concerning plaintiffs’ calls—or those of the vast bulk of other telephone subscribers—has been or will ever be seen by any person. App. 205-06, 207-09. See King, 133 S. Ct. at 1979 (finding no Fourth Amendment violation where safeguards limiting DNA analysis to identification information alone reduced any intrusion into privacy); Board of Educ. v. Earls, 536 U.S. 822, 833-34 (2002) (no Fourth Amendment violation where restrictions on access to drug testing results lessened intrusion on privacy); Vernonia Sch. Dist., 515 U.S. at 658 (no Fourth Amendment violation where student athletes’ urine was tested for illegal drugs and not for any medical condition); Sitz, 496 U.S. at 450-51 (no Fourth Amendment violation where safety interests served by drunk driving checkpoints outweighed motorists’ interests in driving without being stopped). The government obtains telephony metadata in bulk to preserve the information in a database; the information is then only accessed as part of the highly restricted querying process, which requires judicial approval under a reasonable suspicion standard.
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The record amply establishes that the Section 215 bulk telephonymetadata program, coupled with the targeted and judicially supervised querying of that metadata, is at least a “reasonably effective means” of promoting the government’s national security objectives. Earls, 536 U.S. at 837. Indeed, courts have upheld searches on national security grounds that were arguably more intrusive. See Cassidy, 471 F.3d at 70 (searches of carry-on luggage and vehicles before boarding ferries); MacWade, 460 F.3d at 270-71 (random search of subway passengers’ baggage).
The district court minimized the importance of the Section 215 telephony-metadata program, faulting the government for providing no “instance in which analysis of . . . bulk metadata collection actually stopped an imminent attack.” 957 F. Supp. 2d at 40. But the Fourth Amendment plainly does not require the government to demonstrate that special-needs searches—often one tool of many that promote security and safety—have prevented such specific harms, particularly where, as here, plaintiffs’ cognizable privacy interests are minimal. See Nat’l Treasury Emps. v. Von Raab, 489 U.S. 656, 675 n.3 (1989) (“a demonstration of danger as to any particular airport or airline” is not
64

required since “[i]t is sufficient that the Government have a compelling interest in preventing an otherwise pervasive societal problem from spreading”). Nor was the district court correct to downplay the significance of the Section 215 program in enabling the government to conduct historical analysis, contact-chaining, and timely identification of terrorist contacts. 957 F. Supp. 2d at 40. The ability to analyze quickly past connections and chains of communications to determine terrorist connections can serve important interests in the midst of an active terrorism investigation. The record reflects the views of government officials that the program is a valuable counterterrorism tool. E.g., App. 212-18, 223, 226-30. The President also has stressed the “importance of maintaining this capability.” 3/27 President Statement. The courts owe deference to the assessment by the Executive Branch—which daily confronts threats to our national security and must make difficult judgments on how best to eliminate those threats—not to the district court’s contrary views. See, e.g., Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2727 (2010); cf. Sitz, 496 U.S. at 453-54 (courts should not second-guess “politically accountable officials” on “which among reasonable alternative law
65

enforcement techniques should be employed to deal with a serious public danger”). And while the President has expressed support for legislation to modify the Section 215 program, under which the government would no longer obtain telephony metadata in bulk, the goal remains, at the same time, to preserve the capabilities needed to accomplish the program’s objectives. See, e.g., 3/27 President Statement. The importance of preserving that capability only underscores the important function served by the Section 215 program in its current form.
C. The District Court Abused Its Discretion In Balancing The Equities And Assessing The Public Interest
Neither the public interest nor the balance of the equities supports a preliminary injunction against the Section 215 telephonymetadata program, and the district court abused its discretion in concluding otherwise.
As an initial matter, even if, contrary to the government’s contention, plaintiffs have some cognizable Article III interest in enjoining the Section 215 telephony-metadata program, that interest is surely minimal, particularly given the remote likelihood that metadata pertaining to their calls would ever be reviewed by a human being. On
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the other side of the ledger, the government has a substantial interest in continuing the Section 215 program, a valuable tool in the government’s antiterrorism arsenal, for reasons already explained.
The district court did not dispute “the public’s interest in combating terrorism,” but thought that entering a preliminary injunction would not diminish that interest because the preliminary injunction bars the government from collecting telephony metadata only regarding plaintiffs Klayman and Strange, and requires the government to destroy any metadata it possesses only regarding those two individuals. 957 F. Supp. 2d. at 43. The government has explained, however, that, for technological and practical reasons, complying with those demands could ultimately have a degrading effect on the overall program and would consume considerable resources. App. 218. Moreover, requiring the government to refrain from collecting and to destroy records regarding those plaintiffs would be irreversible, and hence is wholly improper preliminary injunctive relief, because it effectively grants plaintiffs full relief on the merits prematurely. See Dorfmann v. Boozer, 414 F.2d 1168, 1173 n.13 (D.C. Cir. 1969).
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CONCLUSION The district court’s preliminary injunction should be reversed.
Respectfully submitted, STUART F. DELERY
Assistant Attorney General RONALD C. MACHEN JR.
United States Attorney DOUGLAS N. LETTER H. THOMAS BYRON III /s/ Henry C. Whitaker HENRY C. WHITAKER
(202) 514-3180 Attorneys, Appellate Staff Civil Division, Room 7256 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530
JULY 2014
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CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(A) I hereby certify that that this brief complies with the requirements of Federal Rule of Appellate Procedure 32(a)(5) and (6) because it has been prepared in 14-point Century Schoolbook, a proportionally spaced font. I further certify that this brief complies with the type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 12,517 words excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii), according to the count of Microsoft Word.
/s/ Henry C. Whitaker HENRY C. WHITAKER

CERTIFICATE OF SERVICE I hereby certify that on July 14, 2014, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the District of Columbia Circuit by using the appellate CM/ECF system. I further certify that I will cause 8 paper copies of this brief to be filed with the Court within two business days.
/s/ Henry C. Whitaker HENRY C. WHITAKER

 
 [NOT YET SCHEDULED FOR ORAL ARGUMENT]
	  
Nos. 04-5004, 14-5005, 14-5016, 14-5017
IN THE
UNITED STATES COURT OF APPEALS
FOR THE
DISTRICT OF COLUMBIA CIRCUIT
___________________________________
LARRY ELLIOT KLAYMAN ET AL., Plaintiffs—Appellees/Cross-Appellants,
— v. —
BARACK HUSSEIN OBAMA ET AL. Defendants—Appellants/Cross-Appellees.
___________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
________________________________________________________________________
BRIEF FOR PLAINTIFFS-APPELLEES AND REQUEST FOR ORAL ARGUMENT
________________________________________________________________________
LARRY E. KLAYMAN Attorney at Law D.C. Bar No. 334581 2020 Pennsylvania Ave. NW, Suite 345 Washington, DC 20006 Phone: (310) 595-0800 Email: leklayman@gmail.com

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
A. Parties The appeals to the United States Court of Appeals to the District of Columbia Circuit (the “Court”) herein have been consolidated from two related United States District Court for the District of Columbia (the “District Court”) cases, Klayman v. Obama, Civ. No. 13-0851 (Nos. 14-5004, 14-5016 in this Court) (“Klayman I”) and Klayman v. Obama, Civ. No. 13-0881 (14-5005, 14-5017 in this Court) (“Klayman II”). In Klayman I, Larry Elliot Klayman (“Klayman”), Charles Strange (“Mr. Strange”), and Mary Ann Strange (“Mrs. Strange”) are PlaintiffsAppellees/Cross-Appellants. Barack Hussein Obama (“Obama”), Eric H. Holder Jr. (“Holder”), Michael S. Rogers (“Rogers”), National Security Agency (“NSA”), and U.S. Department of Justice (“DOJ”) are Defendants-Appellants (collectively “Government Defendants”). The United States Court of Appeals for the District of Columbia Circuit (the “Court”) has consolidated Nos. 14-5004 and 14-5016 with No. 14-5005 and its cross-appeal, No. 14-5017. Nos. 14-5005 and 14-5017 are appeals from the District Court’s order entered in Klayman II. In Klayman II,

	  

ii	  

Plaintiffs-Appellees/Cross-Appellants are Klayman, Michael Ferrari (“Ferrari”), Mr. Strange, Mrs. Strange, and Matt Garrison (“Garrison”). Defendants-Appellants/Cross Appellees are Holder, Obama, Rogers, NSA, and DOJ.
All above named Plaintiffs in Klayman I and Klayman II are hereinafter collectively “Plaintiffs.” All above named Defendants are hereinafter collectively the “Government Defendants.”
B. Ruling Under Review The Ruling under review is Judge Richard J. Leon’s Opinion and Order, dated December 16, 2013, and reported as Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013). C. Related Cases Two related cases to Klayman I and Klayman II, both of which are pending in the District Court challenging unlawful government surveillance, include Klayman v. Obama, Civ. No. 14-0092 (“Klayman III”) and Paul v. Obama, Civ. No. 14-262 (D.D.C. Feb. 18, 2014). Other related cases include the United States Supreme Court’s (“Supreme Court”) recent decision in Riley v. California, 134 S.Ct. 2473 (2014), and ACLU v. Clapper, 959 F. Supp. 2d 724 (2014), a case filed in the

	  

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Southern District of New York and later appealed in the United States Court of Appeals for the Second Circuit (“Second Circuit”) (No. 14-42 in this Court), against the Government Defendants for their unlawful use of government surveillance.
/s/ Larry E. Klayman LARRY E. KLAYMAN, ESQ.

	  

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TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

GLOSSARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . 8

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
I. THE DISTRICT COURT PROPERLY ENTERED A PRELIMINARY INJUNCTION AGAINST THE OPERATION OF THE SECTION 215 ILLEGAL GOVERNMENT SURVEILLANCE OF BULK TELEPHONY METADATA. . . . . . . . . . . . . . . . . . . . . 21

A. The District Court Properly Concluded That Plaintiffs Have Standing To Challenge The Section 215 Illegal Government Surveillance Of Bulk Telephony Metadata. . . . . . . . . . . . . 21

1. Plaintiffs Do Not Merely Speculate That Their Telephony Metadata Has Been Searched As A Result Of The Section 215 Illegal Government Surveillance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

2. The Section 215 Illegal Government Surveillance Inflicted Injury On Plaintiffs Sufficient To Support Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

	  

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B. The District Court Properly Concluded That Plaintiffs Are Likely To Succeed On Their Claim That The Section 215 Illegal Government Surveillance Violates The Fourth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
1. The Section 215 Illegal Government Surveillance Of Telephony Metadata Constitutes A Search Under the Fourth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2. The Section 215 Illegal Government Surveillance Of Telephony Metadata Is An Unreasonable Search Under the Fourth Amendment. . . . . . . . . . . . . . . . . . . . . . . . 45
C. The District Court Did Not Abuse Its Discretion In Properly Balancing The Equities And Assessing The Public Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
II. THE DISTRICT COURT ERRED IN DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION IN KLAYMAN II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
A. Plaintiffs in Klayman II Are Subscribers Of Verizon. . . . . 54
B. The Government Defendants Have Not Discontinued The Section 215 Illegal Government Surveillance. . . . . . . . . . . 55
C. An Alleged Voluntary Discontinuation Of The Government Defendants’ Illegal Government Surveillance Does Not Render Plaintiffs’ Claims Moot. . . . . . . . . . . . . . . . . . . . . . . 61
D. Plaintiffs Have Provided Sufficient Evidence To Show That The NSA Has Targeted Plaintiffs’ Internet Data Content. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
III. THE COURT SHOULD REACH A DECISION ON PLAINTIFFS’ FIRST AND FIFTH AMENDMENT CLAIMS. . . . . . . . . . . . . . . 67

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

	  

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TABLE OF AUTHORITIES
Cases
* ACLU v. Ashcroft, 322 F.3d 240 (3d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140 (2d Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Am. Freedom Def. Initiative v. Wash. Metro. Area Transit Auth., 898 F.Supp.2d 73 (D.D.C. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Bd. of Educ. v. Earls, 536 U.S. 822 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47,51 Brown v. Chote, 411 U.S. 452 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 Camara v. Mun. Court, 387 U.S. 523 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 Cassidy v. Chertoff, 471 F.3d 67 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Cf. Kyllo v. United States, 533 U.S. 27 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 Chandler v. Miller, 520 U.S. 305 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 46, 51
Chimel v. California, 695 U.S. 752 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
*Authorities upon which we chiefly rely are marked with asterisks.

	  

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City of Ontario v. Quon, 130 S.Ct. 2619 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 45
* Clapper v. Amnesty Int’l USA, 133 S.Ct. 1138 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21, 23
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
David v. Pension Ben. Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Friends of the Earth v. Laidlaw Envt’l Services, Inc., 528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
G & V Lounge, Inc. v. Mich. Liquor Control Comm'n, 23 F.3d 1071 (6th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67,68
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
* Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7 Local 1814, Int’l Longshoremen’s Ass’n v. Waterfront Comm’n of N.Y. Harbor, 667 F.2d 267 (2d Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
MacWade v. Kelly, 460 F.3d 260 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47

	  

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Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456 (6th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68
NAACP. v. Button, 371 U.S. 415 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Nat’l Ass’n of Letter Carriers, AFL–CIO v. U.S. Postal Serv., 604 F. Supp. 2d 665 (S.D.N.Y. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Nat'l Fed'n of Fed. Emps.–IAM v. Vilsack, 681 F.3d 483 (D.C. Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 52
Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 47, 51

*Riley v. California, 134 S.Ct. 2473 (2014) . . . . . . 1, 2, 3, 17, 18, 19, 34, 35, 36, 37, 38, 49, 50
Samson v. California, 547 U.S. 843 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
Smith v. Maryland, 442 U.S. 735 (1979) . . . . . . . . . . 2, 3, 18, 34, 36, 37, 38, 39, 40, 41, 42, 45
Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Shelton v. Tucker, 364 U.S. 479 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70, 71

	  

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Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 47
United States v. Robinson, 414 U.S. 218 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Zurcher v. Stanford Daily, 436 U.S. 547 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
United States v. Ramsey, 431 U.S. 606 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70
Constitution
U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 7, 19, 66, 79, 70
U.S. Const. amend. IV. . . . . . . . 1, 5, 8, 16, 17, 19, 20, 31, 33, 34, 43, 44, 45, 46, 49, 50, 53, 67, 70
U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 6, 8, 20, 67, 71
Statutes
28 U.S.C. § 1292(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
50 U.S.C. § 1861 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 44, 56

	  

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GLOSSARY
“FISA” refers to the Foreign Intelligence Surveillance Act of 1978 “FISC” refers to the United States Foreign Intelligence Surveillance Court “Section 215” refers to Section 215 of the Patriot Act, Public Law 107– 56—Oct. 26, 2001

	  

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“[T]he Fourth Amendment was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself.”
- Supreme Court Chief Justice John Roberts in Riley v. California.
INTRODUCTION
Plaintiffs do not dispute that, under the law, the NSA may
conduct surveillance on persons where there is reasonable suspicion
that they are in communication with terrorists or committing crimes.
However, what the NSA has been doing unlawfully is accessing
telephony metadata of not only Plaintiffs, but hundreds of millions of
Americans, that clearly exceeds Fourth, First, and Fifth Amendment
protections, which is both illegal and criminal. Also, all attorneys,
including Klayman and the ACLU, under a higher standard, are
entitled to protection from unlawful government surveillance as the
Government Defendants’ access to their communications with clients
and other attorneys, via telephone and email, violates their attorney-
client privilege. To protect the rights of Plaintiffs and the American
people, this Court must respectfully uphold the District Court’s
1

preliminary injunction that simply requires the NSA to obey the law. Plaintiffs ultimately want to preserve the status quo, which will not harm anyone.
In Riley v. California, 134 S.Ct. 2473 (2014), a recent landmark Supreme Court decision that invalidates the Supreme Courts’ previous ruling in Smith v. Maryland, 442 U.S. 735 (1979) in the context of this case, Chief Justice John Roberts spoke, and acknowledged the importance and advancement of today’s phone technologies and metadata. 134 S.Ct. at 2489. This is not a pen register, this is metadata; it is every aspect of our lives. This Court must follow Riley as it is the new law of the land.
Chief Justice John Roberts held that police generally must obtain a warrant before searching a cell phone seized incident to an arrest due to the amount of personal and sensitive information that can now be found on any person’s cellphone. See id. at 2489-93. The Supreme Court found that “[M]odern cell phones are not another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life[.]” Id. at 2496.
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The Supreme Court in Smith could not have predicted the extent that cellular technology would advance, nor could it have predicted the extent that data would be searched, the Supreme Court found that today’s technology was nearly inconceivable just a few decades ago. Riley, 134 S.Ct. at 2484. The Supreme Court’s ruling in Riley clearly lays the foundation for what is to come in the present case—that is, that past Supreme Court rulings, around the time of Smith, analyzing unlawful police and government searches, do not apply to the unconceivable circumstances of today.
The District Court has been thoroughly familiar with this case and its current procedural posture, and has appreciated both the importance of the constitutional questions presented and the national security interests at stake. See Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013).1 As the District Court previously ruled, the constitutional issues raised in this case are “at the pinnacle of public national interest.” The District Court found that the Government
1 The Government Defendants inadvertently failed to include the the District Court’s memorandum opinion, dated December 16, 2014, in the original appendix. Plaintiffs will be moving on August 14, 2014 to supplement the appendix, presumably with the Government Defendants’ consent.
	  
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Defendants’ illegal government surveillance of bulk telephony metadata surely “infringes on ‘that degree of privacy’ that the Founders enshrined . . . ,” and that it “cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than [the] systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.” Undoubtedly, the case before us is of extreme national importance.
In this appeal, this Court must respectfully uphold the District Court’s decision to issue a preliminary injunction barring the Government Defendants from collecting, as part of NSA’s illegal government surveillance of bulk telephony metadata, any telephony metadata associated with their personal Verizon accounts and requiring the Government Defendants to destroy any such metadata in its possession that was collected through the illegal government surveillance. Further, this Court must respectfully reverse the District Court’s decision to deny Plaintiffs’ request for a preliminary injunction in Klayman II to preserve the status quo.
The Government Defendants have violated Plaintiffs’ constitutional rights as a result of their illegal use of electronic
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surveillance, as set forth in the complaints in Klayman I and Klayman II. Plaintiffs requested monetary, declaratory, equitable, and injunctive relief as a result of these unlawful acts.
The District Court properly concluded that Plaintiffs have standing to challenge the Section 215 illegal government surveillance of bulk telephony metadata because Plaintiffs do not merely speculate that the Government Defendants searched their telephony metadata, and Plaintiffs suffered injury. The District Court also properly concluded that Plaintiffs are likely to succeed on their Fourth Amendment claim because the Section 215 illegal government surveillance constitutes a search, which is unreasonable under the Fourth Amendment. In properly balancing the equities and assessing the public interest to issue a preliminary injunction, the District Court did not abuse its discretion.
The District Court, however, erred in denying Plaintiffs’ request for preliminary injunction in Klayman II because the Government Defendants, whose repetitive conduct has demonstrated a lack of trustworthiness, have not discontinued the Section 215 illegal government surveillance as they allege, and because Plaintiffs have
5

provided sufficient evidence (the same amount of evidence provided in Klayman I) to show that the NSA has targeted Plaintiffs’ Internet Data Content. These public disclosures include, but are not limited to, Edward Snowden’s revelations, sworn affidavits, the District Court’s opinion, the Government Defendants themselves, a plethora of newspaper and online articles, and statements made by individuals with direct contact to government officials. The District Court also erred in denying injunctive relief to Mrs. Strange because as pleaded she is also a subscriber of Verizon at all times relevant to this lawsuit. Lastly, Plaintiffs respectfully request that this Court reach a decision regarding Plaintiffs’ First and Fifth Amendment Claims.
Plaintiffs understand the extreme importance of national security. At the same time, Plaintiffs also understand the extreme importance of protecting citizens’ privacy, as the Founding Fathers enshrined in the U.S. Constitution. Accordingly, this degree of privacy must be protected by upholding the District Court’s decision to issue a preliminary injunction. As such, due to the extreme constitutional importance of this case, Plaintiffs request that this Court uphold the District Court’s decision to grant a preliminary injunction in Klayman I and reverse the
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District Court’s decision to deny Plaintiffs’ request for a preliminary injunction in Klayman II. This Court must also respectfully remove the stay that the District Court ordered pending appeal so that the District Court’s preliminary injunction can go into full force and effect.
JURISDICTIONAL STATEMENT Plaintiffs invoked the District Court’s jurisdiction under 28 U.S.C. § 1331. See Appendix (“App.”) 39, 74. On December 16, 2013, the District Court entered an order granting in part Plaintiffs’ Motion for Preliminary Injunction in Klayman I and denying in part Plaintiffs’ Motion for Preliminary Injunction in Klayman II. Klayman v. Obama, 957 F. Supp. 2d 1, 9-10 (D.D.C 2013). The District Court entered an order “that (1) bars the Government [Defendants] from collecting, as part of NSA’s illegal government surveillance of bulk telephony metadata, any telephony metadata associated with their personal Verizon accounts and (2) requires the Government [Defendants] to destroy any such metadata in its possession that was collected through the “illegal government surveillance.” App. 43. The District Court stayed its order pending appeal. App. 587. The Government Defendants filed a notice of appeal on January 3,
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2014. Under 28 U.S.C. § 1292(a)(1), this Court has appellate jurisdiction to review the District Court’s order partially granting and partially denying injunctive relief.
ISSUES PRESENTED FOR REVIEW 1. Whether the Government Defendants’ collection of Plaintiffs’ telephony metadata violates the Fourth Amendment. 2. Whether the District Court erred in granting in part Plaintiffs’ Motion for Preliminary Injunction in Klayman I. 3. Whether the District Court erred in denying in part Plaintiffs’ Motion for Preliminary Injunction in Klayman II. 4. Whether the District Court erred in denying injunctive relief to Mary Ann Strange. 5. Whether the Government Defendants’ collection of Plaintiffs’ and citizens’ metadata violates the First and Fifth Amendments.
STATEMENT OF THE CASE Plaintiffs cannot confirm that any changes to the Section 215 illegal government surveillance of bulk telephony metadata, allegedly further enhancing the illegal government surveillance’s privacy protections and safeguards, were in fact adopted by the Foreign
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Intelligence Surveillance Court (the “FISC”). See Gov’t App. Brief p. at 5. Additionally, the FISC automatically grants the Government Defendants’ warrants to collect metadata, and thus, there are no occasions where the Government Defendants’ “requisite factual showing” resulted in a FISC judge’s denial of an entry of a requested ex parte order or a disapproval of the release of tangible things. See id. at 7-8. The Government Defendants contend that “[f]uther review is [ ] available in the [FISA] Court of Review and, ultimately, in the Supreme Court.” See id. at 8. However, only denials of the Government Defendants’ warrant requests are appealable.
Defendants allege that the production of all call detail records of all persons in the United States has never occurred under the illegal government surveillance because production of all these call records has occurred. See id. at 10. Further, the District Court’s correct conclusions that the illegal government surveillance collects “the phone metadata of every telephone user in the United States” and that “all phone companies” participate in the Section 215 illegal government surveillance is in fact supported by the record. See id. The District Courts conclusions are correct. See id. at 11.
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The Government Defendants do not use the Section 215 illegal government surveillance merely as a tool to facilitate counterterrorism investigations—the Government Defendants also use the illegal government surveillance to unlawfully spy on American citizens without a warrant. See id. The Government Defendants, through querying, obtain telephones and other metadata even when a selector, such as a telephone number, is not reasonably suspected of being associated with a terrorist organization. See id. at 11, 14. Plaintiffs dispute that the telephony metadata returned from a query do not include the identities of individuals; the content of any calls; or the name, address, financial information, or cell site locational information of any telephony subscribers or parties to the call, because the metadata obtained under the illegal government surveillance allegedly does not contain such information. See id. at 14-15. The metadata does contain this information, and, in fact, names of individuals can easily be discovered using the illegal government surveillance.
The illegal government surveillance is not subject to a rigorous regime of safeguards and oversight as the Government Defendants allege. See id. at 16. Plaintiffs have not been able to engage in discovery
10

and thus cannot confirm most of the Government Defendants’ statements and allegations pertaining to the illegal government surveillance, including their handling of Plaintiffs’ and citizens’ metadata. Plaintiffs, the District Court, Congress, and other courts, do know, however, that the Government Defendants have been untruthful in a number of occasions regarding the illegal government surveillance’s collection of metadata.
Plaintiffs in Klayman I and Klayman II have been, and are, in fact subscribers of Verizon at all times relevant to this case.
STATEMENT OF FACTS AND PROCEDURAL HISTORY On June 5, 2013, The Guardian, a British newspaper, reported the first materials leaked by former NSA contract employee Edward Snowden that revealed the existence of U.S. government intelligence collection and illegal government surveillance. See Greenwald, NSA collecting phone records of millions of Verizon customers daily, GUARDIAN (London), June 5, 2013; see also Leon Memorandum Opinion, dated Dec. 16, 2013 (“SA”) at 6. The Guardian’s report disclosed a secret FISC order, dated April 25, 2013, that required Verizon Business Network Services to produce to the NSA on “an ongoing daily basis . . .
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all call detail records or ‘telephony metadata’ create by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” Secondary Order, In re Application of the [FBI] for an Order Requiring the Production of Tangible Things from Verizon Business Network Services, Inc. on Behalf of MCI Communication Services, Inc. d/b/a/ Verizon Business Services, No. BR 13-80 at 2 (FISC Apr. 25, 2013) (“Secondary Order”); Supplemental Appendix (“SA”) 6.
The Secondary Order “show[ed] . . . that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk—regardless of whether they are suspected of any wrongdoing.” Greenwald, supra; SA 6-7. The Government Defendants confirmed the authenticity of the Secondary Order as well as the existence of the illegal government surveillance under which “the FBI obtains orders from the FISC pursuant to Section 215 [of the USA PATRIOT Act] directing certain telecommunications service providers to produce to the NSA on a daily basis electronic copies of ‘call detail records.’” Govt.’s Opp’n at 8; SA 7. The illegal government surveillance is “a ‘counterterrorism [illegal government
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surveillance]’ under [50 U.S.C. §] 1861[, conducted for more than seven years, that] collect[s], compiles, retains, and analyzes certain telephony records, which it characterizes as ‘business records’ created by certain telecommunications companies.” SA 15-16. The illegal government surveillance is “meant to detect: (1) domestic U.S. phone numbers calling outside of the United States to foreign phone numbers associated with terrorist groups; (2) foreign phone numbers associated with terrorist groups calling into the U.S. to U.S. phone numbers; and (3) ‘possible terrorist –related communications’ between numbers inside the U.S.” SA 20-21.
The records collected under the illegal government surveillance consist of “metadata,” which includes information about what phone numbers were used to make and receive calls, when the calls took place, and how long the calls lasted. App. 203. Through targeted searches of metadata records, the NSA “tries to discern connections between terrorist organizations and previously unknown terrorist operatives located in the United States.” SA 16. The telephone metadata records, which “[telecommunications] companies create and maintain as part of their business of providing telecommunications services to customers[,]”
13

have been continually produced since May 2006 under the FBI’s production orders from the FISC. See SA 16. The NSA then consolidates the metadata records provided by different telecommunications companies into one database and under the FISC’s orders, the NSA may retain the records for up to five entire years. SA 16. When an NSA intelligence analyst runs a query, the quantity of phone numbers captured is very large, potentially and sometimes up to 1,000,000 numbers total. SA 18-19.
Since the illegal government surveillance began in May 2006, the FISC has regularly issued orders directing telecommunication service providers to produce records in connection with the illegal government surveillance. SA 21. Fifteen different FISC judges have issued thirtyfive orders authorizing the illegal government surveillance and under those orders, the Government defendants must continuously seek renewal of the authority to collect telephony records, which occurs every ninety days. SA 21. The Government Defendants admit that they have failed to comply with the minimization procedures set forth in the orders. SA 21. Judge Reggie Walton of the FISC concluded he had no confidence that the Government was doing its utmost to comply with
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the court’s orders. SA 21-22. Judge John Bates, Presiding Judge of the FISC, found that the Government had misrepresented the scope of its targeting of certain internet communications pursuant to 50 U.S.C. § 1881a. SA 22. The Government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which he Government disclosed a substantial misrepresentation regarding the scope of a major illegal government surveillance collection. SA 23.
After the public revelations of the Government Defendants’ secret schemes in the media, Plaintiffs filed their first complaint, Klayman I, on June 6, 2013. See SA 8. Klayman I Plaintiffs Larry Klayman, Charles Strange, and Mary Ann Strange, all subscribers of Verizon Wireless, brought suit against the NSA, the DOJ, multiple executive officials, whom include President Barack H. Obama, Attorney General Eric H. Holder, Jr., General Keith B. Alexander, Director of the NSA, and U.S. District Judge Roger Vinson, and Verizon Communications as well as its chief executive officer. See App. 33-59; SA 8. On June 9, 2013, Plaintiffs filed an amended complaint in Klayman I. See App. 36-59. As relief, Plaintiffs sought a preliminary injunction “that, during the
15

pendency of this suit, (i) bars [d]efendants from collecting [p]laintiffs’ call records under the mass call surveillance [illegal government surveillance]; (ii) requires [d]efendants to destroy all of [p]laintiffs’ call records already collected under the [illegal government surveillance]; and (iii) prohibits [d]efendants from querying metadata obtained through the [illegal government surveillance] using any phone number or other identifier associated with [p]laintiffs . . . and such other relief as may be found just and proper.” App. 56-59. Plaintiffs filed their second complaint, Klayman II, on June 12, 2013. Klayman II.
On December 16, 2013, the District Court issued its Memorandum Order in Klayman I. The District Court found that it had authority to evaluate Plaintiffs’ constitutional challenges to the NSA’s conduct. SA 5. After careful analysis of the facts, the District Court ruled that the NSA’s bulk telephony metadata collection and analysis violates a reasonable expectation of privacy, SA 47, and thus, the NSA’s illegal government surveillance is an unreasonable search under the Fourth Amendment. SA 62. To determine whether the District Court should grant Plaintiffs’ request for a preliminary injunction, the District Court concluded that “Plaintiffs have standing to challenge the
16

constitutionality of the Government’s bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief.” SA 5. The District Court also concluded that the public interest weighs heavily in favor of granting an injunction. SA 65. Accordingly, the District Court granted the Motion for Preliminary Injunction in Klayman I. App. 586. The District Court determined that it would stay its order pending appeal. Id. On January 3, 2014, the Government Defendants filed a notice of appeal.
On February 3, 2014, in a hearing before the District Court, Plaintiffs orally reiterated their consideration for streamlining the cases and moving as quickly as possible because, as Plaintiffs stated, “when constitutional rights are violated for one minute, that’s one minute too long . . . .” Transcript, Hearing, 11:12-16 (Feb. 3, 2014).
On June 25, 2014, the Supreme Court issued Riley and held that “[t]he police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” Chief Justice John Roberts found, in the majority opinion,
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that the Supreme Court’s decision would “have an impact on the ability of law enforcement to combat crime,” that cell phones are essentially “minicomputers” that “also happen to have the capacity to be used as a telephone,” and that “[p]rivacy comes at a cost.” Riley, 134 S.Ct. at 2493. The Supreme Court also found that “modern cell phones . . . are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Id. at 2484. The Supreme Court held that “a search of digital information on a cell phone does not further [ ] government interests . . . and implicates substantially greater individual privacy interests than a brief physical search.” Id. at 2478. Due to the highly sensitive data located in our cell phones, the Supreme Court further ruled that “a warrant is generally required before [ ] a search, even when a cell phone is seized incident to arrest.” Id. at 2493. Because “[d]igital data stored on a cell phone cannot itself be used as a weapon” and “can endanger no one,” the Government Defendants do not have a compelling reason to search citizens’ telephony and internet metadata at their discretion. See id. at 2485.
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The fact that internet metadata, in addition to telephony metadata, both of which are accessible on a cell phone, is at issue here, makes the present case even more compelling. Indeed, the Supreme Court’s decision will have a substantial impact on the outcome of this case, as it further adds to the fact that the Government Defendants’ Fourth Amendment search of Plaintiffs’ metadata is unreasonable. In fact, Riley, in the context of this case, eliminates Smith. This is not a pen register, this is metadata; it is every aspect of our lives.
SUMMARY OF THE ARGUMENT The District Court properly granted Plaintiffs’ Motion for Preliminary Injunction by finding that Plaintiffs were likely to succeed on the merits of their Fourth Amendment claim against the Government Defendants, and this Court should respectfully affirm the District Court’s decision. The District Court found that the Government Defendants’ surveillance constituted an unreasonable search when they illegally obtained the telephony and Internet metadata records of Plaintiffs and all Americans. Further, the District Court erred in denying a preliminary injunction in Klayman II. Plaintiffs had demonstrated standing and
19

provided sufficient evidence to show that the NSA targeted Plaintiffs’ internet data content. Thus, this Court should respectfully reverse the District Court’s decision to deny Plaintiffs’ Motion for Preliminary Injunction.
Finally, this Court should respectfully reach a decision on Plaintiffs’ First and Fifth Amendment claims because these claims are just as important as Plaintiffs’ Fourth Amendment claim in protecting Plaintiffs’ rights.
STANDARD OF REVIEW This Court “review[s] a District Court's weighing of the four preliminary injunction factors and its ultimate decision to issue or deny such relief for abuse of discretion.” David v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009) “Legal conclusions—including whether the movant has established irreparable harm—are reviewed de novo.” Id.
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ARGUMENT
I. THE DISTRICT COURT PROPERLY ENTERED A PRELIMINARY INJUNCTION AGAINST THE OPERATION OF THE SECTION 215 ILLEGAL GOVERNMENT SURVEILLANCE OF BULK TELEPHONY METADATA.
A. The District Court Properly Concluded That Plaintiffs Have Standing To Challenge The Section 215 Illegal Government Surveillance Of Bulk Telephony Metadata.
As the District Court correctly ruled, Plaintiffs have successfully
demonstrated that the Government Defendants collected Plaintiffs’
telephony metadata without speculation, and the Government
Defendants will continue to do so unless the preliminary injunction is
upheld.2 Plaintiffs have suffered injury as a result of the Government
Defendants’ unlawful activity.
“To establish Article III standing, an injury must be concrete,
particularized, and actual or imminent; fairly traceable to the
challenged action; and redressable by a favorable ruling.” Clapper v.
Amnesty Int’l USA, 133 S.Ct. 1138, 1147 (2013) (quoting Monsanto Co.
2 Plaintiffs in this case can point to strong evidence that, as Verizon customers, their telephony metadata has been collected for the last seven years (and stored for the last five) and will continue to be collected barring judicial or legislative intervention. See App. 343 Suppl. Klayman Aff. ¶ 3 (attesting to status as Verizon customer); App. 101 - Strange Aff. ¶ 2 (same).
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v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)). “Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.” Clapper, 133 S.Ct. at 1147 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 565 n.2 (1992)).
Under the circumstances of this case, the District Court ruled that Plaintiffs have standing to challenge the NSA’s Bulk Telephony Metadata collection and analysis. See SA 36. The District Court held that “[P]laintiffs have standing to challenge both” of the NSA’s illegal government surveillance of bulk telephony metadata’s two potential searches: (1) the bulk collection of metadata and (2) the analysis of that data through the NSA’s querying process.” SA 36.
1. Plaintiffs Do Not Merely Speculate That Their Telephony Metadata Has Been Searched As A Result Of The Section 215 Illegal Government Surveillance.
The District Court properly ruled that the Government Defendants have searched Plaintiffs’ metadata. Plaintiffs and the District Court are well aware that their telephony metadata has been searched by the Government Defendants. In fact, everyone’s metadata
22

has been searched, as concluded by the District Court. In determining whether Plaintiffs met the requirements for standing, the District Court analyzed Clapper and ultimately ruled that the facts that arise in Plaintiffs claims are distinguishable from Clapper.3 In Clapper, where the plaintiffs “could only speculate as to whether they would be surveilled at all, [P]laintiffs in [Klayman I] can point to strong evidence that, as Verizon customers, their telephony metadata has been collected for the last seven years (and stored for the last five) and will continue to be collected barring judicial or legislative intervention.” SA 36-37. The District Court then properly concluded that “[P]laintiffs meet the standing requirements set forth in Clapper, as they can demonstrate that the NSA has collected and analyzed their telephony metadata and
3 “In Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), the Supreme Court held that plaintiffs lacked standing to challenge NSA surveillance under FISA because their ‘highly speculative fear’ that they would be targeted by surveillance relied on a ‘speculative chain of possibilities’ insufficient to demonstrate a ‘certainly impending’ injury. Id. at 1147–50. Moreover, the Clapper plaintiffs’ ‘self-inflicted injuries’ (i.e., the costs and burdens of avoiding the feared surveillance) could not be traced to any provable government activity. Id. at 1150–53.33.” That is not the case here. SA 26.
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will continue to operate the illegal government surveillance consistent with FISC opinions and orders.”4 SA 42.
The Government Defendants attempt to argue that Plaintiffs’ claim to injury is based only on speculation because Plaintiffs “express concern that their communications will be ‘overheard or obtained’ under the Section 215 [illegal government surveillance]” and that “there is no evidence that the Government Defendants collected any information about Plaintiffs’ calls under the [illegal government surveillance].” It is important to point out, however, that the Government Defendants have not denied collecting information about Plaintiffs’ calls.
Under the Government Defendants’ disingenuous if not false legal arguments, no Plaintiff could successfully allege injury absent concrete evidence that their particular metadata had been searched, which is nearly impossible because the Government Defendants refuse to hand over any information or relevant documents, and they refuse to engage in a Fed. R. Civ. P. Rule 26(f) discovery conference, much more participate in responding to any subsequent discovery requests. The individual Defendants refused to even respond to the Complaint,
4 The District Court found that Plaintiffs have standing to challenge the NSA’s querying procedures. SA 38.
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despite being duly served in Klayman I and Klayman II. If this Court were to accept the Government Defendants’ arguments alleging Plaintiffs’ supposed lack of standing, which the District Court has previously denied,5 then any person who “seek[s] to challenge the surveillance [illegal government surveillance] will be caught in a nearly impossible conundrum . . . .” See Leighton Woodhouse, Is The Government Lying About How Much Of Your Metadata It’s Using?, Huffington Post (Aug. 15, 2013), available at http://www.huffingtonpost.com/2013/08/15/governmentmetadata_n_3762050.html.
Plaintiffs would “need to show that their metadata was swept up in an NSA query, a task that requires access to state secrets. Unless the government were to take the unlikely step of granting the opposing counsel the necessary security clearances to acquire this evidence, the standard for achieving standing would be virtually impossible to meet.”6
5 See SA 36. 6 “Even this scenario, however, puts control of the process largely in the [G]overnment's hands, as federal prosecutors [or the Government Defendants] are able to decide whether to press charges and whether to use the NSA-derived evidence, weighing the benefits of doing so against the risk of inviting a challenge to the [illegal government] surveillance [ ].” Woodhouse, Huffington Post, supra. “If federal prosecutors [or the
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Id. The Government Defendants ultimately hold the cards and they refuse to reveal their hand in fear that Plaintiffs’ and the District Courts’ conclusions are accurate.
Even if, for instance, there was no concrete proof that Plaintiffs’ exact metadata had been searched at a given time, Plaintiffs have no need to speculate, and have not speculated, that their metadata has been collected because Plaintiffs have other sufficient evidence, as determined by the District Court, for them to be certain their data has been collected for the last seven years based off of the Government Defendants querying procedures. As stated by the District Court, additional support includes the revelation that the Government Defendants have declassified and authenticated a FISC Order signed by Judge Vinson confirming that the NSA has indeed collected telephony metadata from Verizon. Even more compelling, the District Court found that the Government Defendants themselves described the advantages
Government Defendants] can avoid using NSA-derived evidence . . . , and if their argument on standing is upheld by the courts, then the government can indefinitely forestall any possibility of a plaintiff meeting the “actual and imminent harm” standard. And if the standard for achieving standing is unattainable, then the [illegal government surveillance] [is] effectively immunized from Constitutional challenge.” Id.
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of bulk collection in such a way to convince the Court that “Plaintiff’s metadata—indeed everyone’s metadata—is analyzed, manually or automatically . . . .” SA 39.
The Government Defendants have acknowledged that, for several months in 2013, they collected business records containing telephony metadata from Verizon Business Network Services (“VBNS”), which, they allege “is not the same entity as Verizon Wireless” and [t]he only support plaintiffs provide for that assumption is their assertion that they are subscribers of Verizon Wireless cellular phone service. App. 98, 101. However, the District Court found that the Government Defendants “must under the Section 215 [illegal government surveillance] collect metadata from all of the three “largest carriers” in order for that [illegal government surveillance] to ‘serve its . . . function.’” The District Court was not persuaded by the Government Defendants’ argument and ultimately determined that the Government Defendants were “straining mightily” to find a reason that Plaintiffs lack standing to challenge the metadata collection.
The District Court found, however, that “[t]he Government [Defendants] obviously wanted [the District Court] to infer that the
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NSA may not have collected records from Verizon Wireless (or perhaps any other non-VBNS entity, such as AT&T and Sprint) [and] [that] the Government [Defendants] [made] this argument at the same time [they are] describing in [their] pleadings an [illegal government surveillance of] bulk metadata . . . that can function only because it ‘creates an historical repository that permits retrospective analysis of terroristrelated communications across multiple telecommunications networks, and that can be immediately accessed as new terrorist-associated telephone identifiers come to light.’” SA 27. Accordingly, the District Court ruled “the NSA must have collected metadata from Verizon Wireless.”
Plaintiffs themselves have already shown that they have standing to challenge the illegal government surveillance because Plaintiffs are subscribers of Verizon Wireless cellular telephone services, and their metadata must have been collected as a part of the Government Defendants’ illegal and unconstitutional surveillance.
In addition to the District Court, other courts have found standing in favor of plaintiffs who challenged the Government’s illegal government surveillance. For instance, the issue of standing involving
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almost identical circumstances, and against many of the same Government Defendants, can be found in ACLU v. Clapper, a related case filed in the U.S. District Court for the Southern District of New York. The New York district court found that the plaintiffs also had standing to challenge the Government Defendants’ illegal government surveillance because the Government Defendants had collected telephony metadata related to the plaintiffs’ telephone calls. The Government Defendants were found to have reviewed the ACLU plaintiffs’ records. Similar to Plaintiffs in the present case, every time the NSA queried the phone-records database, it reviewed the ACLU plaintiffs’ records to determine whether the plaintiffs or their contacts were connected to a phone number that the NSA deemed suspicious. As such, like the ACLU plaintiffs and the New York district court, Plaintiffs here and the District Court are aware that Plaintiffs’ telephony metadata has been searched.
For the foregoing reasons, the District Court correctly concluded that Plaintiffs did not merely speculate that their telephony metadata records were searched.
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2. The Section 215 Illegal Government Surveillance Inflicted Injury On Plaintiffs Sufficient To Support Standing.
In concluding that Plaintiffs had standing to challenge the unlawful use of the illegal government surveillance, the District Court also correctly ruled that Plaintiffs were injured when the Government Defendants collected and searched their information.
Whether the Government Defendants actually “reviewed” Plaintiffs’ information is irrelevant to the issue of finding injury for standing. The District Court held that “[P]laintiffs suffer a constitutionally cognizable injury each time the government electronically queries the Section 215 database because ‘[P]laintiffs’ metadata . . . is analyzed, manually or automatically’ whenever an electronic query of the database is run—even if plaintiffs’ metadata is never seen by any human being as part of a query result.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006). As such, Plaintiffs suffer a cognizable Article III injury each time the government queries the database, because all information in the database is analyzed when the Government runs a query. 957 F. Supp.
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2d at 28. Even in the unlikely event where “queries of the database [ ] return no information about plaintiffs,” Plaintiffs would still be harmed. Use of Plaintiffs’ records only aggravates the original injuries inflicted upon Plaintiffs when their data is searched. See, e.g., Nat’l Ass’n of Letter Carriers, AFL–CIO v. U.S. Postal Serv., 604 F. Supp. 2d 665, 675 (S.D.N.Y. 2009) (Chin, J.) (holding that postal employees had standing to bring suit under the Fourth Amendment where they challenged the government’s collection of their medical records from health-care providers); see also Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140 (2d Cir. 2011) (observing that a plaintiff seeking to establish standing to challenge government surveillance “need only establish that its information was obtained by the government.”)).
The Government Defendants have contended that there exists no case or controversy unless Plaintiffs’ records are actually responsive to one of the government’s queries. In their appellate brief to the Second Circuit, the ACLU has addressed this seemingly popular yet meritless argument by the Government Defendants. The ACLU correctly pointed out that not only is “the government’s argument that there is no case or controversy until an analyst “reviews” the information the government
31

has collected . . . simply wrong, [it is] radically so.” In reaching this determination, the ACLU argued that that “[i]f the collection of information could not give rise to a case or controversy, the Constitution would permit the government to copy every email, record every phone call, and make a permanent record of every person’s physical movements—all without ever having to justify its actions to any court [and] [t]he Constitution would be engaged, if at all, only when the government decided to review the data it had collected.” In other circumstances, responsiveness was not relevant in determining whether case or controversy exists. For example, as the ACLU provided, “[a] person whose luggage is inspected has been searched even if the inspection turns up no contraband. A person whose home is subjected to thermal-imaging has been searched even if the scan does not show that the person is growing marijuana.” Cf. Kyllo v. United States, 533 U.S. 27 (2001). “Whether a search has occurred—and, certainly, whether an Article III injury has been inflicted—does not turn on whether the search produces information that the government regards as useful or incriminating.” ACLU Appellate Brief at p.4 n.2.
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For the aforementioned reasons, the District Court correctly concluded that Plaintiffs have successfully shown that their metadata has been searched by the Government Defendants, and that Plaintiffs have been injured as a result of this search. Thus, Plaintiffs have standing to pursue their Fourth Amendment claim against the Government Defendants.
B. The District Court Properly Concluded That Plaintiffs Are Likely To Succeed On Their Claim That The Section 215 Illegal Government Surveillance Violates The Fourth Amendment.
“The basic purpose of th[e Fourth] Amendment, as recognized in countless decisions of th[e] [Supreme] Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Mun. Court, 387 U.S. 523, 528 (1967) (emphasis added); see also Quon, 130 S. Ct. at 2627 (“The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government, without regard to whether the government actor is investigating crime or performing another function.” (internal quotation marks omitted)).
The District Court properly found that Plaintiffs’ Fourth
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Amendment arguments are most likely to succeed because the Section 215 illegal government surveillance violates the Fourth Amendment. In reaching this decision, the District Court correctly concluded that the illegal government surveillance is an unreasonable search under the Fourth Amendment.
1. The Section 215 Illegal Government Surveillance of Telephony Metadata Constitutes A Search Under the Fourth Amendment.
The District Court ultimately found that Plaintiffs made more than “a sufficient showing to merit injunctive relief on their Fourth Amendment claim.” SA 5 n.7. In analyzing the first prong to determine the existence of a Fourth Amendment violation, the District Court found that a Fourth Amendment search had occurred, and “[P]laintiffs have a very significant expectation of privacy in an aggregated collection of their telephony metadata covering the last five years, and the NSA’s illegal government surveillance of bulk telephony metadata significantly intrudes on that expectation.” Id. at 58-59.
In Riley, a recent landmark Supreme Court decision that invalidates the Supreme Courts’ previous ruling in Smith v. Maryland, 442 U.S. 735 (1979) in the context of this case, Chief Justice John
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Roberts spoke, and acknowledged the importance and advancement of today’s phone technologies and metadata. See Riley v. California, 134 S. Ct. 2473, 2489 (2014) (explaining that cell phones today could “just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers”). This Court must follow Riley as it is the new law of the land.
Chief Justice John Roberts held that police generally must obtain a warrant before searching a cell phone seized incident to an arrest due to the amount of personal and sensitive information that can now be found on any person’s cellphone. See Riley, 134 S. Ct. at 2489-93. The Supreme Court found that “[M]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life[.]” Id. at 2494. The Supreme Court also recognized that “more substantial privacy interests are at stake when digital data is involved” because “cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos. . . . [which] [have] several interrelated privacy consequences.” Id. at 2478. Chief Justice John Roberts, in delivering the majority opinion, even found that “modern cell phones . . . are now
35

such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Id. at 2484.
The Supreme Court’s modern up-to-date view of today’s cellular phones has surely impacted the extent that the Government Defendants can lawfully intrude upon citizens’ rights. In fact, Riley in the context of this case, eliminates Smith. This is not a pen register, this is metadata; it is every aspect of our lives.
In further discussing the relevance of cellular data when it is unlawfully searched by the Government, the Supreme Court held that “a search of digital information on a cell phone does not further [ ] government interests . . . and implicates substantially greater individual privacy interests than a brief physical search.” Id. at 2478. Due to the highly sensitive data located in our cell phones, the Supreme Court made it clear that a warrant is generally required before a search, even when a cell phone is seized incident to arrest.7 Id. at 2495. Because “[d]igital data stored on a cell phone cannot itself be used as a
7 “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.” Riley, 134 S.Ct. at 2494 (emphasis added).
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weapon” and “can endanger no one,” the Government Defendants do not have a compelling reason to search citizens’ telephony and internet metadata at their discretion. See id. at 2485.
Furthermore, unlike in Riley, the NSA has access to, and did access, entire telephone conversations, which it keeps stored for at least five years in the Government Defendants’ super computers. Although these reasons alone are enough to find that the Government Defendants violated Plaintiffs’ rights, and that they should be prevented from further violating them, there is much more this Court can consider.
The Supreme Court in Smith could not have predicted the extent that cellular technology would advance, nor could it have predicted the extent that data would be searched, the Supreme Court found that today’s technology was nearly inconceivable just a few decades ago. Riley, 134 S.Ct. at 2484 (“Even less sophisticated phones [,such as a flip phone] . . . , which have already faded in popularity since Wurie was arrested in 2007, have been around for less than 15 years. Both phones are based on technology nearly inconceivable just a few decades ago,8
8 “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.
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when Chimel9 and Robinson10 were decided [in 1969 and 1973,
respectively]”). Justice Samuel Alito, who concurred in part and
dissented in part, “agree[d] that we should not mechanically apply the
rule used in the predigital era to the search of a cell phone.” Riley, 134
S.Ct. at 2496. The Supreme Court’s ruling in Riley clearly lays the
foundation for what is to come in the present case—that is, that past
Supreme Court rulings, around the time of Smith, analyzing unlawful
police and government searches, do not apply to the unconceivable
circumstances of today.
Although “[t]he analysis of this threshold issue of the expectation
of privacy must start with the Supreme Court's [ ] opinion in Smith . . .
,” the District Court properly determined that Smith is not necessarily
applicable as the Supreme Court justices in 1979 could not have
Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.
9 In Chimel v. California, 695 U.S. 752, 753-54 (1969), the Police searched just one home. In the present case, the Government Defendants are searching the pockets of over 300 million citizens. The plethora of information found in one’s cell phone is equivalent to the amount of information one can find from searching one’s home. The Government Defendants are thus bursting into the homes of everyone.
10 United States v. Robinson, 414 U.S. 218 (1973).
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envisioned the full extent that, or how, technology would advance.11 In Smith, police were investigating a robbery victim's reports that
she had received threatening and obscene phone calls from someone claiming to be the robber. Id. at 737, 99 S.Ct. 2577. Without obtaining a warrant or court order, police installed a pen register, which revealed that a telephone in Smith's home had been used to call the victim on one occasion. Id. The Supreme Court held that Smith had no reasonable expectation of privacy in the numbers dialed from his phone because he voluntarily transmitted them to his phone company, and because it is generally known that phone companies keep such information in their business records. Id. at 742–44.
The District Court properly disagreed with the Government Defendants’ main argument, that under Smith, no individual has an expectation of privacy, or even a reasonable one, in any and all collected telephony metadata, and thus, the illegal government surveillance of
11 “[T]he almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979.” “The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction.” SA 49.
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bulk telephony metadata is not a search. Govt.'s Opp'n at 45–50. In making this determination, the District Court ruled that the question before the District Court was “not the same question that the Supreme Court confronted in Smith [and,] [t]o say the least, ‘whether the installation and use of a pen register constitutes a ‘search’ within the meaning of the Fourth Amendment,’ . . . —under the circumstances addressed and contemplated in that case—is a far cry from the issue in this case.”
The question in the present case asks, when do present-day circumstances, namely the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies, that have become so thoroughly unlike those considered by the Supreme Court in 1979 that a precedent like Smith would not apply? The District Court simply answered, “now.”12 Consequently, the District Court ruled that the bulk telephony metadata collection and analysis almost certainly does violate a
12 Judge Leon concluded, “I am convinced that the [illegal government surveillance] now before me is so different from a simple pen register that Smith is of little value in assessing whether the [illegal government surveillance] of [b]ulk [t]elephony [m]etadata constitutes a Fourth Amendment search.” SA 47.
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reasonable expectation of privacy. In comparing the circumstances in Smith to the circumstances in
this case, the District Court noted that pen register in Smith was operational for only a matter of days, and with no indication the Government would retain any of the limited phone records once the case was over. See 442 U.S. at 737. A key difference in Smith is that “the short-term, forward-looking (as opposed to historical),13 and highlylimited data collection is [ultimately] what the Supreme Court was assessing.” “The NSA[‘s illegal government surveillance of] telephony metadata [ ], on the other hand, involves the creation and maintenance of a historical database containing [at least] five years ' worth of data.”14 Moreover, the relationship between the police and the phone company in Smith is incomparable to the relationship that has evolved over the last seven years between the Government Defendants and all of the
13 “In his affidavit, Acting Assistant Director of the FBI Robert J. Holley himself noted that “[p]en-register and trap-and-trace (PR/TT) devices provide no historical contact information, only a record of contacts with the target occurring after the devices have been installed.” App. 223.
14 “And I might add, there is the very real prospect that the [illegal government surveillance] will go on for as long as America is combatting terrorism, which realistically could be forever!” SA 47.
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telecom companies.15 In Smith, the Supreme Court considered a one-
time, targeted request for data regarding an individual suspect in a
criminal investigation, whereas the Court here must consider the NSA’s
“daily, all-encompassing, indiscriminate dump of phone metadata that
the NSA now receives as part of its [illegal government surveillance of]
[b]ulk [t]elephony [m]etadata [ ].” SA 48.
The District Court further explained why Smith does not apply in
the present case by pointing out that “not only is the Government's
ability to collect, store, and analyze phone data greater now than it was
in 1979, but the nature and quantity of the information contained in
people's telephony metadata is much greater, as well.” SA 50. Cell
phones did not exist in 1979; today, they are used for many purposes
other than calling, and thus people now have an entirely different
15 Compare Smith, 442 U.S. at 737 (“[T]he telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner's home.”), with Govt.'s Opp'n at 8–9 (“Under this [illegal government surveillance], . . . certain telecommunications service providers [ ] produce to the NSA on a daily basis electronic copies of call detail records, or telephony metadata. . . . The FISC first authorized the [illegal government surveillance] in May 2006, and since then has renewed the [illegal government surveillance] thirty-five times . . . .” (emphases added; citation and internal quotation marks omitted)).
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relationship with phones than they did in 1979.16 See Klayman, 957 F.
Supp. 2d at 36. Metadata today, the District Court stated, “reflects a
wealth of detail about . . . familial, political, professional, religious, and
sexual associations,” and “reveal[s] an entire mosaic—a vibrant and
constantly updating picture of the person’s life.” Id. The District Court
correctly pointed out that cell phones today are used as far more than
just calling devices; they are also used, for example, as “maps and music
players,” or as a “lighter[] that people hold up at rock concerts.” Id. at
34.
“In sum, [the District Court ruled that] the Smith pen register and
the ongoing NSA [illegal government surveillance of] [b]ulk [t]elephony
[m]etadata [ ] have so many significant distinctions between them that
[the District Court] cannot possibly navigate these uncharted Fourth
Amendment waters using as my North Star a case that predates the
rise of cell phones.” SA 55. Trends have resulted in a greater expectation
16 “According to the 1979 U.S. Census, in that year, 71,958,000 homes had telephones available, while 6,614,000 did not. U.S. Dep't Of Commerce & U.S. Dep't Of Hous. & Urban Dev., Annual Housing Survey: 1979, at 4 (1981). In December 2012, there were a whopping 326,475,248 mobile subscriber connections in the United States, of which approximately 304 million were for phones. CTIA—The Wireless Ass'n (“CTIA”), Wireless Industry Survey Results—December 1985 to December 2012, at 2, 6 (2013) (“CTIA Survey Results ”).
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of privacy and a recognition that society views that expectation as reasonable. In analyzing whether Plaintiffs have a reasonable expectation of privacy that is violated when the Government Defendants collected and searched their telephony metadata,17 the District Court determined that it was significantly likely it would answer in Plaintiffs’ favor. The District Court found that the “[P]rogram infringes on ‘[the] degree of privacy’ that the Founders enshrined in the Fourth Amendment,” SA 64, and subsequently “grant[ed] Plaintiffs requests for a[ ] [preliminary] injunction[.]” Id.
The District Court determined it would ultimately have to answer “whether people have a reasonable expectation of privacy that is violated when the Government, without any basis whatsoever to suspect them of any wrongdoing, collects and stores for five years their telephony metadata for purposes of subjecting it to high-tech querying and analysis without any case-by-case judicial approval.” SA 56. The District Court stated it was significantly likely that it would answer that question in Plaintiffs' favor. Id.
17 “The more difficult question, however, is whether their expectation of privacy is one that society is prepared to recognize as objectively reasonable and justifiable.” SA 55.
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As such, a Fourth Amendment search has occurred and the ruling in Smith does not foreclose Plaintiffs’ arguments. In any event, the Supreme Court’s recent landmark holding in Riley renders Smith inoperative and obsolete, particularly in the context of this case.
2. The Section 215 Illegal Government Surveillance Of Telephony Metadata Is An Unreasonable Search Under the Fourth Amendment.
The Government Defendants’ collection of bulk telephony metadata from the business records of telecommunications companies constitutes a Fourth Amendment search that is constitutionally impermissible.
After finding that a Fourth Amendment searched occurred, a district court must then must “examin[e] the totality of the circumstances to determine whether [the] search is reasonable within the meaning of the Fourth Amendment.” Samson v. California, 547 U.S. 843, 848 (2006). “ ‘[A]s a general matter, warrantless searches are per se unreasonable under the Fourth Amendment.’ ” Nat'l Fed'n of Fed. Emps.–IAM v. Vilsack, 681 F.3d 483, 488–89 (D.C.Cir.2012) (quoting Quon, 130 S.Ct. at 2630); see also Chandler v. Miller, 520 U.S. 305, 313
45

(1997) (“To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.”).
“Even where the government claims ‘special needs,’” as it does in this case, “a warrantless search is generally unreasonable unless based on ‘some quantum of individualized suspicion.’” SA 57 (quoting Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 624 (1989)). A suspicionless search may still be reasonable “‘where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion.’” SA 57 (quoting Skinner, 489 U.S. at 624).
A district court has the task of “ ‘balanc[ing] the [plaintiffs'] privacy expectations against the government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.’” SA 57 (quoting Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665–66 (1989)). This is a “ ‘context-specific inquiry’ ” that involves “ ‘examining closely the competing private and public interests advanced by the parties.’ ” SA 57 (quoting Chandler, 520 U.S. at 314)). The factors the District Court
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must consider include: (1) “the nature of the privacy interest allegedly
compromised” by the search, (2) “the character of the intrusion
imposed” by the government, and (3) “the nature and immediacy of the
government's concerns and the efficacy of the [search] in meeting them.”
Bd. of Educ. v. Earls, 536 U.S. 822, 830–34 (2002). Whether the illegal
government surveillance violates the Fourth Amendment will therefore
turn on “the nature and immediacy of the government's concerns and
the efficacy of the [search] in meeting them.” Earls, 536 U.S. at 834.
The District Court explained that “special needs” cases “form
something of a patchwork quilt.”18 SA 58. “To [the District Court’s]
knowledge, however, no court has ever recognized a special need
sufficient to justify continuous, daily searches of virtually every
American citizen without any particularized suspicion.”
18 “[S]chools and government employers are permitted under certain circumstances to test students and employees for drugs and alcohol, see Earls, 536 U.S. 822; Von Raab, 489 U.S. 656; Skinner, 489 U.S. 602, and officers may search probationers and parolees to ensure compliance with the rules of supervision, see Griffin v. Wisconsin, 483 U.S. 868 (1987). The doctrine has also been applied in cases involving efforts to prevent acts of terrorism in crowded transportation centers. See, e.g., Cassidy v. Chertoff, 471 F.3d 67 (2d Cir. 2006) (upholding searches of carry-on bags and automobiles that passengers bring on ferries); MacWade v. Kelly, 460 F.3d 260 (2d Cir. 2006) (upholding searches of bags in New York City subway system).” SA 58.
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Although it is undisputed that preventing terrorist attacks is of
the highest order of magnitude, the District Court correctly pointed out,
however, that the Government Defendant’s interest is more nuanced
because it “is not merely to investigate potential terrorists, but rather to
do so faster than other investigative methods might allow,” at the
expensive of citizens’ and Plaintiffs’ privacy. SA 59-60. In fact, the
affidavits in support of the Government Defendants’ brief to the District
Court primarily focused on speed.19 The Government Defendants could
not cite or describe a single instance “in which analysis of the NSA's
bulk metadata collection actually stopped an imminent attack, or
otherwise aided the Government [Defendants] in achieving any
objective that was time-sensitive in nature.”20 SA 61. The Government
Defendants argument that the Fourth Amendment plainly does not
19 “For example, according to SID Director Shea, the primary advantage of the bulk metadata collection is that “it enables the Government to quickly analyze past connections and chains of communication,” and “increases the NSA's ability to rapidly detect persons affiliated with the identified foreign terrorist organizations.” Shea Decl. ¶ 46 (emphases added).
20 “In fact, none of the three ‘recent episodes’ cited by the Government that supposedly ‘illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack’ involved any apparent urgency. See Holley Decl. ¶¶ 24– 26.
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require the government to demonstrate that special-needs searches— prevented such specific harms, particularly where, as here, plaintiffs’ cognizable privacy interests are minimal is unfounded because, as the District Court found, Plaintiffs’ and citizens’ privacy interests are not minimal—such an argument that privacy interests here are minimal disregards the importance of Fourth Amendment protection and the preventing of government tyranny.
Given the limited record and the lack of evidence that a terrorist attack has ever been prevented “because searching the NSA database was faster than other investigative tactics,” the District Court had “serious doubts about the efficacy of the illegal government surveillance as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.” Consequently, the District Court found that Plaintiffs had a substantial likelihood of showing that their privacy interests outweighed the Government Defendants’ interest in collecting and analyzing bulk telephony metadata and therefore the NSA's illegal government surveillance collection of bulk metadata is indeed an unreasonable search under the Fourth Amendment.
The Supreme Court’s decision in Riley confirms the fact that the
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Government Defendants’ search of Plaintiffs’ telephony metadata is unreasonable. The fact that Riley protects arrested persons’ and criminals’ privacy is significant because the Government Defendants here seek to eliminate privacy protections to innocent persons and noncriminals whom have never been arrested. If, due to the amount of private and sensitive information available on a mobile phone, a police officer is required to obtain a warrant to search an arrestee’s mobile phone, then, at the very least, a warrant is required to search innocent citizens’ mobile phones and telephony metadata.
Accordingly, for the above stated reasons, the Government Defendants’ search of Plaintiffs’ telephony metadata is unreasonable under the Fourth Amendment.
C. The District Court Did Not Abuse Its Discretion In Properly Balancing The Equities And Assessing The Public Interest.
Plaintiffs have demonstrated a likelihood of success on the merits and thus the District Court did not abuse its discretion in correctly issuing a preliminary injunction.
When ruling on a motion for preliminary injunction, a district court must “‘balance the [plaintiffs’] privacy expectations against the
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government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.’” Id. (quoting Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665–66 (1989)). In a “‘context-specific inquiry,’” there involves “‘examining closely the competing private and public interests advanced by the parties.’” SA 57 (quoting Chandler, 520 U.S. at 314). The factors the district court must consider include: (1) “the nature of the privacy interest allegedly compromised” by the search, (2) “the character of the intrusion imposed” by the government, and (3) “the nature and immediacy of the government's concerns and the efficacy of the [search] in meeting them.” Bd. of Educ. v. Earls, 536 U.S. 822, 830–34 (2002).
A district court does not abuse its discretion in awarding preliminary injunctive relief when balancing the equities tilts toward granting a preliminary injunction in addition to determining that plaintiffs have shown that they are likely to succeed on the merits. Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011). “But while the standard to be applied by the district court in deciding whether a plaintiff is entitled to a preliminary injunction is stringent, the standard of appellate review is simply whether the issuance of the
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injunction, in the light of the applicable standard, constituted an abuse of discretion.” Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32 (1975) (citing Brown v. Chote, 411 U.S. 452, 457 (1973)).
As the U.S. Court of Appeals for the Sixth Circuit has held, “[t]he government has no legitimate interest, however, in conducting surveillance that violates both FISA and the Constitution.” Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456, 495 (6th Cir. 1999) (“[T]he public is certainly interested in preventing the enforcement of unconstitutional statutes and rules; therefore, no harm to the public will result from the issuance of the injunction here.”); see also ACLU v. Ashcroft, 322 F.3d 240, 247 (3d Cir. 2003).
“‘[I]t is always in the public interest to prevent the violation of a party's constitutional rights.’” Am. Freedom Def. Initiative v. Wash. Metro. Area Transit Auth., 898 F.Supp.2d 73, 84 (D.D.C.2012) (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm'n, 23 F.3d 1071, 1079 (6th Cir.1994)); see also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir.2013); Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.2012) (same); Nat'l Fed'n of Fed. Emps. v. Carlucci, 680 F.Supp. 416 (D.D.C.1988) (“[T]he public interest lies in enjoining
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unconstitutional searches.”).” The District Court determined the “interest looms large in this case, given the significant privacy interests at stake and the unprecedented scope of the NSA's collection and querying efforts, which likely violate the Fourth Amendment[, and] [t]hus, the public interest weighs heavily in favor of granting an injunction.”
In arguing that the public's interest in combating terrorism is of paramount importance, which Plaintiffs and the District Court accept without question, the Government Defendants offer no real explanation as to how granting relief to Plaintiffs would be detrimental to that interest. “Instead, the Government says that it will be burdensome to comply with any order that requires the NSA to remove plaintiffs from its database.” However, the public has no interest in “protecting” the Government from the burdens of complying with the Constitution. Govt.'s Opp'n at 65 (citing Shea Decl ¶ 65). For the reasons already explained, Plaintiffs and the District Court are not convinced “that the NSA's database has ever truly served the purpose of rapidly identifying terrorists in time-sensitive investigations, and so [the District Court] is certainly not convinced that the removal of two individuals from the
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database will ‘degrade’ the illegal government surveillance in any meaningful sense.” The District Court in no way abused its discretion as it is so alleged by the Government Defendants. II. THE DISTRICT COURT ERRED IN DENYING IN PART
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION IN KLAYMAN II. A. Plaintiffs in Klayman II Are Subscribers Of Verizon. The District Court already found in Klayman I that Plaintiffs are subscribers of Verizon. This finding does not change the fact that Plaintiffs are still subscribers of Verizon for purposes of standing in Klayman II. Klayman I and Klayman II have been consolidated, which would in effect show that Plaintiffs have standing in both District Court cases. The District Court erred, however, in deferring on ruling on the remaining motions and denying Mrs. Strange injunctive relief when Mrs. Strange has been a subscriber of Verizon at all times relevant to this case. The District Court erred in determining that Plaintiffs did not state that Mrs. Strange was a Verizon Subscriber in Klayman II. However, in the Klayman II complaint, ¶ 18, Plaintiffs state that,
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“Plaintiffs Charles and Mary Ann Strange are consumers, subscribers, and users of Verizon . . . .” See Second Amended Complaint [Doc. 55-1].
The District Court found that Mr. Strange had standing to assert his claims along with Plaintiffs against the Government Defendants in Klayman I. Naturally, Mr. Strange’s wife, Mrs. Strange, who lives in the same household as Mr. Strange and shares a cellular phone service with him, is also a subscriber of Verizon. Accordingly, the District Court erred in denying injunctive relief to Mrs. Strange.
B. The Government Defendants Have Not Discontinued The Section 215 Illegal Government Surveillance.
The Government Defendants contend that the illegal government surveillance, authorized under Section 215 of the FISA, used to access internet metadata and other data “was discontinued in 2011,” and thus, “Plaintiffs lack standing to pursue any prospective injunctive relief.” See also Govt. Defs.' Opp'n to Pls.' Mot. for Prelim. Inj. (“Govt.'s Opp'n”) [Dkt. # 25], at 15–16, 44–45; Ex. J to Decl. of James J. Gilligan (“Gilligan Decl.”) [Dkt. # 25–11] (Letter from James R. Clapper to the Sen. Ron Wyden (July 25, 2013)). Although the District Court has found it had no need to address Plaintiffs’ claims requesting preliminary injunctive relief regarding any alleged internet data surveillance
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activity because “the Government represented that any bulk collection of internet metadata pursuant to Section 215 (50 U.S.C. § 1861) was discontinued in 2011, the Government Defendants have, on a number of occasions, misrepresented their conduct before Congress and other courts, and therefore cannot be believed. The Government Defendants have offered no real proof that they discontinued the illegal government surveillance. Regardless of the Government Defendants’ unfounded assertion that they discontinued the illegal government surveillance, Plaintiffs are entitled to both monetary and injunctive relief for past illegal and unconstitutional conduct.
The Government Defendants cannot be believed, as evidenced by their repetitive deceptive conduct, and thus, their assertions that they ceased accessing Internet metadata and other data through Section 215 absent discovery should not be accepted. The Government Defendants have been caught, on a number of occasions committing perjury—that is, lying to the judiciary, Congress, and the American people. The Government Defendants are dishonest: they make false representations that they have ceased accessing Internet metadata and other data through Section 215, without providing any credible or verifiable
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evidence, and then they seek to dismiss Plaintiffs’ claims for lack of standing so that they can avoid discovery, which would ultimately confirm further the Government Defendants’ unlawful secret schemes to the public. Under this subterfuge plan, the Government Defendants intend for no party to successfully challenge the Government’s violations of the U.S. Constitution.
As Plaintiffs have previously pointed out, the Government Defendants acknowledge, as they must, that they have failed to comply with the minimization procedures set forth in certain orders. SA 21. For instance, in 2009, the Government Defendants reported to the FISC that the NSA had improperly used an “alert list” of identifiers to search the bulk telephony metadata, which was composed of identifiers that had not been approved under the RAS standard. SA 21. Judge Reggie Walton of the FISC, who reviewed the Government Defendants’ reports on their noncompliance, concluded that the NSA had engaged in “systematic noncompliance” with FISC-ordered minimization procedures over the proceeding years, since the inception of the Bulk Telephony Metadata illegal government surveillance, and had also repeatedly made misrepresentations and inaccurate statements about
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the illegal government surveillance to the FISC judges. Mem. Op at 21. Judge Reggie Walton concluded that he had no confidence that the Government was doing its utmost to comply with the court’s orders, and ordered the NSA to seek FISC approval on a case-by-case basis before conducting any further queries of the bulk telephony metadata collected pursuant to Section 1861 orders. Mem. Op at 21.
The Government Defendants have also had further compliance problems relating to its collection illegal government surveillance in subsequent years. SA 21. In 2011, the Presiding Judge of the FISC, Judge John Bates, found that the Government had misrepresented the scope of its targeting of certain internet communications pursuant to 50 U.S.C § 1881a. SA 21. Judge Bates wrote “the Court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection [illegal government surveillance].” SA 21-22. In fact, since January 2009, the FISC's authorizations of the illegal government surveillance has “been premised on a flawed depiction of how the NSA uses BR metadata.” SA
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22 n.23. “This misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government's submissions, and despite a government-devised and Court-mandated oversight regime.” SA 22 n.23. The minimization procedures proposed by the government in each successive application and approved and adopted as binding by the orders of the FISC have been so frequently and systemically violated that it can fairly be said that this critical element of the overall BR regime has never functioned effectively.” SA 22 n.23.
The Government Defendants’ plethora of misrepresentations does not stop here. Senator Ron Wyden asked James Clapper (“Clapper”), Director of National Intelligence, whether the NSA collected “any type of data at all on millions or hundreds of millions of Americans.” Brian Fung, Darrell Issa: James Clapper lied to Congress about NSA and should be fired, Wa. Post (Jan. 27 2014), available at http://www.washingtonpost.com/blogs/the-switch/wp/2014/01/27/darrellissa-james-clapper-lied-to-congress-about-nsa-and-should-be-fired/. Clapper infamously replied, “No, sir … not wittingly.” Id. Edward Snowden’s revelations and leaked NSA documents forced Clapper to
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admit that he knowingly lied to Congress under oath. RT, Obama on Clapper’s spy lie: ‘He should have been more careful’ (Jan. 31 2014), available at http://rt.com/usa/obama-dni-clapper-lie-485/. He later apologized to committee chairperson Senator Dianne Feinstein, admitting that his response “was clearly erroneous—for which [he] apologize[d].” Clapper Letter to Sen. Feinstein, available at http://www.dni.gov/files/documents/2013-0621%20DNI%20Ltr%20to%20Sen.%20Feinstein.pdf.
Senator Rand Paul told CNN “[t]hat Clapper is lying to Congress is probably more injurious to our intelligent capabilities than anything Snowden did.” Jose DelReal, Rand Paul slams James Clapper over NSA ‘lying,’ Politico (Dec. 18 2013), available at http://www.politico.com/story/2013/12/rand-paul-james-clappernational-security-agency-101306.html. Senator Paul added that, just as the Government Defendants’ have continually demonstrated, “Clapper has damaged the credibility of the entire intelligence apparatus and [he is] not sure what to believe anymore when they come to Congress.”21 Id.
21 Relevant to the points made herein, Senator Rand Paul also stated to CNN that “[i]f the intelligence community says we’re not spying on Americans and they are, and then they say we’re not
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“It is now clear to the public that the list of ongoing intrusive surveillance practices by the NSA includes not only bulk collection of Americans’ phone records, but also warrantless searches of the content of Americans’ personal communications.” Ron Wyden, Senator for Oregon, Wyden, Udall on Revelations that Intelligence Agencies Have Exploited Foreign Intelligence Surveillance Act ‘Loophole,’ Wyden (April 1, 2014), available at http://www.wyden.senate.gov/news/pressreleases/wyden-udall-on-revelations-that-intelligence-agencies-haveexploited-foreign-intelligence-surveillance-act-loophole.
C. An Alleged Voluntary Discontinuation Of The Government Defendants’ Illegal Government Surveillance Does Not Render Plaintiffs’ Claims Moot.
Even if the Government Defendants discontinued their illegal government surveillance, which they most likely did not, the Government Defendants could, and most likely will, resume accessing Internet metadata and other data through Section 215 or some other vehicle, the Government Defendants have hung their hat on the slender stand of mootness, claiming that their decision to voluntarily cease the offensive conduct in 2011 is no longer capable of adjudication in this collecting any data, it’s hard to have confidence in them.” Politico, supra.
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Court. This Court must reject Government Defendants’ argument. A defendant that simply ceases illegal conduct cannot avoid the consequences for it’s past, present or future conduct. This is axiomatic and black letter law.
The Government Defendants’ conceded that “at one time [the Government] acquired bulk Internet metadata . . . pursuant to FISA’s pen/trap provision.” Govt.’s Opp’n. Motion to Dismiss in Klayman I [Docket No. 74] at 15. “The data collected included certain routing, addressing, and signaling information such as ‘to’ and ‘from’ lines in an e-mail . . . and the date and time an e-mail [was] sent,” but not the ‘content of [an] e-mail [or] the ‘subject’ line. NSA collected large amounts of this transactional information from certain telecommunications service providers and analyzed it to obtain foreign intelligence information.” Id. According to Government Defendants, “This [illegal government surveillance] of bulk Internet metadata [ ] was terminated in 2011, for operational and resource reasons.” Id. at 16.
The Supreme Court has stated “[i]t is well settled that “‘a defendant’s voluntary cessation of a challenged practice does not
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deprive a federal court of its power to determine the legality of the practice” for “if it did, the courts would be compelled to leave ‘[t]he defendant . . . free to return to his old ways.’” Friends of the Earth v. Laidlaw Envt’l Services, Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)); see United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953) (holding that “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case).
When the basis of mootness is voluntary cessation, “[a] case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Laidlaw, 528 U.S. at 191 (emphasis added). Precisely because the voluntary cessation of allegedly wrongful activity can be undone by an equally voluntary decision to resume the conduct, courts have consistently held that “[t]he heavy burden of persua[ding] the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968); see also Laidlaw, 528 U.S. at 189.
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Here, it is more than a stretch to claim that government officials who did not follow the law before will suddenly follow the law now – especially when they refuse to acknowledge that their previous course of conduct was wrongful and are “certified” perjurers before Congress and the court.
In cases involving cessation of challenged conduct by Government officials, courts generally require that the cessation of the challenged conduct be accompanied by circumstances indicating the change is a genuine act of self-correction in order to find that the issue does not require adjudication. See Magnuson v. City of Hickory Hills, 933 F.2d 562, 565 (7th Cir. 1991); see also 13A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3533.7 (2d ed. 2004) (noting that while “[c]ourts are more apt to trust public officials than private defendants to desist from future violations . . . the tendency to trust public officials is not complete . . . nor is it invoked automatically.”) Moreover, in Armster, the hold held that where the Justice Department did not concede that challenged conduct was illegal, bare assertion that it would not recur was insufficient to establish mootness because “[i]t has been long recognized that the likelihood of recurrence of challenged
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activity is more substantial when the cessation is not based on a recognition of the initial illegality of that conduct.” Armster v. United States District Court for the Central District of California, 806 F.2d 1347, 1359 (9th Cir. 1986); (“It has been long recognized that the likelihood of recurrence of challenged activity is more substantial when the cessation is not based on a recognition of the initial illegality of that conduct.”). Id.
Thus, in light of well-established principles, the Government Defendants' argument that collection under PRISM “was discontinued in 2011”, a mere three years ago, holds no weight. Government Defendants’ can easily return to their old practice of collecting metadata – if Government Defendants’ ceased the activity at all – through the PRISM illegal government surveillance and other similar illegal government surveillance.
Also, the fact that Plaintiffs have requested monetary damages in addition to injunctive relief also renders Plaintiffs’ claims regarding the collection of metadata not moot. Plaintiffs are entitled to monetary damages for the harm caused during the period that the Government Defendants admit that they were collecting citizen’s Internet metadata and other data through their illegal and unconstitutional surveillance.
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Discovery is, at a minimum, necessary to determine the extent and amount of monetary damages that Plaintiffs are entitled in regards to the time period that the Government Defendants violated Plaintiffs’ Constitutional rights.
The totality of the record shows that the Government Defendants have not discontinued the Section 215 illegal government surveillance, but even if they have, this does not moot out Plaintiffs’ claims, particularly since Defendants concede that the illegal and unconstitutional conduct continued to occur within the applicable statute of limitations which is three years.
D. Plaintiffs Have Provided Sufficient Evidence To Show That The NSA Has Targeted Plaintiffs’ Internet Data Content.
The District Court found that Plaintiffs made a sufficient showing that the Government Defendants targeted Plaintiffs’ telephony metadata. For the very same reasons, Plaintiffs have sufficient evidence to show that the Government Defendants also collected their, and all Americans’, internet metadata. In fact, the reality is that the same intrusion has occurred with regard to internet metadata as it has been shown with telephony metadata. Clapper’s own responses and
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revelations shows that the Government Defendants are still using both telephony and internet metadata of Plaintiffs and hundred of millions of American citizens.
For the aforementioned reasons, the District erred in denying preliminary injunctive relief to Plaintiffs in Klayman II. III. THE COURT SHOULD REACH A DECISION ON PLAINTIFFS’
FIRST AND FIFTH AMENDMENT CLAIMS. Plaintiffs’ First and Fifth Amendment claims, which have not been ruled upon, are just as important as Plaintiffs’ Fourth Amendment claim, and thus, this Court should reach a decision regarding these claims. As the District Court ultimately found that plaintiffs have made a sufficient showing to merit injunctive relief on their Fourth Amendment claim, the District Court decided to not reach their other constitutional claims under the First and Fifth Amendments. The Supreme Court has frequently emphasized the importance of preserving the First Amendment rights of advocacy groups, recognizing that the government’s surveillance and investigatory activities infringe on associational rights protected by the amendment. In Gibson v. Florida Legislative Investigation Committee, the court ruled, “[t]he First and Fourteenth Amendment rights of free speech and free association
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are fundamental and highly prized and ‘need breathing space to
survive.” 372 U.S. 539, 892 (1963) (citing NAACP. v. Button, 371 U.S.
415, 433 (1963)). In NAACP v. Alabama ex rel. Patterson, 357 U.S. 449
(1958). the Supreme Court invalidated an Alabama order that would
have required the NAACP to disclose its membership list. The Supreme
Court wrote, in explaining why the protection of privacy is of particular
Constitutional concern for advocacy organizations:
“[I]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute an effective restraint on freedom of association as the forms of governmental actions….were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one’s association…Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” Alabama, 357 U.S. at 462.
As discussed above, the Government Defendants’ overly broad and
sweeping surveillance raises precisely the same harm. In light of his
public advocacy in matters of public interests and concern, Plaintiff
Klayman, an attorney, regularly communicates with individuals who
wish to come forward with evidence of government wrongdoing, such as
depriving them of their civil rights. Likewise, Plaintiff Klayman also
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regularly engages in telephone calls with potential clients and clients he is already representing, wherein he discusses legal matters and advises the clients, whistleblowers, and others regarding legal strategies and techniques. Similarly, Plaintiffs Charles and Mary Ann Strange, who are activists in advocating change in U.S. military policies and practices, routinely communicate, via phone to clients, potential clients, supporters, and others, regarding the advocacy plans, tactics, strategies and goals. Given the nature of their advocacy, and the inherent effects on government policy and acts, Plaintiffs’ communication records contain confidential and legally-privileged discussions that must not be collected, monitored, heard, or recorded by the government.
Plaintiffs do not simply fear the possible surveillance of the Government, Plaintiffs are aware of actual and proven surveillance— much more than enough to confer standing. See SA 38 (“[T]he NSA . . . collected metadata.”). This Court has already found that the Government Defendants queried and reviewed Plaintiffs’ metadata. SA 38-39 (“I find that Plaintiffs [ ] have standing to challenge the NSA’s querying procedures . . . .Plaintiff’s metadata—indeed everyone’s metadata—is analyzed, manually or automatically . . . .”).
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Plaintiffs enjoy a liberty interest in their personal security and in being free from the Government Defendants’ use of unnecessary and excessive force or intrusion against his person. Plaintiffs also enjoy a liberty of not being deprived of life without due process of law.
The ACLU also addressed the Governments’ First amendment violations by arguing that the “district court erred in holding that the [illegal government surveillance] does not cause any cognizable injury to Plaintiffs’ First Amendment rights.” “Safeguards required by the Fourth Amendment may in some contexts satisfy the First Amendment as well—for example, a criminal search warrant may satisfy both the First and Fourth Amendments if it is carefully drawn and supported by probable cause.” See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547, 565 (1978); United States v. Ramsey, 431 U.S. 606, 623–24 (1977).
The chilling effect on Plaintiffs’ contacts also effects a substantial impairment of Plaintiffs’ First Amendment rights. The ACLU cited to Shelton v. Tucker, 364 U.S. 479 (1960), an instructive Supreme Court case. “In that case, the Court found that First Amendment rights were substantially burdened by an Arkansas law requiring teachers to ‘disclose every single organization with which [they had] been
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associated over a five-year period.’ Id. at 487–88.” In Shelton, the Supreme Court “adopted a commonsense approach and recognized that a chilling effect was inevitable if teachers who served at the absolute will of school boards had to disclose to the government all organizations to which they belonged.” Local 1814, Int’l Longshoremen’s Ass’n, AFL– CIO v. Waterfront Comm’n of N.Y. Harbor, 667 F.2d 267, 272 (2d Cir. 1981). The chilling effect is equally inevitable in ACLU v. Clapper, as well as in the present case. Plaintiffs suffer a further injury because of the illegal government surveillance’s chilling effect on their contacts and sources. Due to the violations of Plaintiffs’ First and Fifth Amendment rights, this Court should reach a decision pertaining to these Constitutional claims.
CONCLUSION In sum, this Court must respectfully affirm the District Court’s Order of December 16, 2013, preliminary enjoining the Government Defendants from continuing to illegally and unconstitutionally conduct surveillance on Plaintiffs, and hundreds of millions of Americans. Plaintiffs have never claimed that the Government Defendants are not entitled to conduct legitimate surveillance of communications of
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terrorists and criminals where there is a showing of probable cause. However, as Chief Justice John Roberts of the Supreme Court has confirmed, warrantless searches of ordinary citizens are not only Orwellian but are also contrary to the principals on which this country was founded.
Indeed, as Chief Justice Roberts also ruled, this violation of privacy of Americans ignited the American Revolution for which Americans laid down their lives to found a new nation free from government tyranny. Accordingly, this Court should not only affirm the District Court’s Order of December 16, 2013 by ordering a preliminary injunction in Klayman I, as well as ordering a preliminary injunction Klayman II, but should also remand to the District Court to remove the stay of its preliminary injunction, because even one more day of this outrageous and unconstitutional government abuse cannot be countenance any longer. The Founding Fathers intended that the judiciary serve as a check to unbridled legal and unconstitutional behavior.
Plaintiffs do not dispute that, under the law, the NSA may conduct surveillance on persons where there is reasonable suspicion
72

that they are in communication with terrorists or committing crimes. What the NSA has been doing unlawfully is accessing telephony metadata of not only Plaintiffs, but hundreds of millions of Americans, that clearly exceeds Constitutional protections. Plaintiffs want to preserve the status quo, which will ultimately not harm anyone. Plaintiffs and the American people thus look to you for their salvation.
Plaintiffs hereby respectfully request oral argument at the earliest practicable date.
Respectfully submitted, /s/ Larry Klayman LARRY KLAYMAN, ESQ. Attorney at Law D.C. Bar No. 334581 2020 Pennsylvania Ave. NW, Suite 345 Washington, DC 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com
73

CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(A)
I hereby certify that that this brief complies with the requirements of Federal Rule of Appellate Procedure 32(a)(5) and (6) because it has been prepared in 14-point Century Schoolbook, a proportionally spaced font.
I further certify that this brief complies with the type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 13,977 words excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii), according to the count of Microsoft Word.
/s/ Larry Klayman LARRY KLAYMAN, ESQ.
74

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 13th day of August, 2014, I filed a true and correct copy of foregoing brief with the Clerk of the United States Court of Appeals for the District of Columbia Circuit. All participants in the case are registered CM/ECF users and will be served by the appellate CM/ECF system. I further certify that I will cause eight (8) paper copies of this brief to be filed with the Court.
Respectfully submitted, /s/ Larry Klayman LARRY KLAYMAN, ESQ.
Attorney at Law D.C. Bar No. 334581 2020 Pennsylvania Ave. NW, Suite 345 Washington, DC 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com
75

 
 Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 1 of 27 1
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LARRY E. KLAYMAN, ET AL.

:

:

Plaintiffs,

:

:

:

v.

:

:

BARACK HUSSEIN OBAMA, ET AL.

:

:

Defendants.

:

................

Docket Nos. CA13-851 CA13-881 (RJL)
February 3, 2014
2:30 p.m.

TRANSCRIPT OF STATUS CONFERENCE BEFORE THE HONORABLE RICHARD J. LEON
UNITED STATES DISTRICT JUDGE

APPEARANCES: For the Plaintiff Pro Se: For the Defendants:
For the Defendant Verizon Communications:

LARRY E. KLAYMAN Law Office of Larry E. Klayman 2020 Pennsylvania Avenue, NW Washington, DC 20006
JAMES J. GILLIGAN RODNEY PATTON MARCIA BERMAN BRYAN DEARINGER U.S. Department of Justice 20 Massachusetts Avenue, NW Washington, DC 20001
RANDOLPH D. MOSS Wilmer Cutler Pickering Hale &
Dorr, LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 2 of 27 2

For the Defendant National Security Agency:

JAMES R. WHITMAN U.S. Department of Justice PO Box 7146 Washington, DC 20044

Court Reporter:

PATTY ARTRIP GELS, RMR Official Court Reporter Room 4700-A, U.S. Courthouse Washington, D.C. 20001 (202) 962-0200

Proceedings reported by machine shorthand, transcript produced by computer-aided transcription.

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 3 of 27 3

1

PROCEEDINGS

2

COURTROOM DEPUTY: Your Honor, we have Civil Action

3

13-851 and Civil Action 13-881 Larry Klayman et al. versus

4 Barack Hussein Obama, et al. I would ask that counsel please

5

approach the lectern and identify yourself and those at your

6

respective tables.

7

MR. KLAYMAN: Larry Klayman for Plaintiffs, your Honor.

8

THE COURT: Welcome back.

9

MR. KLAYMAN: Good afternoon.

10

MS. BERMAN: Good afternoon, Marcia Berman for the

11

Government Defendants.

12

THE COURT: Welcome back.

13

MR. MOSS: Good afternoon, your Honor, Randolph Moss on

14

behalf of the Verizon Defendants.

15

THE COURT: Welcome back. Well, I had set this hearing

16

for argument on the stipulation of dismissal without prejudice

17

and then, of course, I no sooner than did that but the parties

18

entered into a Notice of Voluntary Dismissal. So that really

19

takes the issue off the table.

20

I thought since the stipulation of this -- excuse me --

21

since the Notice of Voluntary Dismissal was without prejudice,

22

then I should seriously consider entertaining the existing

23

Motions at the time to determine whether or not the Motions To

24

Dismiss actually applied or not under the circumstances; but

25

once the parties entered into a stipulation of dismissal on

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 4 of 27 4

1

January 31st under Rule 41, the case is off the table.

2

So there really isn't anything to have an oral argument

3

on in that regard. That issue is now gone and no matter how

4

clear or unclear the law may be with regard to a company's

5

response to a Court Order, no matter how clear or unclear the

6

law may be as to any lack of responsibility they might have as a

7

result of that, I am not in a position any longer to deal with

8

that issue. So that issue is off the table, and I think really

9

what that leaves at this point, and I will wait to see what the

10

parties have to say as to what else they think may still be out

11

there, since the case is on appeal, essentially the ongoing

12

issue of the Government's answering the complaints in this case,

13

they have not answered the complaints in the case.

14

And I have not granted their stay and so they are in a

15

position where they have not complied with the rules without the

16

Court's permission for a stay.

17

So essentially they have put themselves in a position

18

where they could be in default, and I don't know what the

19

Government has got up its sleeve or what it has got planned

20

here, but I have not permitted them not to answer these

21

complaints and I am not getting any answers.

22

So let's hear what the Government has got to say.

23

MS. BERMAN: Your Honor, the Government filed a partial

24

Motion To Dismiss in response to the complaints on the day that

25

the response to the complaints were due and we -- in that

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 5 of 27 5

1

partial Motion To Dismiss we sought to dismiss the APA claim,

2

the FCA claim and the tort claims as well as any claims having

3

to do with the Section 702 content collection, prism claims and

4

internet metadata claims.

5

And so we did not answer the complaint because we filed

6

that Motion To Dismiss instead. And Plaintiffs have now

7 responded to that Motion; and in their opposition, which was

8

just filed I believe on Friday, they have withdrawn their APA

9

and FCA claims. They have acknowledged that their tort claims

10

cannot go forward at this time because they have not exhausted

11

their administrative remedies and they have filed -- they have

12

filed a Motion For Leave To Amend the Complaint in Klayman Two

13

to add allegations supposedly going to the Section 702 and

14

internet metadata claims.

15

We think those do not cure the standing problems there,

16

and I am prepared to explain why; but we do have a reply brief

17

due next Monday where we will lay all that out.

18

THE COURT: So when are you going to answer the

19

complaint?

20

MS. BERMAN: Your Honor, we believe that filing the

21

partial Motion To Dismiss tolls the time for answering on the

22

claims which we have not moved to dismiss because otherwise you

23

would have -- you could have duplicative pleadings and all sorts

24

of confusion, and we believe there is case law supporting that.

25

THE COURT: So until I rule on that Motion, you are not

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 6 of 27 6

1

going to file an answer? Is that what you are telling me?

2

MS. BERMAN: Well, and we also have an outstanding Stay

3 Motion but, yes, we did.

4

THE COURT: The Stay Motion wasn't granted.

5

MS. BERMAN: And that's why we filed the partial Motion

6

To Dismiss so that was our filing that was in response to the

7

complaint and if, of course, your Honor acts on that, then we

8

would go back at that point and answer if we are -- if that's

9

required.

10

THE COURT: What part is left after Mr. Klayman's

11

filing on Friday?

12

MS. BERMAN: After--

13

THE COURT: Constitutional claims?

14

MS. BERMAN: Yes. I think that it is fair to say that

15

the constitutional claims are still left. We did not move to

16

dismiss those claims because the Fourth Amendment claim is

17

obviously on appeal to the D.C. Circuit; and the First Amendment

18

and Fifth Amendment claims there is enough, we felt, there was

19

enough of an overlap with issues regarding the Fourth Amendment

20

claims that we did not move to dismiss on those grounds at this

21

time.

22

THE COURT: Why not answer as to the constitutional

23

claims?

24

MS. BERMAN: I am sorry.

25

THE COURT: Why don't you file answers to the

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 7 of 27 7

1

constitutional claims?

2

MS. BERMAN: As I said, we believe that there is case

3

law that supports the position that when you file a partial

4 Motion To Dismiss, it tolls the time to answer the remaining

5 claims in the case.

6

THE COURT: D.C. Circuit?

7

MS. BERMAN: I know that there is Wright Miller has a

8

chapter on this and there is case law cited in there. I can't

9

cite the cases right now. But I know the Government has done

10

this in other cases before too so --

11

THE COURT: Is that what you are doing in New York?

12

MS. BERMAN: The New York case was dismissed.

13

THE COURT: No. Is that the position you took before

14

the Judge ruled in New York?

15

MS. BERMAN: We filed a Motion To Dismiss the entire

16

case at the same time we opposed to Preliminary Injunction.

17

THE COURT: Okay.

18

MS. BERMAN: And that was granted, the Motion To

19

Dismiss was granted in full.

20

THE COURT: So what's the big deal about answering the

21

constitutional claims? Why is that a big problem for the

22

Government?

23

MS. BERMAN: Well, your Honor, we would have to answer

24

the factual allegations of the complaint. That's what an answer

25

for is factual allegations. So, you know, if we had to parse

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 8 of 27 8

1

and figure out which facts related solely to the constitutional

2

claims as opposed to the other claims, that would be difficult

3

and something that we would have to, you know, presumably in any

4 further -- you would have two answers out there. One, we would

5

have to answer for the claims that's in the current partial

6

Motion To Dismiss and that could be very confusing.

7

So I do point out also that you say what's left after

8

the opposition to the partial Motion To Dismiss? So it is just

9

the constitutional claims, and I think that the cases also sort

10

of further narrow to just against the Government Defendants. As

11

you started out saying, the Verizon Defendants are now out of

12

the case.

13

The Plaintiffs have also dropped the internet companies

14

and their CEOs from the Klayman Two proposed second Amended

15

Complaint. And so, you know, we think that the case is narrowed

16

in that way as well and it also is narrowed in terms of, as I

17

said, the allegations that they have made about Section 702 and

18

internet metadata are not sufficient to give them standing. So

19

it is really is about Section 215 telephony metadata.

20

We think those are all good reasons for granting the

21

stay appending the appeal because really it has now narrowed to

22

the critical issue that's before the D.C. Circuit; and we don't

23

think that it makes sense to go forward on both tracks while the

24

D.C. Circuit is deciding the Fourth Amendment claims, the D.C.

25

Circuit will presumably give us some good guidance on the

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 9 of 27 9

1

viability of that claim and we can avoid duplicative litigation.

2

In the meantime, we can save the resources that it

3

would take to proceed on both tracks and we can also prevent

4

any unnecessary risk of disclosure of still classified

5

information.

6

So we really think that the case is in an even stronger

7

posture now than it was --

8

THE COURT: What do you mean the risk of disclosure of

9

classified information? You mean in answering the complaint you

10

are going to have to reveal classified information?

11

MS. BERMAN: No. I don't mean in answering the

12

complaint. I mean the Plaintiffs in their response to our Stay

13

Motion have confirmed that they want to seek discovery, you

14

know, to determine the scope of the agency's surveillance and

15

whether their metadata has been correctly accessed had and

16

reviewed.

17

So they are clearly -- and they have also asked for a

18

security clearance for their lawyer. They are clearly bringing

19

to the fore issues that could risk the disclosure of still

20

classified information; and we think that that litigation

21

surrounding will be very contentious, and it is also something

22

that is potentially avoidable depending on the outcome of the

23

D.C. Circuit appeal.

24

THE COURT: So what's left of your Motion To Dismiss

25

now that he has filed the filing he filed on Friday? What's

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 10 of 27 10

1

left?

2

MS. BERMAN: We have a reply due next week, next Monday

3

and in that reply we would explain why there is still no

4

standing for the Section 702 and internet metadata claims.

5

And that has to do with the fact that the allegations

6

that they are seeking to amend with the Second Amended

7

Complaint, they have alleged that they have, the Plaintiffs,

8

communicate with people in foreign countries and they have

9

alleged that some of those countries, again allegedly, harbor

10

terrorists, but they haven't alleged that they are communicating

11

with terrorists, they haven't alleged that even if they were,

12

that those people that they are communicating with have been

13

targeted for communication under Section 702 and, you know, as

14

you know in the Amnesty International case, you can't just

15

assume that your communications would be caught up or would be

16

incidentally intercepted through a Section 702 targeting in

17

order to get standing to challenge Section 702.

18

THE COURT: That's for the second case? This is your

19

reasoning for claim Klayman Two.

20

MS. BERMAN: Yes.

21

THE COURT: What's about Klayman One? What's left of

22

your Motion To Dismiss as to Klayman One, standing to assert

23

constitutional violations?

24

MS. BERMAN: I think for Klayman One, the other --

25

basically all the claims that we moved to dismiss on have been

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 11 of 27 11

1

conceded.

2

THE COURT: All right. So we will dismiss that. We

3

will deny that Motion To Dismiss as to Klayman One.

4

MS. BERMAN: Right.

5

THE COURT: So now you need to answer.

6

MS. BERMAN: The constitutional claims at that point.

7

THE COURT: All right. So now you need to answer

8

Klayman One.

9

MS. BERMAN: Well, like I said, your Honor, his

10

opposition was just filed last Friday. It was actually due I

11

think a week ago before that. So we have to digest that and we

12

have to see what's next.

13

THE COURT: I just denied your Motion To Dismiss as to

14

Klayman One. Did you understand what I just said?

15

MS. BERMAN: No, you said that --

16

THE COURT: What's left of your Motion To Dismiss as to

17

Klayman One is denied.

18

MS. BERMAN: But there is nothing left. What we say

19

there is nothing left I believe because he conceded that the

20

claims we moved to dismiss on were gone. He withdrew those

21

claims so we essentially got the relief we asked for on our

22

Motion To Dismiss claim in One.

23

THE COURT: And it is denied as moot.

24

MS. BERMAN: Okay.

25

THE COURT: So when are you going to answer Klayman

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 12 of 27 12

1

One?

2

MS. BERMAN: Okay. I would like to confer with my

3

colleagues for a moment if that's okay.

4

THE COURT: You can have a week.

5

MS. BERMAN: A week to answer or to confer? Would you

6

mind if I conferred with my colleagues?

7

THE COURT: Was that a joke?

8

MS. BERMAN: That was not a joke. I didn't understand

9

you.

10

THE COURT: You have a week to file your answer as to

11

Klayman One.

12

MS. BERMAN: Okay.

13

THE COURT: Now, what's left as to Klayman Two?

14

MS. BERMAN: So what's left as to Klayman Two --

15

THE COURT: By the way, who is at this table?

16

MS. BERMAN: Sure. Absolutely. I am sorry, your

17

Honor. I have Jim Gilligan, Tony Cappolino --

18

THE COURT: No. No. Where they are from.

19

MS. BERMAN: Oh, from the Department of Justice.

20

THE COURT: Just each one and where they are from.

21

MS. BERMAN: Jim Gilligan from the Department of

22

Justice, the Civil Division. Anthony Coppolino Department of

23

Justice Civil Division. Rodney Patton, Department of Justice

24

Civil Division and Bryan Dearinger Department of Justice Civil

25

Division.

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 13 of 27 13

1

THE COURT: Okay.

2

MS. BERMAN: So to get back to your question on Klayman

3

Two, we have the reply due next Monday and then we will set out

4 why we believe there is no standing for the Section 702 and the

5 internet metadata claims. Is that it? Any further questions?

6

THE COURT: Do you have anything else?

7

MS. BERMAN: No. Thank you, your Honor.

8

THE COURT: How about Klayman Three, have you got

9

anything to say about that?

10

MS. BERMAN: Klayman Three, your Honor, first of all,

11

it hasn't been served and it seems to be entirely duplicative of

12

Klayman Two just with the class action allegations; and we think

13

it is a blatant attempt to circumvent the rules on class

14

certification requirements. So -- but again it hasn't even been

15

served.

16

THE COURT: All right. We will see what it looks like

17

when it comes in.

18

MS. BERMAN: Okay. Thank you, your Honor.

19

THE COURT: Mr. Klayman, do you have anything you want

20

to add, subtract, amplify?

21

MR. KLAYMAN: Thank you, your Honor. Just briefly, we

22

filed the pleadings we did because we are trying to streamline

23

the case, and we would like it to move as quickly as possible

24

because as the Mills case points out in the D.C. Circuit, when

25

constitutional rights are violated for one minute, that's one

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 14 of 27 14

1

minute too long.

2

And in terms of the way these cases should proceed in

3

terms of discovery, we can start discovery without security

4

clearances. In fact, your Honor has the ability to take things

5

in-camera and consequently we are amenable to any method that

6

would push the case along as long as you could get the truth

7

from the NSA Defendants which other courts have had a hard time

8

doing in the past.

9

And your role is extremely important, as I said last

10

time, because there is no independent oversight here. Just a

11

few weeks after you ruled, the NSA Defendants ran off to the

12

FISC Court again and had the FISC Court rubber stamp what they

13

have been doing.

14

In terms of what they are claiming with regard to

15

Section 215 with regard to internet metadata, the cases are

16

clear that a Defendant just can't stop the conduct voluntarily

17

and try to in effect pull the rug out from under a Court making

18

the decisions here. The Supreme Court has held, here is a quote

19

from the Supreme Court in the Friends of Earth case.

20

The Supreme Court stated: It is well settled that a

21

Defendant's voluntary cessation of a challenge practice does not

22

deprive a Federal Court of its power to determine legality to

23

practice because if it did, the Courts would be compelled to

24

leave the Defendant free to return to his old ways.

25

And, consequently, there is no reason why this case

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 15 of 27 15

1

cannot proceed directly ahead; and your Honor has the ability to

2

determine whether or not they are still collecting internet

3 metadata and your Honor has the ability to determine what

4 happens with regard to Prism and we did specify with greater

5

degree of detail the contacts I have had.

6

I have had a lot of contact, for instance, with the

7

Israeli Government. I have had contact the Prime Minister's

8

Office there, and it was revealed that just about a month ago,

9

that the NSA was tapping the phones of the Israeli Prime

10

Minister. So this is not far-fetched.

11

Any call into the Israeli Prime Minister's Office or

12

Daniel Shapiro who was the consul, first the deputy foreign

13

minister in Israel when I met with him and then he became consul

14

from Los Angeles, now he is the Ambassador. That would be picked

15

up by NSA for sure.

16

So consequently these matters need to move forward and

17

we are ready to proceed, and that's basically all I have to say.

18

THE COURT: Well, the Motion To Dismiss that they are

19

currently responding to won't be ripe until next week in any

20

event. Obviously I need to take a look at whatever they file

21

and assess whether or not in light of the appeal that's going on

22

right now the Court is in a position to entertain it frankly.

23

So that will probably be the next step for me in this

24

process, taking a look at the filings that have come in on the

25

Motion To Dismiss and assessing whether or not holding a hearing

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 16 of 27 16

1

on the Motion To Dismiss while the case is pending appeal on the

2 constitutional issues is consistent and appropriate with D.C.

3

Circuit precedent.

4

So I will try to figure that out sometime in the next

5

two weeks. If I decide it is, then I will probably set a

6

hearing for oral argument the on the Motion To Dismiss probably

7

within three weeks from now, four weeks from now.

8

MR. KLAYMAN: I might point out too, your Honor reached

9

the Fourth Amendment claims. We have First Amendment claims and

10

Fifth Amendment claims as well so they are live. In other

11

words, they are not on appeal so we are moving everything we can

12

to get as quick a determination as we can and that your Honor

13

will probably read about -- today we filed a Petition For Writ

14

of Certiori with the Supreme Court asking them to take the case

15

from the D.C. Circuit.

16

That's how important it is to move the case. And with

17

regard to discovery, we can fashion a method of discovery that

18

doesn't in any way compromise national security. We don't want

19

to compromise national security. That's not what this case has

20

ever been about.

21

This case is about going overboard and getting

22

everybody's metadata in this country over 300 million people.

23

There are many ways through in-camera review by your Honor. We

24

can also take depositions and someone from the NSA can be there

25

and make a ruling whether we are getting close to national

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 17 of 27 17

1

security information and you can come in and break any impasse.

2

I did that when we had our China Gate case against the

3

Commerce Department when I was with Judicial Watch. We had a CIA

4 Judge sitting there making a decision while I was deposing the

5

CIA briefer who had given classified information to someone who

6

was believed to be a Chinese spy, John Wong.

7

So there is lots of ways that we can do this, but we

8

can't -- I don't believe that we should waste any time here

9

because the appellate process can take a long time. They have

10

already tried to slow it down to some degree. They took 3 weeks

11

to file a two line Notice of Appeal. They didn't need to do

12

that. They are trying to slowing it down by not filing the

13

answers on a timely basis.

14

I just want to get the show on the road for the

15

American people and for myself and the other Plaintiffs because

16

I am a lawyer and I have reason to believe that, you know, they

17

are accessing my data and it violates my attorney-client

18

privilege with my clients. It has a chilling affect. I can't

19

even talk on the phone any more and I have to go visit people

20

and even though who knows if cell phones are being turned on

21

which they have the capability to do that.

22

So speed is of the essence and there are ways that we

23

can proceed ahead. Government is very wealthy. We are not. So

24

even if in the unlikely event they were to prevail either at the

25

D.C. Circuit on appeal, there is very little of the taxpayer

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 18 of 27 18

1

money that would be wasted in doing that as opposed to the harm

2

that would be caused to us, the American people and to the

3

Plaintiffs.

4

So as long as we can move ahead, we don't even need to

5 get into classified information initially. Let the case move

6

forward respectfully. We will do a case management report. We

7

will talk about security clearances down the road. That would

8

take some time, but we can get it rolling right now and your

9

Honor can certainly take a look at what's been going on over

10

there because frankly the American people haven't had the truth

11

and for Mr. Clapper to come forward with a letter to say that

12

internet metadata ceased in 2011 is fantasy land.

13

You might as well go to Walt Disney World on that one

14

after he did not tell the Congress the truth. That's not to

15

attack him personally but the reality is these Defendants have

16

not been honest with Courts or the American people. We just

17

can't believe what they say, and that's why we need to move it

18

along because every day it occurs, as it did in the Mills case,

19

it is harm to Plaintiffs and the American people. So thank you.

20

THE COURT: All right. Well, I will wait to see what's

21

filed next Monday both in the reply brief and the answer and

22

then I will endeavor to make a decision very quickly thereafter

23

about setting oral argument or not setting oral argument on the

24

Motion To Dismiss as it relates to the Klayman Two.

25

MS. BERMAN: If, your Honor, I could make one more

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 19 of 27 19

1

point. Thank you. Since we are now going to be answering the

2 Klayman One complaint, as I mentioned before, in their

3 opposition to our Motion To Dismiss, they withdrew the APA, FCA

4 and tort claims and it is captioned for both claims -- I am

5 sorry -- for both complaints, but they have only filed a

6 Proposed Amended Complaint for Klayman Two.

7

So we would ask that those claims also be removed from

8

Klayman One as well which will help us in answering.

9

THE COURT: That makes sense. I think you might as

10

well if you are going to be taking that position, Mr. Klayman,

11

modify Klayman One to be consistent therewith.

12

MR. KLAYMAN: Sure.

13

THE COURT: Why don't you file a revised version of

14

Klayman One. They can answer that one.

15

MS. BERMAN: Thank you, your Honor. And also I wanted

16

to point out the appeal is expedited under the Court's rules and

17

the Court of Appeals has already set a schedule for Motions and

18

we expect that my understanding is that they will be setting a

19

briefing schedule soon.

20

THE COURT: Motions? They do Motions?

21

MS. BERMAN: They do. Procedural and dispositive. So

22

Dispositive Motions I believe are due February 27th. I just

23

wanted to make you aware of that.

24

THE COURT: Dispositive Motions?

25

MS. BERMAN: Yes.

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 20 of 27 20

1

THE COURT: On an appeal from a PI ruling?

2

MS. BERMAN: Um-hmm. And then lastly, your Honor, the

3

last point I wanted to make is that given that we are arguing no

4

standing for the Prism Section 702 and internet metadata claims,

5

we obviously think there should not be any discovery on those

6

claims until those arguments are resolved. Thank you, your

7

Honor.

8

THE COURT: You are not in it any more, Mr. Moss?

9

MR. MOSS: We are not any more.

10

THE COURT: Thanks for your hard work.

11

MR. MOSS: Thank you.

12

THE COURT: We will stand in recess.

13

(Whereupon, at 3:13 p.m., the proceedings were

14

concluded.)

15

16

17

18

19

20

21

22

23

24

25

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 21 of 27 21

1

CERTIFICATE OF REPORTER

2

3

I, Patty A. Gels, certify that the foregoing is a

4 correct transcript from the record of proceedings in the

5

above-entitled matter.

6

7

8

9

_________________________

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 22 of 27 1

1
13-851 [1] - 3:3 13-881 [1] - 3:3 1875 [1] - 1:25
2
20 [1] - 1:21 20001 [2] - 1:21, 2:9 20006 [2] - 1:17, 1:25 20044 [1] - 2:4 2011 [1] - 18:12 2014 [1] - 1:6 202 [1] - 2:9 2020 [1] - 1:17 215 [2] - 8:19, 14:15 27th [1] - 19:22 2:30 [1] - 1:7
3
3 [2] - 1:6, 17:10 300 [1] - 16:22 31st [1] - 4:1 3:13 [1] - 20:13
4
41 [1] - 4:1 4700-A [1] - 2:8
7
702 [9] - 5:3, 5:13, 8:17, 10:4, 10:13, 10:16, 10:17, 13:4, 20:4
7146 [1] - 2:4
9
962-0200 [1] - 2:9
A
ability [3] - 14:4, 15:1, 15:3 above-entitled [1] - 21:5 absolutely [1] - 12:16 accessed [1] - 9:15 accessing [1] - 17:17 acknowledged [1] - 5:9 Action [2] - 3:2, 3:3 action [1] - 13:12 acts [1] - 6:7 add [2] - 5:13, 13:20 administrative [1] - 5:11 affect [1] - 17:18 afternoon [3] - 3:9, 3:10, 3:13 Agency [1] - 2:3 agency's [1] - 9:14 ago [2] - 11:11, 15:8 ahead [3] - 15:1, 17:23, 18:4 aided [1] - 2:11

AL [2] - 1:4, 1:8 al [2] - 3:3, 3:4 allegations [6] - 5:13, 7:24, 7:25, 8:17, 10:5, 13:12 alleged [4] - 10:7, 10:9, 10:10, 10:11 allegedly [1] - 10:9 Ambassador [1] - 15:14 amenable [1] - 14:5 amend [2] - 5:12, 10:6 Amended [3] - 8:14, 10:6, 19:6 Amendment [8] - 6:16, 6:17, 6:18, 6:19, 8:24, 16:9, 16:10 American [5] - 17:15, 18:2, 18:10, 18:16, 18:19 Amnesty [1] - 10:14 amplify [1] - 13:20 Angeles [1] - 15:14 answer [17] - 4:20, 5:5, 5:18, 6:1, 6:8, 6:22, 7:4, 7:23, 7:24, 8:5, 11:5, 11:7, 11:25, 12:5, 12:10, 18:21, 19:14 answered [1] - 4:13 answering [7] - 4:12, 5:21, 7:20, 9:9, 9:11, 19:1, 19:8 answers [4] - 4:21, 6:25, 8:4, 17:13 Anthony [1] - 12:22 APA [3] - 5:1, 5:8, 19:3 Appeal [1] - 17:11 appeal [10] - 4:11, 6:17, 8:21, 9:23, 15:21, 16:1, 16:11, 17:25, 19:16, 20:1 Appeals [1] - 19:17 APPEARANCES [1] - 1:14 appellate [1] - 17:9 appending [1] - 8:21 applied [1] - 3:24 approach [1] - 3:5 appropriate [1] - 16:2 arguing [1] - 20:3 argument [5] - 3:16, 4:2, 16:6, 18:23 arguments [1] - 20:6 ARTRIP [1] - 2:7 assert [1] - 10:22 assess [1] - 15:21 assessing [1] - 15:25 assume [1] - 10:15 attack [1] - 18:15 attempt [1] - 13:13 attorney [1] - 17:17 attorney-client [1] - 17:17 Avenue [3] - 1:17, 1:21, 1:25 avoid [1] - 9:1 avoidable [1] - 9:22 aware [1] - 19:23
B
Barack [1] - 3:4 BARACK [1] - 1:8 basis [1] - 17:13 became [1] - 15:13 BEFORE [1] - 1:12

behalf [1] - 3:14 BERMAN [42] - 1:19, 3:10, 4:23, 5:20, 6:2, 6:5, 6:12, 6:14, 6:24, 7:2, 7:7, 7:12, 7:15, 7:18, 7:23, 9:11, 10:2, 10:20, 10:24, 11:4, 11:6, 11:9, 11:15, 11:18, 11:24, 12:2, 12:5, 12:8, 12:12, 12:14, 12:16, 12:19, 12:21, 13:2, 13:7, 13:10, 13:18, 18:25, 19:15, 19:21, 19:25, 20:2 Berman [1] - 3:10 big [2] - 7:20, 7:21 blatant [1] - 13:13 Box [1] - 2:4 break [1] - 17:1 brief [2] - 5:16, 18:21 briefer [1] - 17:5 briefing [1] - 19:19 briefly [1] - 13:21 bringing [1] - 9:18 Bryan [1] - 12:24 BRYAN [1] - 1:20
C
CA13-851 [1] - 1:4 CA13-881 [1] - 1:5 camera [2] - 14:5, 16:23 cannot [2] - 5:10, 15:1 capability [1] - 17:21 Cappolino [1] - 12:17 captioned [1] - 19:4 case [29] - 4:1, 4:11, 4:12, 4:13, 5:24, 7:2, 7:5, 7:8, 7:12, 7:16, 8:12, 8:15, 9:6, 10:14, 10:18, 13:23, 13:24, 14:6, 14:19, 14:25, 16:1, 16:14, 16:16, 16:19, 16:21, 17:2, 18:5, 18:6, 18:18 cases [5] - 7:9, 7:10, 8:9, 14:2, 14:15 caught [1] - 10:15 caused [1] - 18:2 ceased [1] - 18:12 cell [1] - 17:20 CEOs [1] - 8:14 certainly [1] - 18:9 CERTIFICATE [1] - 21:1 certification [1] - 13:14 certify [1] - 21:3 certiori [1] - 16:14 cessation [1] - 14:21 challenge [2] - 10:17, 14:21 chapter [1] - 7:8 chilling [1] - 17:18 China [1] - 17:2 Chinese [1] - 17:6 CIA [2] - 17:3, 17:5 Circuit [10] - 6:17, 7:6, 8:22, 8:24, 8:25, 9:23, 13:24, 16:3, 16:15, 17:25 circumstances [1] - 3:24 circumvent [1] - 13:13 cite [1] - 7:9 cited [1] - 7:8 Civil [6] - 3:2, 3:3, 12:22, 12:23, 12:24

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 23 of 27 2

claim [6] - 5:1, 5:2, 6:16, 9:1, 10:19, 11:22
claiming [1] - 14:14 claims [36] - 5:2, 5:3, 5:4, 5:9, 5:14, 5:22, 6:13, 6:15, 6:16, 6:18, 6:20, 6:23, 7:1, 7:5, 7:21, 8:2, 8:5, 8:9, 8:24, 10:4, 10:25, 11:6, 11:20, 11:21, 13:5, 16:9, 16:10, 19:4, 19:7, 20:4, 20:6 Clapper [1] - 18:11 class [2] - 13:12, 13:13 classified [6] - 9:4, 9:9, 9:10, 9:20, 17:5, 18:5 clear [3] - 4:4, 4:5, 14:16 clearance [1] - 9:18 clearances [2] - 14:4, 18:7 clearly [2] - 9:17, 9:18 client [1] - 17:17 clients [1] - 17:18 close [1] - 16:25 colleagues [2] - 12:3, 12:6 collecting [1] - 15:2 collection [1] - 5:3 COLUMBIA [1] - 1:2 Commerce [1] - 17:3 communicate [1] - 10:8 communicating [2] - 10:10, 10:12 communication [1] - 10:13 Communications [1] - 1:23 communications [1] - 10:15 companies [1] - 8:13 company's [1] - 4:4 compelled [1] - 14:23 complaint [8] - 5:5, 5:12, 5:19, 6:7, 7:24, 9:9, 9:12, 19:2 Complaint [3] - 8:15, 10:7, 19:6 complaints [6] - 4:12, 4:13, 4:21, 4:24, 4:25, 19:5 complied [1] - 4:15 compromise [2] - 16:18, 16:19 computer [1] - 2:11 computer-aided [1] - 2:11 conceded [2] - 11:1, 11:19 concluded [1] - 20:14 conduct [1] - 14:16 confer [2] - 12:2, 12:5 CONFERENCE [1] - 1:11 conferred [1] - 12:6 confirmed [1] - 9:13 confusing [1] - 8:6 confusion [1] - 5:24 Congress [1] - 18:14 consequently [3] - 14:5, 14:25, 15:16 consider [1] - 3:22 consistent [2] - 16:2, 19:11 constitutional [11] - 6:13, 6:15, 6:22, 7:1, 7:21, 8:1, 8:9, 10:23, 11:6, 13:25, 16:2 consul [2] - 15:12, 15:13 contact [2] - 15:6, 15:7

contacts [1] - 15:5 content [1] - 5:3 contentious [1] - 9:21 Coppolino [1] - 12:22 correct [1] - 21:4 correctly [1] - 9:15 counsel [1] - 3:4 countries [2] - 10:8, 10:9 country [1] - 16:22 course [2] - 3:17, 6:7 Court [13] - 2:7, 2:8, 4:5, 14:12, 14:17, 14:18, 14:19, 14:20, 14:22, 15:22, 16:14, 19:17 COURT [49] - 1:1, 3:8, 3:12, 3:15, 5:18, 5:25, 6:4, 6:10, 6:13, 6:22, 6:25, 7:6, 7:11, 7:13, 7:17, 7:20, 9:8, 9:24, 10:18, 10:21, 11:2, 11:5, 11:7, 11:13, 11:16, 11:23, 11:25, 12:4, 12:7, 12:10, 12:13, 12:15, 12:18, 12:20, 13:1, 13:6, 13:8, 13:16, 13:19, 15:18, 18:20, 19:9, 19:13, 19:20, 19:24, 20:1, 20:8, 20:10, 20:12 Court's [2] - 4:16, 19:16 Courthouse [1] - 2:8 COURTROOM [1] - 3:2 Courts [2] - 14:23, 18:16 courts [1] - 14:7 critical [1] - 8:22 cure [1] - 5:15 current [1] - 8:5 Cutler [1] - 1:24
D
D.C [11] - 2:9, 6:17, 7:6, 8:22, 8:24, 9:23, 13:24, 16:2, 16:15, 17:25
Daniel [1] - 15:12 data [1] - 17:17 DC [4] - 1:17, 1:21, 1:25, 2:4 deal [2] - 4:7, 7:20 Dearinger [1] - 12:24 DEARINGER [1] - 1:20 decide [1] - 16:5 deciding [1] - 8:24 decision [2] - 17:4, 18:22 decisions [1] - 14:18 default [1] - 4:18 Defendant [4] - 1:23, 2:2, 14:16, 14:24 Defendant's [1] - 14:21 Defendants [9] - 1:9, 1:18, 3:11, 3:14, 8:10, 8:11, 14:7, 14:11, 18:15 degree [2] - 15:5, 17:10 denied [3] - 11:13, 11:17, 11:23 deny [1] - 11:3 Department [8] - 1:20, 2:3, 12:19, 12:21, 12:22, 12:23, 12:24, 17:3 deposing [1] - 17:4 depositions [1] - 16:24 deprive [1] - 14:22 DEPUTY [1] - 3:2 deputy [1] - 15:12

detail [1] - 15:5 determination [1] - 16:12 determine [5] - 3:23, 9:14, 14:22, 15:2, 15:3 difficult [1] - 8:2 digest [1] - 11:11 directly [1] - 15:1 disclosure [3] - 9:4, 9:8, 9:19 discovery [6] - 9:13, 14:3, 16:17, 20:5 Dismiss [23] - 3:24, 4:24, 5:1, 5:6, 5:21, 6:6, 7:4, 7:15, 7:19, 8:6, 8:8, 9:24, 10:22, 11:3, 11:13, 11:16, 11:22, 15:18, 15:25, 16:1, 16:6, 18:24, 19:3 dismiss [7] - 5:1, 5:22, 6:16, 6:20, 10:25, 11:2, 11:20 dismissal [2] - 3:16, 3:25 Dismissal [2] - 3:18, 3:21 dismissed [1] - 7:12 Disney [1] - 18:13 dispositive [1] - 19:21 Dispositive [2] - 19:22, 19:24 DISTRICT [3] - 1:1, 1:2, 1:12 Division [4] - 12:22, 12:23, 12:24, 12:25 Docket [1] - 1:4 done [1] - 7:9 Dorr [1] - 1:24 down [3] - 17:10, 17:12, 18:7 dropped [1] - 8:13 due [6] - 4:25, 5:17, 10:2, 11:10, 13:3, 19:22 duplicative [3] - 5:23, 9:1, 13:11
E
Earth [1] - 14:19 effect [1] - 14:17 either [1] - 17:24 endeavor [1] - 18:22 entered [2] - 3:18, 3:25 entertain [1] - 15:22 entertaining [1] - 3:22 entire [1] - 7:15 entirely [1] - 13:11 entitled [1] - 21:5 essence [1] - 17:22 essentially [3] - 4:11, 4:17, 11:21 et [2] - 3:3, 3:4 ET [2] - 1:4, 1:8 event [2] - 15:20, 17:24 excuse [1] - 3:20 exhausted [1] - 5:10 existing [1] - 3:22 expect [1] - 19:18 expedited [1] - 19:16 explain [2] - 5:16, 10:3 extremely [1] - 14:9

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 24 of 27 3

F
fact [2] - 10:5, 14:4 facts [1] - 8:1 factual [2] - 7:24, 7:25 fair [1] - 6:14 fantasy [1] - 18:12 far [1] - 15:10 far-fetched [1] - 15:10 fashion [1] - 16:17 FCA [3] - 5:2, 5:9, 19:3 February [2] - 1:6, 19:22 Federal [1] - 14:22 felt [1] - 6:18 fetched [1] - 15:10 few [1] - 14:11 Fifth [2] - 6:18, 16:10 figure [2] - 8:1, 16:4 file [7] - 6:1, 6:25, 7:3, 12:10, 15:20, 17:11, 19:13 filed [14] - 4:23, 5:5, 5:8, 5:11, 5:12, 6:5, 7:15, 9:25, 11:10, 13:22, 16:13, 18:21, 19:5 filing [5] - 5:20, 6:6, 6:11, 9:25, 17:12 filings [1] - 15:24 first [2] - 13:10, 15:12 First [2] - 6:17, 16:9 FISC [2] - 14:12 FOR [1] - 1:2 fore [1] - 9:19 foregoing [1] - 21:3 foreign [2] - 10:8, 15:12 forward [5] - 5:10, 8:23, 15:16, 18:6, 18:11 four [1] - 16:7 Fourth [3] - 6:16, 8:24, 16:9 fourth [1] - 6:19 frankly [2] - 15:22, 18:10 free [1] - 14:24 Friday [4] - 5:8, 6:11, 9:25, 11:10 Friends [1] - 14:19 full [1] - 7:19
G
Gate [1] - 17:2 Gels [1] - 21:3 GELS [1] - 2:7 Gilligan [2] - 12:17, 12:21 GILLIGAN [1] - 1:18 given [2] - 17:5, 20:3 Government [8] - 3:11, 4:19, 4:22, 4:23, 7:9, 8:10, 15:7, 17:23 government [1] - 7:22 Government's [1] - 4:12 granted [4] - 4:14, 6:4, 7:18, 7:19 granting [1] - 8:20 greater [1] - 15:4 grounds [1] - 6:20 guidance [1] - 8:25

H
Hale [1] - 1:24 harbor [1] - 10:9 hard [2] - 14:7, 20:10 harm [2] - 18:1, 18:19 hear [1] - 4:22 hearing [3] - 3:15, 15:25, 16:6 held [1] - 14:18 help [1] - 19:8 hmm [1] - 20:2 holding [1] - 15:25 honest [1] - 18:16 Honor [24] - 3:2, 3:7, 3:13, 4:23, 5:20, 6:7, 7:23, 11:9, 12:17, 13:7, 13:10, 13:18, 13:21, 14:4, 15:1, 15:3, 16:8, 16:12, 16:23, 18:9, 18:25, 19:15, 20:2, 20:7 HONORABLE [1] - 1:12 Hussein [1] - 3:4 HUSSEIN [1] - 1:8
I
identify [1] - 3:5 impasse [1] - 17:1 important [2] - 14:9, 16:16 in-camera [2] - 14:5, 16:23 incidentally [1] - 10:16 independent [1] - 14:10 information [7] - 9:5, 9:9, 9:10, 9:20, 17:1, 17:5, 18:5 Injunction [1] - 7:16 instance [1] - 15:6 instead [1] - 5:6 intercepted [1] - 10:16 International [1] - 10:14 internet [10] - 5:4, 5:14, 8:13, 8:18, 10:4, 13:5, 14:15, 15:2, 18:12, 20:4 Israel [1] - 15:13 Israeli [3] - 15:7, 15:9, 15:11 issue [6] - 3:19, 4:3, 4:8, 4:12, 8:22 issues [3] - 6:19, 9:19, 16:2
J
JAMES [2] - 1:18, 2:3 January [1] - 4:1 Jim [2] - 12:17, 12:21 John [1] - 17:6 joke [2] - 12:7, 12:8 Judge [2] - 7:14, 17:4 JUDGE [1] - 1:12 Judicial [1] - 17:3 Justice [7] - 1:20, 2:3, 12:19, 12:22, 12:23, 12:24
K
KLAYMAN [7] - 1:4, 1:16, 3:7, 3:9, 13:21, 16:8, 19:12

Klayman [29] - 1:16, 3:3, 3:7, 5:12, 8:14, 10:19, 10:21, 10:22, 10:24, 11:3, 11:8, 11:14, 11:17, 11:25, 12:11, 12:13, 12:14, 13:2, 13:8, 13:10, 13:12, 13:19, 18:24, 19:2, 19:6, 19:8, 19:10, 19:11, 19:14
Klayman's [1] - 6:10 knows [1] - 17:20
L
lack [1] - 4:6 land [1] - 18:12 LARRY [2] - 1:4, 1:16 Larry [3] - 1:16, 3:3, 3:7 last [3] - 11:10, 14:9, 20:3 lastly [1] - 20:2 law [5] - 4:4, 4:6, 5:24, 7:3, 7:8 Law [1] - 1:16 lawyer [2] - 9:18, 17:16 lay [1] - 5:17 Leave [1] - 5:12 leave [1] - 14:24 leaves [1] - 4:9 lectern [1] - 3:5 left [11] - 6:10, 6:15, 8:7, 9:24, 10:1, 10:21, 11:16, 11:18, 11:19, 12:13, 12:14 legality [1] - 14:22 LEON [1] - 1:12 letter [1] - 18:11 light [1] - 15:21 line [1] - 17:11 litigation [2] - 9:1, 9:20 live [1] - 16:10 LLP [1] - 1:24 look [3] - 15:20, 15:24, 18:9 looks [1] - 13:16 Los [1] - 15:14
M
machine [1] - 2:11 management [1] - 18:6 Marcia [1] - 3:10 MARCIA [1] - 1:19 Massachusetts [1] - 1:21 matter [3] - 4:3, 4:5, 21:5 matters [1] - 15:16 mean [4] - 9:8, 9:9, 9:11, 9:12 meantime [1] - 9:2 mentioned [1] - 19:2 met [1] - 15:13 metadata [12] - 5:4, 5:14, 8:18, 8:19, 9:15, 10:4, 13:5, 14:15, 15:3, 16:22, 18:12, 20:4 method [2] - 14:5, 16:17 might [4] - 4:6, 16:8, 18:13, 19:9 Miller [1] - 7:7 million [1] - 16:22

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 25 of 27 4

Mills [2] - 13:24, 18:18 mind [1] - 12:6 Minister [1] - 15:10 minister [1] - 15:13 Minister's [2] - 15:7, 15:11 minute [2] - 13:25, 14:1 modify [1] - 19:11 moment [1] - 12:3 Monday [4] - 5:17, 10:2, 13:3, 18:21 money [1] - 18:1 month [1] - 15:8 moot [1] - 11:23 Moss [2] - 3:13, 20:8 MOSS [4] - 1:23, 3:13, 20:9, 20:11 Motion [28] - 4:24, 5:1, 5:6, 5:7, 5:12, 5:21, 5:25, 6:3, 6:4, 6:5, 7:4, 7:15, 7:18, 8:6, 8:8, 9:13, 9:24, 10:22, 11:3, 11:13, 11:16, 11:22, 15:18, 15:25, 16:1, 16:6, 18:24, 19:3 Motions [7] - 3:23, 19:17, 19:20, 19:22, 19:24 move [8] - 6:15, 6:20, 13:23, 15:16, 16:16, 18:4, 18:5, 18:17 moved [3] - 5:22, 10:25, 11:20 moving [1] - 16:11 MR [8] - 3:7, 3:9, 3:13, 13:21, 16:8, 19:12, 20:9, 20:11 MS [41] - 3:10, 4:23, 5:20, 6:2, 6:5, 6:12, 6:14, 6:24, 7:2, 7:7, 7:12, 7:15, 7:18, 7:23, 9:11, 10:2, 10:20, 10:24, 11:4, 11:6, 11:9, 11:15, 11:18, 11:24, 12:2, 12:5, 12:8, 12:12, 12:14, 12:16, 12:19, 12:21, 13:2, 13:7, 13:10, 13:18, 18:25, 19:15, 19:21, 19:25, 20:2
N
narrow [1] - 8:10 narrowed [3] - 8:15, 8:16, 8:21 national [3] - 16:18, 16:19, 16:25 National [1] - 2:3 need [7] - 11:5, 11:7, 15:16, 15:20, 17:11, 18:4, 18:17 New [3] - 7:11, 7:12, 7:14 next [9] - 5:17, 10:2, 11:12, 13:3, 15:19, 15:23, 16:4, 18:21 Nos [1] - 1:4 nothing [2] - 11:18, 11:19 Notice [3] - 3:18, 3:21, 17:11 NSA [5] - 14:7, 14:11, 15:9, 15:15, 16:24 NW [3] - 1:17, 1:21, 1:25
O
Obama [1] - 3:4 OBAMA [1] - 1:8 obviously [3] - 6:17, 15:20, 20:5 occurs [1] - 18:18 OF [3] - 1:2, 1:11, 21:1

Office [3] - 1:16, 15:8, 15:11 Official [1] - 2:8 old [1] - 14:24 once [1] - 3:25 One [12] - 10:22, 10:24, 11:3, 11:8, 11:14, 11:22, 12:1, 12:11, 19:2, 19:8, 19:11, 19:14 one [9] - 8:4, 10:21, 11:17, 12:20, 13:25, 18:13, 18:25, 19:14 ongoing [1] - 4:11 opposed [3] - 7:16, 8:2, 18:1 opposition [4] - 5:7, 8:8, 11:10, 19:3 oral [4] - 4:2, 16:6, 18:23 order [1] - 10:17 Order [1] - 4:5 otherwise [1] - 5:22 outcome [1] - 9:22 outstanding [1] - 6:2 overboard [1] - 16:21 overlap [1] - 6:19 oversight [1] - 14:10
P
p.m [2] - 1:7, 20:13 parse [1] - 7:25 part [1] - 6:10 partial [7] - 4:23, 5:1, 5:21, 6:5, 7:3, 8:5, 8:8 parties [3] - 3:17, 3:25, 4:10 past [1] - 14:8 Patton [1] - 12:23 PATTON [1] - 1:19 PATTY [1] - 2:7 Patty [1] - 21:3 pending [1] - 16:1 Pennsylvania [2] - 1:17, 1:25 people [9] - 10:8, 10:12, 16:22, 17:15, 17:19, 18:2, 18:10, 18:16, 18:19 permission [1] - 4:16 permitted [1] - 4:20 personally [1] - 18:15 Petition [1] - 16:13 phone [1] - 17:19 phones [2] - 15:9, 17:20 PI [1] - 20:1 picked [1] - 15:14 Pickering [1] - 1:24 Plaintiff [1] - 1:16 Plaintiffs [9] - 1:5, 3:7, 5:6, 8:13, 9:12, 10:7, 17:15, 18:3, 18:19 planned [1] - 4:19 pleadings [2] - 5:23, 13:22 PO [1] - 2:4 point [8] - 4:9, 6:8, 8:7, 11:6, 16:8, 19:1, 19:16, 20:3 points [1] - 13:24 position [7] - 4:7, 4:15, 4:17, 7:3, 7:13, 15:22, 19:10 possible [1] - 13:23

posture [1] - 9:7 potentially [1] - 9:22 power [1] - 14:22 practice [2] - 14:21, 14:23 precedent [1] - 16:3 prejudice [2] - 3:16, 3:21 Preliminary [1] - 7:16 prepared [1] - 5:16 presumably [2] - 8:3, 8:25 prevail [1] - 17:24 prevent [1] - 9:3 Prime [3] - 15:7, 15:9, 15:11 prism [3] - 5:3, 15:4, 20:4 privilege [1] - 17:18 Pro [1] - 1:16 problem [1] - 7:21 problems [1] - 5:15 procedural [1] - 19:21 proceed [5] - 9:3, 14:2, 15:1, 15:17, 17:23 Proceedings [1] - 2:11 proceedings [2] - 20:13, 21:4 process [2] - 15:24, 17:9 produced [1] - 2:11 proposed [2] - 8:14, 19:6 pull [1] - 14:17 push [1] - 14:6 put [1] - 4:17
Q
questions [1] - 13:5 quick [1] - 16:12 quickly [2] - 13:23, 18:22 quote [1] - 14:18
R
ran [1] - 14:11 RANDOLPH [1] - 1:23 Randolph [1] - 3:13 reached [1] - 16:8 read [1] - 16:13 ready [1] - 15:17 reality [1] - 18:15 really [6] - 3:18, 4:2, 4:8, 8:19, 8:21, 9:6 reason [2] - 14:25, 17:16 reasoning [1] - 10:19 reasons [1] - 8:20 recess [1] - 20:12 record [1] - 21:4 regard [6] - 4:3, 4:4, 14:14, 14:15, 15:4, 16:17 regarding [1] - 6:19 related [1] - 8:1 relates [1] - 18:24 relief [1] - 11:21 remaining [1] - 7:4 remedies [1] - 5:11

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 26 of 27 5

removed [1] - 19:7 reply [5] - 5:16, 10:2, 10:3, 13:3, 18:21 report [1] - 18:6 reported [1] - 2:11 REPORTER [1] - 21:1 Reporter [2] - 2:7, 2:8 required [1] - 6:9 requirements [1] - 13:14 resolved [1] - 20:6 resources [1] - 9:2 respectfully [1] - 18:6 respective [1] - 3:6 responded [1] - 5:7 responding [1] - 15:19 response [5] - 4:5, 4:24, 4:25, 6:6, 9:12 responsibility [1] - 4:6 result [1] - 4:7 return [1] - 14:24 reveal [1] - 9:10 revealed [1] - 15:8 review [1] - 16:23 reviewed [1] - 9:16 revised [1] - 19:13 RICHARD [1] - 1:12 rights [1] - 13:25 ripe [1] - 15:19 risk [3] - 9:4, 9:8, 9:19 RJL [1] - 1:5 RMR [1] - 2:7 road [2] - 17:14, 18:7 Rodney [1] - 12:23 RODNEY [1] - 1:19 role [1] - 14:9 rolling [1] - 18:8 Room [1] - 2:8 rubber [1] - 14:12 rug [1] - 14:17 rule [1] - 5:25 Rule [1] - 4:1 ruled [2] - 7:14, 14:11 rules [3] - 4:15, 13:13, 19:16 ruling [2] - 16:25, 20:1
S
save [1] - 9:2 schedule [2] - 19:17, 19:19 scope [1] - 9:14 Se [1] - 1:16 second [3] - 8:14, 10:6, 10:18 Section [11] - 5:3, 5:13, 8:17, 8:19, 10:4, 10:13, 10:16, 10:17, 13:4, 14:15, 20:4 Security [1] - 2:3 security [6] - 9:18, 14:3, 16:18, 16:19, 17:1, 18:7 see [4] - 4:9, 11:12, 13:16, 18:20 seek [1] - 9:13

seeking [1] - 10:6 sense [2] - 8:23, 19:9 seriously [1] - 3:22 served [2] - 13:11, 13:15 set [4] - 3:15, 13:3, 16:5, 19:17 setting [3] - 18:23, 19:18 settled [1] - 14:20 Shapiro [1] - 15:12 shorthand [1] - 2:11 show [1] - 17:14 sitting [1] - 17:4 sleeve [1] - 4:19 slow [1] - 17:10 slowing [1] - 17:12 solely [1] - 8:1 someone [2] - 16:24, 17:5 sometime [1] - 16:4 soon [1] - 19:19 sooner [1] - 3:17 sorry [3] - 6:24, 12:16, 19:5 sort [1] - 8:9 sorts [1] - 5:23 sought [1] - 5:1 specify [1] - 15:4 speed [1] - 17:22 spy [1] - 17:6 stamp [1] - 14:12 stand [1] - 20:12 standing [7] - 5:15, 8:18, 10:4, 10:17, 10:22, 13:4, 20:4 start [1] - 14:3 started [1] - 8:11 STATES [2] - 1:1, 1:12 STATUS [1] - 1:11 stay [5] - 4:14, 4:16, 6:2, 6:4, 8:21 Stay [1] - 9:12 step [1] - 15:23 still [6] - 4:10, 6:15, 9:4, 9:19, 10:3, 15:2 stipulation [3] - 3:16, 3:20, 3:25 stop [1] - 14:16 streamline [1] - 13:22 stronger [1] - 9:6 subtract [1] - 13:20 sufficient [1] - 8:18 supporting [1] - 5:24 supports [1] - 7:3 supposedly [1] - 5:13 Supreme [4] - 14:18, 14:19, 14:20, 16:14 surrounding [1] - 9:21 surveillance [1] - 9:14
T
table [4] - 3:19, 4:1, 4:8, 12:15 tables [1] - 3:6 tapping [1] - 15:9 targeted [1] - 10:13

targeting [1] - 10:16 taxpayer [1] - 17:25 telephony [1] - 8:19 terms [4] - 8:16, 14:2, 14:3, 14:14 terrorists [2] - 10:10, 10:11 THE [50] - 1:2, 1:12, 3:8, 3:12, 3:15, 5:18, 5:25, 6:4, 6:10, 6:13, 6:22, 6:25, 7:6, 7:11, 7:13, 7:17, 7:20, 9:8, 9:24, 10:18, 10:21, 11:2, 11:5, 11:7, 11:13, 11:16, 11:23, 11:25, 12:4, 12:7, 12:10, 12:13, 12:15, 12:18, 12:20, 13:1, 13:6, 13:8, 13:16, 13:19, 15:18, 18:20, 19:9, 19:13, 19:20, 19:24, 20:1, 20:8, 20:10, 20:12 themselves [1] - 4:17 thereafter [1] - 18:22 therewith [1] - 19:11 three [1] - 16:7 Three [2] - 13:8, 13:10 timely [1] - 17:13 today [1] - 16:13 tolls [2] - 5:21, 7:4 Tony [1] - 12:17 took [2] - 7:13, 17:10 tort [3] - 5:2, 5:9, 19:4 tracks [2] - 8:23, 9:3 TRANSCRIPT [1] - 1:11 transcript [2] - 2:11, 21:4 transcription [1] - 2:11 tried [1] - 17:10 truth [3] - 14:6, 18:10, 18:14 try [2] - 14:17, 16:4 trying [2] - 13:22, 17:12 turned [1] - 17:20 two [4] - 5:12, 8:4, 16:5, 17:11 Two [8] - 8:14, 10:19, 12:13, 12:14, 13:3, 13:12, 18:24, 19:6
U
U.S [3] - 1:20, 2:3, 2:8 um-hmm [1] - 20:2 unclear [2] - 4:4, 4:5 under [5] - 3:24, 4:1, 10:13, 14:17, 19:16 UNITED [2] - 1:1, 1:12 unlikely [1] - 17:24 unnecessary [1] - 9:4 up [3] - 4:19, 10:15, 15:15
V
Verizon [3] - 1:23, 3:14, 8:11 version [1] - 19:13 versus [1] - 3:3 viability [1] - 9:1 violated [1] - 13:25 violates [1] - 17:17 violations [1] - 10:23 visit [1] - 17:19

Case 1:13-cv-00851-RJL Document 84 Filed 02/20/14 Page 27 of 27 6
voluntarily [1] - 14:16 Voluntary [2] - 3:18, 3:21 voluntary [1] - 14:21
W
wait [2] - 4:9, 18:20 Walt [1] - 18:13 Washington [5] - 1:17, 1:21, 1:25, 2:4, 2:9 waste [1] - 17:8 wasted [1] - 18:1 Watch [1] - 17:3 ways [4] - 14:24, 16:23, 17:7, 17:22 wealthy [1] - 17:23 week [6] - 10:2, 11:11, 12:4, 12:5, 12:10, 15:19 weeks [5] - 14:11, 16:5, 16:7, 17:10 welcome [2] - 3:8, 3:12 Welcome [1] - 3:15 WHITMAN [1] - 2:3 Wilmer [1] - 1:24 withdrawn [1] - 5:8 withdrew [2] - 11:20, 19:3 Wong [1] - 17:6 words [1] - 16:11 World [1] - 18:13 Wright [1] - 7:7 Writ [1] - 16:13
Y
York [3] - 7:11, 7:12, 7:14 yourself [1] - 3:5

 
 Case 1:13-cv-00851-RJL Document 55 Filed 12/16/13 Page 1 of 41

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LARRY E. KLAYMAN, CHARLES STRANGE, and MARY ANNE STRANGE, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
BARACK HUSSEIN OBAMA, ERIC HIMPTON HOLDER, JR., KEITH B. ALEXANDER, LOWELL C. MCADAM, ROGER VINSON, VERIZON COMMUNICATIONS, NATIONAL SECURITY AGENCY, and U.S. DEPARTMENT OF JUSTICE,
Defendants.

No. 1:13-cv-00851-RJL

THE VERIZON DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT
Defendants Verizon Communications Inc. and its Chief Executive Officer Lowell C. McAdam (the “Verizon Defendants”) respectfully move to dismiss Plaintiffs’ Class Action Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(1), (2), & (6). Plaintiffs’ only specific allegation against Verizon is that it purportedly complied with an order of the Foreign Intelligence Surveillance Court (“FISC”) directing it to provide certain telephone call records to the government. Plaintiffs’ claims against the Verizon Defendants fail for multiple reasons.
Plaintiffs’ claims must be dismissed because the Deputy Attorney General has filed a certification under 50 U.S.C. § 1885a. Numerous other statutory provisions also make clear that
1

Case 1:13-cv-00851-RJL Document 55 Filed 12/16/13 Page 2 of 41

a telecommunications provider cannot be held liable for providing assistance to the government

pursuant to a court order, as Plaintiffs allege occurred here. See 50 U.S.C. § 1861(e); 18 U.S.C.

§ 2707(e)(1); 18 U.S.C. § 2703(e); 18 U.S.C. 2511(2)(a)(ii). Plaintiffs’ state-law claims are also

preempted by federal law and insufficiently pled. The Court lacks jurisdiction over Plaintiffs’

claim under the Administrative Procedure Act and, in any event, the Verizon Defendants are not

subject to suit under that statute. Plaintiffs’ stray conclusory allegations regarding

communications contents do not satisfy the standing requirements articulated by the Supreme

Court in Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), or the pleading

standards of Federal Rule of Civil Procedure 8. Plaintiffs’ claims against Verizon’s CEO must

be dismissed because Plaintiffs do not allege that Mr. McAdam personally did anything at all,

much less anything wrong. Finally, there is no personal jurisdiction over Verizon

Communications Inc. or Mr. McAdam in this district.

For the foregoing reasons, which are set out more fully in the accompanying

memorandum, Plaintiffs’ claims against the Verizon Defendants should be dismissed with

prejudice.

Dated: December 16, 2013

Respectfully submitted,

/s/ Randolph D. Moss
Randolph D. Moss (D.C. Bar No. 417749) Brian M. Boynton (D.C. Bar. No. 483187) WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 Tel.: (202) 663-6000 Fax: (202) 663-6363 randolph.moss@wilmerhale.com

Counsel for the Verizon Defendants

2

Case 1:13-cv-00851-RJL Document 55 Filed 12/16/13 Page 3 of 41

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LARRY E. KLAYMAN, CHARLES STRANGE, and MARY ANNE STRANGE, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
BARACK HUSSEIN OBAMA, ERIC HIMPTON HOLDER, JR., KEITH B. ALEXANDER, LOWELL C. MCADAM, ROGER VINSON, VERIZON COMMUNICATIONS, NATIONAL SECURITY AGENCY, and U.S. DEPARTMENT OF JUSTICE,
Defendants.

No. 1:13-cv-00851-RJL

MEMORANDUM OF LAW IN SUPPORT OF THE VERIZON DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT

December 16, 2013

Randolph D. Moss (D.C. Bar No. 417749) Brian M. Boynton (D.C. Bar. No. 483187) WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 Tel.: (202) 663-6000 Fax: (202) 663-6363 randolph.moss@wilmerhale.com
Counsel for the Verizon Defendants

Case 1:13-cv-00851-RJL Document 55 Filed 12/16/13 Page 4 of 41
TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1 BACKGROUND .............................................................................................................................3 ARGUMENT ...................................................................................................................................6 I. THE VERIZON DEFENDANTS ARE IMMUNE FROM SUIT .......................................6
A. Plaintiffs’ Claims Against The Verizon Defendants Must Be Dismissed Under The FISA Amendments Act Of 2008 ...........................................................6
B. Plaintiffs’ Claims Against The Verizon Defendants Also Fail Under Other Statutory Provisions ...............................................................................................10
II. PLAINTIFFS’ STATE-LAW CLAIMS MUST BE DISMISSED....................................12 A. Plaintiffs’ State-Law Claims Are Preempted.........................................................12 1. The Constitution Preempts The Field Of Matters Pertaining To National Security And Military Intelligence Gathering.............................13 2. Plaintiffs’ State-law Claims Are Also Barred By The Intergovernmental Immunity Doctrine ......................................................15 3. Plaintiffs’ State-Law Claims Also Conflict With Federal Law .................15 B. Plaintiffs’ State-Law Claims Otherwise Fail As A Matter Of Law.......................16
III. PLAINTIFFS’ APA CLAIM AGAINST THE VERIZON DEFENDANTS MUST BE DISMISSED ................................................................................................................20
IV. PLAINTIFFS’ VAGUE AND CURSORY ALLEGATIONS REGARDING ALLEGED DISCLOSURES OF CALL CONTENTS ARE INSUFFICIENT.................21 A. Plaintiffs Have Not Pled Facts Sufficient To Demonstrate Their Standing ..........22 B. Plaintiffs Fail To State A Plausible Claim For Relief ...........................................23
V. PLAINTIFFS’ CLAIMS AGAINST MR. MCADAM MUST BE DISMISSED .............24 VI. THE VERIZON DEFENDANTS ARE NOT SUBJECT TO PERSONAL
JURISDICTION IN THIS DISTRICT ..............................................................................25 A. Plaintiffs Must Show Continuous And Systematic Contacts With D.C. Or
Allege Injuries Arising From Specific Conduct With A Sufficient Connection To D.C ................................................................................................25
ii

Case 1:13-cv-00851-RJL Document 55 Filed 12/16/13 Page 5 of 41 B. Verizon Communications Inc. Has No Connection To D.C. And Therefore
Is Not Subject To General Or Specific Jurisdiction In D.C...................................27 C. Plaintiffs Have Not Alleged That Mr. McAdam Has Any Connection To
D.C .........................................................................................................................29 CONCLUSION ..............................................................................................................................30
iii

Case 1:13-cv-00851-RJL Document 55 Filed 12/16/13 Page 6 of 41

TABLE OF AUTHORITIES

CASES

Page(s)

Arizona v. Bowsher, 935 F.2d 332 (D.C. Cir. 1991) .................................................................................................15

Arizona v. United States, 132 S. Ct. 2492 (2012) .............................................................................................................14

Ashcroft v. Iqbal, 556 U.S. 662 (2009)...........................................................................................3, 16, 17, 18, 23

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)...........................................................................................3, 16, 17, 23, 24

Blackburn v. United States, 100 F.3d 1426 (9th Cir. 1996) .................................................................................................15

Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013) ...................................................................................................3, 22, 23

Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000).................................................................................................................16

Davis v. Michigan Department of Treasury, 489 U.S. 803 (1989).................................................................................................................15

Dong v. Smithsonian Institution, 125 F.3d 877 (D.C. Cir. 1997) .................................................................................................21

Geronimo v. Obama, 725 F. Supp. 2d 182 (D.D.C. 2010) .........................................................................................21

Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011) .......................................................................................................26, 27

Gorman v. Ameritrade Holding Corp., 293 F.3d 506 (D.C. Cir. 2002) ...........................................................................................26, 28

Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982) .................................................................................................22

Hubbard v. MySpace Inc., 788 F. Supp. 2d 319 (S.D.N.Y. 2011)......................................................................................11

iv

Case 1:13-cv-00851-RJL Document 55 Filed 12/16/13 Page 7 of 41
In re National Security Agency Telecommunications Records Litigation, 671 F.3d 881 (9th Cir. 2011) .................................................................................................6, 7
In re Papst Licensing GMBH & Co. KG Litigation, 585 F. Supp. 2d 32 (D.D.C. 2008) ...........................................................................................24
Janod, Inc. v. Echo Entertainment, Inc., 890 F. Supp. 2d 13 (D.D.C. 2012) ...........................................................................................28
Johns v. Newsmax Media Inc., 887 F. Supp. 2d 90 (D.D.C. 2012) ...........................................................................................28
Johnson v. Maryland, 245 U.S. 51 (1920)...................................................................................................................15
Joyner v. Sibley Memorial Hospital, 826 A.2d 362 (D.C. Ct. App. 2003).........................................................................................17
Khatib v. Alliance Bankshares Corp., 846 F. Supp. 2d 18 (D.D.C. 2012) ...........................................................................................29
Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).................................................................................................................21
Marshall v. Willner, No. 3:06CV-665-M, 2007 WL 2725971 (W.D. Ky. Sept. 14, 2007) ......................................12
Mayo v. United States, 319 U.S. 441 (1943).................................................................................................................15
Mazza v. Verizon Washington, DC, Inc., 852 F. Supp. 2d 28 (2012) .................................................................................................25, 29
McDaniel v. FEDITC LLC, 825 F. Supp. 2d 157 (D.D.C. 2011) .........................................................................................28
McKinney v. Caldera, 141 F. Supp. 2d 25 (D.D.C. 2001) ...........................................................................................21
Movsesian v. Victoria Versicherung AG, 670 F.3d 1067 (9th Cir. 2012) (en banc) .................................................................................14
Pelkey v. City of Presque Isle, 685 A.2d 429 (Me. 1996).........................................................................................................18
Perpich v. Department of Defense, 496 U.S. 334 (1990).................................................................................................................14
v

Case 1:13-cv-00851-RJL Document 55 Filed 12/16/13 Page 8 of 41
Perry ex rel. Perry v. Frederick Investment Corp., 509 F. Supp. 2d 11 (D.D.C. 2007) ...........................................................................................24
PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011) .............................................................................................................16
Russo v. White, 241 Va. 23 (1991) ....................................................................................................................19
Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009) .....................................................................................................14
Schmidt v. Ameritech Illinois, 329 Ill. App. 3d 1020 (2002) ...................................................................................................18
SEC v. Pacfic Bell, 704 F. Supp. 11 (D.D.C. 1989) ................................................................................................16
Sere v. Group Hospitalization, Inc., 443 A.2d 33 (D.C. Ct. App. 1982)...........................................................................................17
Shulman v. Group W Products, Inc., 18 Cal. 4th 200 (1998) .............................................................................................................20
Smith v. Maryland, 442 U.S. 735 (1979).................................................................................................................20
Stehney v. Perry, 101 F.3d 925 (3d Cir. 1996).....................................................................................................14
Tarble’s Case, 80 U.S. 397 (1871)...................................................................................................................14
Thacker v. City of Hyattsville, 762 A.2d 172 (Md. Spec. App. 2000)......................................................................................19
Union Oil Co. v. Minier, 437 F.2d 408 (9th Cir. 1970) ...................................................................................................15
United States v. Ferrara, 54 F.3d 825 (D.C. Cir. 1995) .............................................................................................25, 27
United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972) .................................................................................................14
Walsh v. Taylor, 689 N.W. 2d 506 (Mich. App. 2004) .......................................................................................18
vi

Case 1:13-cv-00851-RJL Document 55 Filed 12/16/13 Page 9 of 41
Wolf v. Regardie, 553 A.2d 1213 (D.C. App. 1989).............................................................................................19
Zelaya v. UNICCO Serv. Co., 587 F. Supp. 2d 277 (D.D.C. 2008) .........................................................................................24
Zschernig v. Miller, 389 U.S. 429 (1968).................................................................................................................14
STATUTES 5 U.S.C. § 702....................................................................................................................20, 22, 23 18 U.S.C. § 2511(2)(a)(ii) ...................................................................................................7, 11, 12 18 U.S.C. § 2707(e) ......................................................................................................................11 50 U.S.C. § 1805(h) .......................................................................................................................10 50 U.S.C. § 1861........................................................................................................................4, 10 50 U.S.C. § 1861(e) ...................................................................................................................2, 10 50 U.S.C. § 1885a ......................................................................................................1, 6, 7, 8, 9, 10 50 U.S.C. § 1885a(a)................................................................................................................6, 7, 8 50 U.S.C. § 1885a(c).....................................................................................................................1,9 50 U.S.C. § 1885a(d) .......................................................................................................................9 50 U.S.C. § 1885a(e)....................................................................................................................6, 8 D.C. Code § 13-334(a).............................................................................................................26, 28 D.C. Code § 13-422 ...........................................................................................................26, 27, 29 D.C. Code § 13-423(a)...................................................................................................................27 D.C. Code § 13-423(b)...................................................................................................................27 OTHER AUTHORITIES Fed. R. Civ. P. 4(k)(1)(A) ..............................................................................................................25 Fed. R. Civ. P. 8 ...............................................................................................................................3 Fed. R. Civ. P. 12(b)(2)..................................................................................................................25
vii

Case 1:13-cv-00851-RJL Document 55 Filed 12/16/13 Page 10 of 41 RESTATEMENT (SECOND) OF TORTS § 46 (1965) ..............................................................................17 RESTATEMENT (SECOND) OF TORTS § 46, cmt. d (1965) ..................................................................17 RESTATEMENT (SECOND) OF TORTS § 652B, cmt. c (1965)..............................................................20 RESTATEMENT (THIRD) OF AGENCY § 7.01, cmt. d (2013) ...............................................................24 S. Rep. No. 110-209.........................................................................................................................7
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Case 1:13-cv-00851-RJL Document 55 Filed 12/16/13 Page 11 of 41
INTRODUCTION Defendants Verizon Communications Inc. and its CEO Lowell C. McAdam (the “Verizon Defendants”) respectfully seek dismissal of the claims asserted against them in this action. Plaintiffs’ case is about the legality of an alleged government program. The only specific allegation against Verizon is that it purportedly complied with an order of the Foreign Intelligence Surveillance Court (“FISC”) directing it to provide certain assistance to the government. Not surprisingly, there is no basis for asserting claims against Verizon in those circumstances: Companies are required to comply with court orders and cannot be sued for allegedly doing so. In 2008, Congress enacted 50 U.S.C. § 1885a. That provision directs that claims against a telecommunications carrier (or one of its officers) for allegedly providing assistance to the government must be dismissed if the Attorney General or Deputy Attorney General certifies that the carrier provided the assistance pursuant to a FISC order or other specified legal process or did not, in fact, provide the assistance alleged. Where doing so is necessary to protect the national security of the United States, such a certification may be submitted to the district court for review “in camera and ex parte.” Id. § 1885a(c)(1). Here, the Deputy Attorney General has made the required certification. That alone provides ample basis to dismiss Plaintiffs’ claims against the Verizon Defendants. In addition to § 1885a, numerous statutory provisions make clear that a telecommunications provider cannot be held liable for providing assistance to the government pursuant to a court order. Plaintiffs’ core allegation against Verizon is that it complied with a court order. Yet, Plaintiffs themselves have acknowledged, as they must, that recipients of FISC orders compelling production of business records under the Foreign Intelligence Surveillance
1

Case 1:13-cv-00851-RJL Document 55 Filed 12/16/13 Page 12 of 41
Act (“FISA”) “are shielded from liability for complying with such orders, see 50 U.S.C. § 1861(e).” Dkt. No. 31 at 30. That is plainly correct under both § 1861(e) and other similar statutes. Plaintiffs’ effort to proceed against the Verizon Defendants in the face of this settled law is baseless.
Plaintiffs’ attempt to use state law to interfere with alleged national security programs of the federal government are foreclosed for additional reasons as well. As an initial matter, Plaintiffs’ state-law claims are preempted by federal law. The Constitution itself vests exclusive control over matters of intelligence gathering and national security to the federal government. Well-established principles of intergovernmental immunity also preclude state regulation of activities of the federal government. Finally, state-law claims seeking to hold Verizon liable for allegedly complying with the order of a federal court plainly conflict with federal law and thus cannot stand. Even apart from preemption, Plaintiffs’ state-law claims—for intentional infliction of emotional distress and “intrusion upon seclusion”—fail at the threshold because Plaintiffs have failed to allege facts sufficient to support the elements of their causes of action. Among other things, the Verizon Defendants’ alleged compliance with a court order does not constitute the type of outrageous conduct required to plead these claims.
Plaintiffs’ claims suffer from numerous other flaws as well. Plaintiffs assert claims against Verizon and its CEO under the Administrative Procedure Act (“APA”), but this Court has already concluded that other statutes preclude application of the APA to this case and, in any event, the APA creates a cause of action only against the government, not private parties. Although Plaintiffs’ claims in this case relate to the alleged disclosure of telephone call records, a few stray references in the second amended complaint mention alleged disclosures of communications contents. Even if those limited, vague, and conclusory allegations were meant
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to state a claim, they would be insufficient for two additional reasons: They do not satisfy the standing requirements articulated by the Supreme Court in Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), or the pleading standards of Federal Rule of Civil Procedure 8 under the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Plaintiffs’ claims against Verizon’s CEO must be dismissed because an officer of a company cannot be held liable solely by virtue of his position, which is all Plaintiffs allege here. Finally, there is no personal jurisdiction over Verizon Communications Inc. or Mr. McAdam in this district.
BACKGROUND In June of this year, Plaintiffs filed two lawsuits against the National Security Agency (“NSA”), the Department of Justice, President Obama, Attorney General Eric H. Holder, Jr., NSA Director Keith B. Alexander, Judge Roger Vinson of the FISC, and twelve different private companies (and their CEOs) following press reports about certain alleged activities by the NSA. The first lawsuit (“Klayman I”) arose out of press reports that the government had obtained an order from the FISC directing Verizon to produce to the NSA certain telephone call records. That lawsuit named Verizon Communications Inc. and its CEO as defendants. The second lawsuit (“Klayman II”) arose out of press reports about an alleged government program called “PRISM” and focused largely on allegations that the NSA had obtained access to certain internet communications data. Verizon is not a defendant in Klayman II. Plaintiffs filed the Klayman I lawsuit on June 6, 2013. Three days later, Plaintiffs filed an amended complaint. On November 23, 2013, Plaintiffs filed a second amended complaint (“SAC”). It is Plaintiffs’ second amended complaint in Klayman I that is at issue in this motion. That complaint alleges that “[t]he U.S. government … has obtained a top secret court order that
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directs Verizon to turn over the telephone records of over one hundred million Americans to the

NSA on an ongoing daily basis.” SAC ¶ 25. Specifically, Plaintiffs allege that on April 25,

2013 Judge Vinson of the FISC issued an order pursuant to 50 U.S.C. § 1861 “directing Verizon

to turn over, on an ongoing daily basis, ... [a]ll call detail records or telephony metadata created

by Verizon for communications (i) between the United States and abroad; or (ii) wholly within

the United States, including local telephone calls.” Id. ¶ 2 (internal quotation marks omitted);

see also id. ¶¶ 26-27. According to the second amended complaint, “Defendant Vinson’s Order

requires Verizon to turn over originating and terminating telephone numbers as well as the location, time, and duration of the calls.” Id. ¶ 28.1

Plaintiff Larry Klayman alleges that he is “an individual and attorney who is a subscriber

and user of Verizon Wireless at all material times.” SAC ¶ 9. The second amended complaint

alleges, “[o]n information and belief,” that “Defendants have accessed the records pertaining to

Plaintiff Klayman pursuant to the Order issued by Defendant Vinson in addition to accessing his

telephone conversations.” Id. Plaintiffs Charles and Mary Ann Strange are the parents of

Michael Strange, a Navy SEAL who was killed in Afghanistan. Id. ¶ 10. The second amended

complaint asserts, “[o]n information and belief,” that “Defendants have accessed Plaintiffs

Charles and Mary Ann Strange’s phone records.” Id.

Based on these allegations, Plaintiffs assert eight claims for relief naming different

defendants. Plaintiffs allege violations of the First, Fourth, and Fifth Amendments to the U.S.

Constitution against the government defendants. See SAC ¶¶ 49-69 (Claims 1-3). The Verizon

1

As this Court noted in its recent preliminary injunction decision, “Klayman I concerns

only the collection and analysis of phone record data.” Dkt. No. 48 at 4 n.6. The second

amended complaint contains a few stray references to alleged disclosures of telephone call

contents. See, e.g., SAC ¶¶ 7, 9, 39, 79. But the complaint makes no specific allegations

regarding the disclosure of call contents and does not provide any basis for the vague and

conclusory allegations it does contain.

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Defendants are not named in these counts. Plaintiffs also assert state-law claims for intentional infliction of emotional distress and “[i]ntrusion [u]pon [s]eclusion” against all defendants, including the Verizon Defendants. See id. ¶¶ 70-80 (Claims 4 & 5). Plaintiffs assert two claims under the Electronic Communications Privacy Act (“ECPA”) against the Verizon Defendants. Id. ¶¶ 81-95 (Claims 6 & 7). These claims are asserted against just the Verizon Defendants. Finally, Plaintiffs assert a claim under the APA against all defendants, including the Verizon Defendants. Id. ¶¶ 96-99 (Claim 8).
The second amended complaint seeks to recover damages “in excess of $3 billion U.S. dollars.” See id. ¶ 100. It also seeks declaratory, equitable, and injunctive relief in a variety of forms: (1) the entry of a cease and desist order, (2) the return to Verizon of the telephone records allegedly at issue, (3) “a full disclosure and a complete accounting of what each Defendant and government agencies as a whole have done,” and (4) that the allegedly “egregious misconduct of Judge Roger Vinson be forwarded to judicial and other law enforcement authorities for appropriate disciplinary and other appropriate legal proceedings for violating the law and his oath of office to protect and to uphold the U.S. Constitution.” Id. ¶ 101. Plaintiffs seek relief on behalf of themselves and a class of “[a]ll American citizens in the United States and overseas who are current subscribers of Defendant Verizon’s telephone services at any material time, including but not limited to, April 25, 2013 to July 19, 2013.” Id. ¶ 38.
The second amended complaint asserts venue in this district but does not allege a factual basis for finding personal jurisdiction here. It alleges that Verizon “is a Delaware corporation with its principal place of business in New York,” id. ¶ 18, and it contains no jurisdictional allegations with respect to Mr. McAdam. Finally, the second amended complaint alleges no basis for naming Verizon’s CEO Lowell C. McAdam as a defendant. It asserts that Mr.
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McAdam “is the Chief Executive Officer of Verizon Communications,” id. ¶ 16, but otherwise

contains no specific allegations with respect to Mr. McAdam.

ARGUMENT

I.

THE VERIZON DEFENDANTS ARE IMMUNE FROM SUIT

Whether or not Plaintiffs’ claims against the government are ultimately successful, their

claims against the Verizon Defendants for allegedly complying with a FISC order must be

dismissed because the Verizon Defendants are immune from suit under multiple provisions of

federal law.

A. Plaintiffs’ Claims Against The Verizon Defendants Must Be Dismissed Under The FISA Amendments Act Of 2008
Plaintiffs’ claims against the Verizon Defendants must be dismissed under 50 U.S.C.

§ 1885a, which provides that a civil action against a company or individual “for providing

assistance to an element of the intelligence community” must be dismissed if the Attorney

General or Deputy Attorney General certifies to the district court that any assistance provided

was pursuant to specified types of legal process (such as an order of the FISC) or that the defendant “did not provide the alleged assistance.” 50 U.S.C. § 1885a(a) & (e).2

Congress enacted § 1885a in the FISA Amendments Act of 2008, Pub. L. No. 110-261,

122 Stat. 2436, as a response to litigation against telecommunications carriers for allegedly

providing assistance to the government in the wake of the attacks of September 11. See In re

National Sec. Agency Telecomms. Records Litig., 671 F.3d 881, 890-892 (9th Cir. 2011)

(affirming dismissal of claims and rejecting constitutional challenges to § 1885a). As the Ninth

2

To the extent the Court concludes that consideration of the Deputy Attorney General’s

certification is more appropriate on summary judgment, the Verizon Defendants request that the

present motion be treated as a motion for summary judgment in this respect.

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Circuit noted, the statute was meant to ensure that private parties would remain willing to
cooperate with important government national security programs:
[The provision] “reflect[ed] the Committee’s belief that there is a strong national interest in addressing the extent to which the burden of litigation over the legality of surveillance should fall on private parties.” [S. Rep. No. 110-209] at 8. The Committee noted the “importance of the private sector in security activities.” Id. at 5. It emphasized that electronic intelligence gathering depends in great part on cooperation from private companies, id. at 9, and that if litigation were allowed to proceed against persons allegedly assisting in such activities, “the private sector might be unwilling to cooperate with lawful Government requests in the future.” Id. at 10. The “possible reduction in intelligence that might result ... is simply unacceptable for the safety of our Nation.” Id.
Id. at 892-893.
Section 1885a “dovetails with an existing comprehensive statutory framework that grants
the Executive Branch authority to enlist telecommunications companies for intelligence
gathering, to protect those companies from suit, and to keep their efforts secret.” In re National
Sec. Agency Telecomms. Records Litig., 671 F.3d at 891. The provision establishes “a
procedural mechanism [to] give courts an appropriate role in assessing statutory immunity
provisions that would otherwise be subject to the state secrets privilege.” S. Rep. No. 110-209,
at 8. Specifically, § 1885a(a) states:
Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that—
(1) any assistance by that person was provided pursuant to an order of the court established under section 1803(a) of this title directing such assistance;
(2) any assistance by that person was provided pursuant to a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18;
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(3) any assistance by that person was provided pursuant to a directive under section 1802(a)(4), 1805b(e), as added by section 2 of the Protect America Act of 2007 (Public Law 110–55), or 1881a(h) of this title directing such assistance;
(4) in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was—
(A) in connection with an intelligence activity involving communications that was—
(i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and
(ii) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and
(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was—
(i) authorized by the President; and
(ii) determined to be lawful; or
(5) the person did not provide the alleged assistance.
50 U.S.C. § 1885a(a). The statute specifies that the “authority and duties of the Attorney
General under this section shall be performed by the Attorney General (or Acting Attorney
General) or the Deputy Attorney General.” Id. § 1885a(e).
A certification under § 1885a(a) is subject to review by the district court. The statute
provides: “A certification under subsection (a) shall be given effect unless the court finds that
such certification is not supported by substantial evidence provided to the court pursuant to this
section.” Id. § 1885a(b)(1). In order to safeguard classified information, § 1885a permits the
Attorney General or Deputy Attorney General to file a certification under seal. If the Attorney 8

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General or Deputy Attorney General files a declaration indicating that disclosure of the certification and any supplemental materials supporting it “would harm the national security of the United States,” the district court must:
(1) review such certification and supplemental materials in camera and ex parte; and (2) limit any public disclosure concerning such certification and the supplemental materials, including any public order following such in camera and ex parte review, to a statement as to whether the case is dismissed and a description of the legal standards that govern the order, without disclosing the paragraph of subsection (a) that is the basis for the certification. Id. § 1885a(c). Section 1885a grants private parties a role in proceedings regarding a certification, but that role is limited where a certification has been filed under seal and is subject to in camera review by the district court. A private party may “submit any relevant court order, certification, written request, or directive” to the court. Id. § 1885a(d). Private parties may “participate in the briefing or argument of any legal issue,” but “only to the extent that such participation does not require the disclosure of classified information to such party.” Id. In this case, the Deputy Attorney General has filed a certification under § 1885a with respect to the Verizon Defendants. See Public Certification of the Deputy Attorney General of the United States (filed Dec. 16, 2013). Pursuant to § 1885a(c), a classified version of the certification has been submitted under seal for the Court’s review in camera and ex parte. See Not. by Def. United States Dep’t of Justice of the Lodging of the Classified Certification and Declaration of the Deputy Attorney General of the United States for Review In Camera and Ex Parte (filed Dec. 16, 2013). Accordingly, upon the Court’s in camera examination of the Deputy Attorney General’s certification and supporting evidence, Plaintiffs’ claims against the Verizon Defendants must be dismissed.
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B. Plaintiffs’ Claims Against The Verizon Defendants Also Fail Under Other Statutory Provisions
Plaintiffs’ claims against the Verizon Defendants are foreclosed by a host of other statutory provisions as well. Plaintiffs seek to hold the Verizon Defendants liable for allegedly complying with an order of the FISC directing Verizon to disclose certain telephone call records to the NSA. See SAC ¶¶ 2, 25-26, 28. But numerous federal statutes in addition to 50 U.S.C. § 1885a protect private parties from suit for providing assistance to the government at the direction of a court order, a point Plaintiffs concede.
FISA. Plaintiffs challenge Verizon’s alleged compliance with an order of the FISC compelling disclosure of telephone call records pursuant to 50 U.S.C. § 1861. That section, however, expressly provides that a party cannot be held liable for complying with such an order. Section 1861(e) states that “a person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production.” Because Plaintiffs allege that Verizon produced call records “under an order pursuant to [§ 1861],” the Verizon Defendants “shall not be liable to any other person for such production.” Plaintiffs themselves concede that § 1861(e) shields recipients of FISC orders from liability. In their reply brief in support of their motion for a preliminary injunction, Plaintiffs argued:
Indeed, “no recipient of any Section 215 Order has challenged the legality of such an Order.” See 2013 FISC Opinion at 15– 16. That is perhaps because recipients are shielded from liability for complying with such orders, see 50 U.S.C. § 1861(e), and thus their interests diverge from those of the orders’ subjects. Dkt. No. 31 at 30 (emphasis added).3

3

Cf. 50 U.S.C. § 1805(h) (“No cause of action shall lie in any court against any provider of

a wire or electronic communication service, landlord, custodian, or other person (including any

officer, employee, agent, or other specified person thereof) that furnishes any information,

facilities, or technical assistance in accordance with a court order or request for emergency

assistance under this chapter [the FISA] for electronic surveillance or physical search.”).

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ECPA. ECPA also makes clear that a telecommunications provider cannot be held liable
for supplying information to government entities who have obtained a warrant or court order.
Section 2707(e) states that “[a] good faith reliance on a court warrant or order … is a complete
defense to any civil or criminal action brought under this chapter or any other law.” Id.
§ 2707(e)(1); see also id. § 2703(e) (“No cause of action shall lie in any court against any
provider of wire or electronic communication service, its officers, employees, agents, or other
specified persons for providing information, facilities, or assistance in accordance with the terms
of a court order, warrant, subpoena, statutory authorization, or certification under this chapter.”);
Hubbard v. MySpace Inc., 788 F. Supp. 2d 319, 321-326 (S.D.N.Y. 2011) (granting the
defendant’s motion to dismiss on § 2703(e) grounds where the defendant produced information
and records related to plaintiff’s account in response to a warrant).
The Wiretap Act. Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
more commonly known as the Wiretap Act, contains another immunity provision that bars
Plaintiffs’ claims. Section 2511(2)(a)(ii) of title 18 states:
Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—
(A) a court order directing such assistance or a court order pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978 signed by the authorizing judge[.]
Section 2511(2)(a)(ii) then provides that:
No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents,
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landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or certification under this chapter.

Here, Plaintiffs allege that Verizon is a “provider of wire or electronic communication

service[s],” see SAC ¶¶ 18, 91, and that it “provid[ed] information” to the NSA after having been

“provided with … a [FISC] court order directing such assistance,” see id. ¶¶ 2, 25, 26, 28. No

cause of action can lie against Verizon in these circumstances. See, e.g., Marshall v. Willner,

No. 3:06CV-665-M, 2007 WL 2725971, at *4 (W.D. Ky. Sept. 14, 2007) (“Subsection

2511(2)(a)(ii) exempts Defendants from liability if, as Plaintiff alleges, they were presented with

[an] order from the FBI permitting the wiretap, regardless of whether the order was obtained in

violation of the law. … To hold otherwise would place service providers, like Defendants, and

their employees in the precarious situation of risking potential liability for following what appear

to be valid court orders.”)

* * *

Because numerous federal statutes render the Verizon Defendants immune from suit,

Plaintiffs’ claims against them—under federal and state law—must be dismissed.

II.

PLAINTIFFS’ STATE-LAW CLAIMS MUST BE DISMISSED

Plaintiffs’ state-law claims fail for other reasons as well: They are preempted by federal

law and are insufficiently pled even as a matter of state law.

A. Plaintiffs’ State-Law Claims Are Preempted Plaintiffs’ state-law claims are preempted in at least three respects. First, they seek to

regulate alleged conduct in an area over which the federal government has exclusive control: the

gathering of intelligence for national security purposes. Second, they directly and impermissibly

attempt to regulate the operations of the federal government, in violation of the

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intergovernmental immunity doctrine. Finally, they impose state-law requirements on Verizon that would irreconcilably conflict with Verizon’s obligations to comply with an alleged federal court order.
1. The Constitution Preempts The Field Of Matters Pertaining To National Security And Military Intelligence Gathering
Plaintiffs’ state-law claims—which they bring against all Defendants—seek to regulate directly the manner in which the NSA allegedly gathers intelligence for national security purposes. The Constitution entrusts such matters exclusively to the federal government, leaving no room for state regulation. Accordingly, Plaintiffs’ state-law claims are barred.
Plaintiffs’ allegations make clear that they are attempting to use state law to regulate the alleged intelligence-gathering activities of the NSA. Plaintiffs state, in the second paragraph of their second amended complaint, that “[t]his case challenges the legality of Defendants’ participation and conduct in a secret and illegal government scheme to intercept and analyze vast quantities of domestic telephonic communications.” SAC ¶ 2 (emphasis added). According to the second amended complaint, that allegedly unlawful scheme “was authorized and ordered by the President and primarily undertaken by the NSA.” Id. ¶ 5; see also id. ¶ 25 (“The NSA began a classified surveillance program to intercept the telephone communications of persons inside the United States.”). Consistent with those allegations, Plaintiffs charge Verizon with improperly disclosing their information to the NSA. Id. ¶¶ 2, 26-27, 28. Plaintiffs seek, among other things, an order requiring the NSA to cease and desist any activities undertaken in connection with the alleged Telephony Metadata Program and to return Plaintiffs’ phone records to Verizon. Id. ¶¶ 76, 80, 101.
States, however, have no power to regulate in the area of national security. Rather, the Constitution vests “plenary and exclusive” control over national security and foreign policy in
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the federal government. Tarble’s Case, 80 U.S. 397, 408 (1871); see also Perpich v. Dep’t of Def., 496 U.S. 334, 353 (1990) (“[S]everal constitutional provisions commit matters of foreign policy and military affairs to the exclusive control of the National Government.”) (emphasis added); United States v. Marchetti, 466 F.2d 1309, 1315 (4th Cir. 1972) (“Gathering intelligence information” is “within the President’s constitutional responsibility for the security of the Nation as the Chief Executive and as Commander in Chief of our Armed forces.”). Accordingly, the Constitution preempts the application of state law in the entire field of intelligence gathering for national defense. See Zschernig v. Miller, 389 U.S. 429, 441 (1968); Stehney v. Perry, 101 F.3d 925, 939 (3d Cir. 1996) (concluding that New Jersey was preempted on the ground that “[w]ere the courts to give effect to the New Jersey … law in this context, it would … prevent any New Jersey employer from serving as an NSA contractor, an impermissible state interference with exclusive federal responsibility in matters of national security.”); see also Saleh v. Titan Corp., 580 F.3d 1, 10 (D.C. Cir. 2009) (plaintiffs’ state-law claims against military contractors were preempted because “states … constitutionally and traditionally have no involvement in federal wartime policymaking”). State law is preempted even if it does not conflict with existing federal law. See Arizona v. United States, 132 S. Ct. 2492, 2502 (2012) (Where federal law occupies the field, “even complementary state regulation is impermissible.”); Movsesian v. Victoria Versicherung AG, 670 F.3d 1067, 1072 (9th Cir. 2012) (en banc) (holding that “even in the absence of any express federal policy, a state law still may be preempted … if it intrudes on the field of foreign affairs”).
Because Plaintiffs’ state-law claims seek to regulate alleged conduct in a domain over which the federal government has exclusive power, those claims are preempted. That is true whether or not Plaintiffs’ state-law claims conflict with federal law.
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2. Plaintiffs’ State-law Claims Are Also Barred By The Intergovernmental Immunity Doctrine
Separately, the Supremacy Clause commands that “the activities of the Federal Government are free from regulation by any state.” Mayo v. United States, 319 U.S. 441, 445 (1943). This “intergovernmental immunity component of Supremacy Clause jurisprudence” means that “states may not directly regulate the federal government’s operations or property.” Arizona v. Bowsher, 935 F.2d 332, 334 (D.C. Cir. 1991). Yet, as discussed above, that is exactly what the Plaintiffs’ state-law claims seek to do: to regulate the federal government’s alleged intelligence-collections operations. The Supremacy Clause does not allow those state-law claims to proceed. See Mayo, 319 U.S. at 447 (invalidating Florida labeling requirement as applied to federal government operations); Johnson v. Maryland, 245 U.S. 51 (1920) (concluding that Maryland could not enforce a particular motor vehicle law against a postal worker performing his duties and noting that “even the most unquestionable and most universally applicable state laws” may not “interrupt the acts of the general government itself”); Blackburn v. United States, 100 F.3d 1426, 1435 (9th Cir. 1996) (intergovernmental immunity barred California from applying its Resort Act to operations at Yosemite National Park).4
3. Plaintiffs’ State-Law Claims Also Conflict With Federal Law Plaintiffs’ state-law claims against Verizon are also preempted because they conflict with federal law. Verizon simply could not comply with both a purported state-law duty not to disclose telephone call records to the NSA and its obligation under the alleged federal court

4

The intergovernmental immunity doctrine applies whether the federal government takes

an action itself or acts through a private party. See Davis v. Michigan Dep’t of Treasury, 489

U.S. 803, 814 (1989); Union Oil Co. v. Minier, 437 F.2d 408, 411 (9th Cir. 1970) (State law

must “give way” when it interferes with the federal government’s authority, regardless of

“whether the United States exercises its rights directly or through the use of private persons”).

The intergovernmental immunity doctrine thus bars Plaintiffs’ claims against Verizon.

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order requiring it to disclose that information. Under the Supremacy Clause, “[w]here state and federal law directly conflict, state law must give way.” PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2577 (2011) (internal quotation marks omitted); see also Crosby v. National Foreign Trade Council, 530 U.S. 363, 372 (2000) (“[S]tate law is naturally preempted to the extent of any conflict with a federal statute”). “[S]tate and federal law conflict where it is impossible for a private party to comply with both state and federal requirements.” PLIVA, 131 S. Ct. at 2577 (quotation marks and citation omitted). Such impossibility exists here.
Plaintiffs allege that Verizon provided their telephone records to the NSA after the FISC issued an order “directing” Verizon to do so. SAC ¶ 2; see also id. ¶¶ 25-27, 28. Thus, according to Plaintiffs’ allegations, a federal court order, issued pursuant to federal law, required Verizon to disclose the call records at issue. Plaintiffs’ state-law claims, however, seek to hold Verizon liable under state law for this alleged conduct. In the face of that irreconcilable conflict, “state law must give way.” PLIVA, 131 S. Ct. at 2577. Plaintiffs’ state-law claims are therefore preempted. See id. at 2577-2578 (holding that state failure-to-warn claims were preempted by federal law where “it was not lawful under federal law for the [defendants] to do what state law required of them”); SEC v. Pacfic Bell, 704 F. Supp. 11, 15 (D.D.C. 1989) (concluding that a California law was preempted where it would have prohibited the disclosure of telephone records whose disclosure was authorized by federal law).
B. Plaintiffs’ State-Law Claims Otherwise Fail As A Matter Of Law Plaintiffs’ state-law claims also fail because Plaintiffs have not pled facts sufficient to meet the elements of each claim. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A complaint with only “‘labels and
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conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Likewise, “a complaint [will not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancements.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). “Factual allegations must be enough to raise a right to relief above a speculative level.” Twombly, 550 U.S. at 555. Here, Plaintiffs cannot meet these standards.
Intentional Infliction of Emotional Distress. Plaintiffs’ first state-law claim is for intentional infliction of emotional distress (“IIED”). The elements of that claim are: “(1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress.” See Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C. Ct. App. 1982); see also Restatement (Second) of Torts § 46 (1965). Plaintiffs have not alleged facts demonstrating any of these elements.
First, Plaintiffs fail plausibly to allege that the Verizon Defendants engaged in extreme and outrageous conduct. A plaintiff must establish that the defendant’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Joyner v. Sibley Memorial Hosp., 826 A.2d 362, 373 (D.C. Ct. App. 2003); Restatement (Second) of Torts § 46, cmt. d (1965) (It is not “enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.”). Here, Plaintiffs allege that Verizon turned over telephone call records to a government agency only after being ordered to do so by a FISC judge. SAC ¶ 2. Actions taken pursuant to a court order or otherwise
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authorized by law do not qualify as outrageous, extreme, or highly offensive. See, e.g., Walsh v. Taylor, 689 N.W. 2d 506, 517-518 (Mich. App. 2004) (IIED claim against arresting officer failed “as a matter of law” where the arresting officer relied on an arrest warrant obtained with “presumptively credible information”); Schmidt v. Ameritech Illinois, 329 Ill. App. 3d 1020, 1031 (2002) (telephone company’s review of its employee’s personal telephone records was not highly offensive because the company’s actions were authorized by federal law); Pelkey v. City of Presque Isle, 685 A.2d 429, 431-432 (Me. 1996) (warrantless search of a restaurant by fire inspectors did not qualify as “extreme and outrageous” conduct where the search was authorized by a state statute).
Second, the amended complaint does not plausibly allege that the Verizon Defendants intended to cause its customers severe emotional distress. Plaintiffs allege in conclusory fashion that the defendants “intended to cause Plaintiffs and members of the Class emotional distress and physical harm and acted in reckless disregard.” SAC ¶ 72. They offer no factual allegations to support this counterintuitive—and wholly conclusory—assertion. Plaintiffs are challenging what they themselves describe as a “secret” government surveillance program. See id. ¶ 2. Indeed, they allege that “The Guardian posted a classified order from the secretive Foreign Intelligence Surveillance Court.” Id. (emphasis added). Plaintiffs assert without explanation that the “only purpose of [defendants’] outrageous and illegal conduct is to intimidate American citizens and keep them from challenging a tyrannical administration and government presently controlled by the Defendants, a government which seeks to control virtually every aspect of Plaintiffs, members of the Class, and other American’s lives, to further its own, and Defendants[’] ‘agendas.’” SAC ¶ 72. This allegation is facially implausible and entirely unsupported, particularly as applied to the Verizon Defendants. See Iqbal, 556 U.S. at 678.
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Third, Plaintiffs have failed adequately to allege that they suffered “severe emotional distress.” Although the second amended complaint alleges in a conclusory manner that Plaintiffs suffered “severe emotional distress and physical harm,” SAC ¶¶ 74, 75, it provides no support whatsoever for this contention. It does not allege that Plaintiffs experienced any particular symptoms, that Plaintiffs sought medical treatment, or that any symptoms Plaintiffs suffered had any concrete impact on their lives. Plaintiffs’ bare assertion that they suffered “severe emotional distress” is insufficient to state a plausible claim. See, e.g., Russo v. White, 241 Va. 23, 28 (1991) (granting motion to dismiss IIED claim where plaintiff alleged that “she was nervous, could not sleep, experienced stress and its physical symptoms, withdrew from activities, and was unable to concentrate at work,” but failed to allege that, for example, “she had any objective physical injury caused by the stress, that she sought medical attention, that she was confined at home or in a hospital, or that she lost income.”); Thacker v. City of Hyattsville, 762 A.2d 172, 197 (Md. Spec. App. 2000) (affirming grant of summary judgment against the plaintiff where the evidence showed that he continued to work after the alleged incident and where the plaintiff presented no evidence that he could not continue with his normal life activities or that he sought any professional treatment for his alleged emotional distress).
Intrusion Upon Seclusion. Plaintiffs’ second state-law claim is for intrusion upon seclusion. That tort has three elements: (1) an invasion or interference . . . ; (2) into a place where the plaintiff has secluded himself, or into his private or secret concerns . . . ; (3) that would be highly offensive to an ordinary, reasonable person . . . .” Wolf v. Regardie, 553 A.2d 1213, 1217 (D.C. App. 1989). In addition, the plaintiff must demonstrate that the intrusion caused emotional distress. Id. Plaintiffs also have failed adequately to allege these elements.
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For reasons noted above, Plaintiffs cannot demonstrate that Verizon’s alleged compliance

with a court order directing it to disclose certain call information to a government agency is so

offensive as to give rise to a claim. As also explained above, Plaintiffs have failed sufficiently to

allege that they experienced “emotional distress” as a result of the alleged intrusion. Finally,

Plaintiffs have not alleged a cognizable intrusion. The tort of intrusion upon seclusion “is proven

only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the

place, conversation or data source.” Shulman v. Group W Prods., Inc., 18 Cal. 4th 200, 232

(1998) (citing Restatement (Second) of Torts § 652B, cmt. c). The Supreme Court has held that

parties do not have a reasonable expectation of privacy in their telephone calling records. See

Smith v. Maryland, 442 U.S. 735, 735 (1979). We recognize that this Court has recently

addressed this issue in the context of the claims against the government, see Dkt. No. 48 at 43-

56, but we respectfully submit that that Plaintiffs have not alleged facts sufficient to demonstrate

that the Verizon Defendants alleged disclosure of telephone call records to the government as

required by court order violated Plaintiffs’ reasonable expectations of privacy under Smith or

otherwise. In any event, as noted above, Plaintiffs fail to allege the other elements of this claim.

III.

PLAINTIFFS’ APA CLAIM AGAINST THE VERIZON DEFENDANTS MUST

BE DISMISSED

Plaintiffs’ second amended complaint purports to assert a claim against the Verizon

Defendants under the Administrative Procedure Act. SAC ¶¶ 96-99. That claim fails as a matter

of law. As an initial matter, this Court has concluded that it lacks jurisdiction to hear Plaintiffs’

APA claim. See Dkt. No. 48 at 5, 23-31. In any event, the APA applies only to federal

government “agenc[ies].” 5 U.S.C. § 702 (providing right to judicial review to those injured

“because of agency action” (emphasis added)); id. § 704 (“Agency action made reviewable by

statute and final agency action for which there is no other adequate remedy in a court are subject 20

Case 1:13-cv-00851-RJL Document 55 Filed 12/16/13 Page 31 of 41

to judicial review.”); see also Geronimo v. Obama, 725 F. Supp. 2d 182, 186 (D.D.C. 2010)

(“[F]or a claim to arise under the APA, an individual must allege action on the part of an

agency[.]”); Lujan v. National Wildlife Fed’n, 497 U.S. 871, 882 (1990); Dkt. No. 48 at 24

(“[T]he APA permits such aggrieved persons to bring suit against the United States and its

officers . . . .”). Here, of course, neither Verizon Communications Inc. nor Mr. McAdam is a

federal “agency” or officer. Accordingly, the Verizon Defendants are not covered by the APA,

and Plaintiffs’ APA claim against the Verizon Defendants necessarily fails as a matter of law.

See McKinney v. Caldera, 141 F. Supp. 2d 25, 34-35 (D.D.C. 2001) (granting motion to dismiss

the plaintiff’s APA claim against the Judge Advocate General after concluding that the JAG was

“not an ‘agency’ for the purposes of the APA”); see also Dong v. Smithsonian Inst., 125 F.3d

877, 882 (D.C. Cir. 1997) (holding in case under the Privacy Act that “private organization[s]”

are not authorities of the U.S. government).

IV.

PLAINTIFFS’ VAGUE AND CURSORY ALLEGATIONS REGARDING

ALLEGED DISCLOSURES OF CALL CONTENTS ARE INSUFFICIENT

The only specific claims Plaintiffs assert against Verizon concern its alleged disclosure of

telephone call records to the NSA pursuant to a FISC order. See Dkt. No. 48 at 4 n.6 (“Klayman

I concerns only the collection and analysis of phone record data.”). At various points, however,

the second amended complaint contains stray allegations that Verizon disclosed the contents of

Plaintiffs’ communications. See SAC ¶¶ 7, 9, 39, 79. Even if these unsupported and conclusory

allegations were meant to support claims against Verizon for alleged disclosures of

communications contents, they would be insufficient: They fail to establish standing and fail to

state a plausible claim for relief.

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A. Plaintiffs Have Not Pled Facts Sufficient To Demonstrate Their Standing Any claims by Plaintiffs relating to alleged disclosures of communications contents

would fail for lack standing under Clapper v. Amnesty International USA, 133 S. Ct. 1138

(2013). To establish standing to sue in federal court, Plaintiffs must demonstrate that they have

suffered an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the

challenged action; and redressable by a favorable ruling.” Clapper, 133 S. Ct. at 1147. To meet

this injury-in-fact requirement, a plaintiff must offer more than mere speculation that he or she

has been targeted by a government surveillance program. See id. at 1148.

In Clapper, for example, the Supreme Court held that the plaintiffs lacked standing to

challenge Section 702 of the FISA, which authorizes the Attorney General to conduct

surveillance of foreign nationals located abroad. Id. The plaintiffs—a group of “attorneys, and

human rights, labor, legal, and media organizations”—asserted that they had been injured

because “there [was] an objectively reasonable likelihood that their communications with their

foreign contacts will be intercepted under [§ 702.]” Id. at 1145, 1147. The Court rejected this

reasoning, holding that the plaintiffs “ha[d] no actual knowledge of the Government’s …

targeting practices” and could “merely speculate and make assumptions about whether their

communications with their foreign contacts will be acquired under [§ 702].” Id. at 1148; see also id. at 1149.5

Like the plaintiffs in Clapper, Plaintiffs (at most) offer nothing more than speculation

that their communications contents were disclosed to the government. Plaintiffs’ cryptic

5

Similarly, in Halkin v. Helms, 690 F.2d 977, 998 (D.C. Cir. 1982), the D.C. Circuit held

that plaintiffs seeking to challenge alleged NSA surveillance lacked standing because they could

not prove that their conversations had been intercepted: “We hold that appellants’ inability to

adduce proof of actual acquisition of their communications now prevents them from stating a

claim cognizable in the federal courts. In particular, we find appellants incapable of making the

showing necessary to establish their standing to seek relief.”

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allegations—“[o]n information and belief”—that Verizon disclosed the contents of their communications, id. ¶¶ 9, 79, are wholly speculative. Plaintiffs allege no factual basis—detailed or otherwise—for their assertion, made in passing, that Verizon allegedly disclosed the contents of their communications. Under Clapper, speculative and conclusory assertions of this type are inadequate to demonstrate standing. See 133 S. Ct. at 1148-1150; cf. Dkt. No. 48 at 4 n.6 (“[T]o the extent plaintiffs challenge the Government’s targeted collection of internet data content pursuant to Section 702 (50 U.S.C. § 1881a) under the so-called ‘PRISM’ program, which targets non-U.S. persons located outside the U.S., plaintiffs have not alleged sufficient facts to show that the NSA has targeted any of their communications.”).
B. Plaintiffs Fail To State A Plausible Claim For Relief Plaintiffs’ limited assertions regarding alleged disclosures of communications contents are also insufficient to satisfy general pleading standards. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A complaint with only “‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Likewise, “a complaint [will not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancements.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). “Factual allegations must be enough to raise a right to relief above a speculative level.” Twombly, 550 U.S. at 555. Here, as noted, Plaintiffs provide nothing beyond the naked assertion that, “on information and belief,” Verizon has disclosed the contents of their communications. See SAC ¶¶ 9, 79. Such unadorned statements, “devoid of further factual enhancements,” Iqbal, 556 U.S.
23

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at 678, are insufficient to survive a motion to dismiss. See, e.g., In re Papst Licensing GMBH &

Co. KG Litig., 585 F. Supp. 2d 32, 35 (D.D.C. 2008) (unadorned allegation that “upon

information and belief” the defendant had sold products that infringed the plaintiff’s patent is not

sufficient to state a claim for patent infringement under Twombly); Zelaya v. UNICCO Serv. Co.,

587 F. Supp. 2d 277, 287-288 (D.D.C. 2008) (Plaintiff failed to state a claim for relief where she

offered only a “nebulous assertion of information and belief [that] defendants UNICCO and

Alarcon made false and defamatory statements” about her and “fail[ed] to offer any information

or facts…to inform this belief”). Accordingly, to the extent Plaintiffs are attempting to assert

claims based on Verizon’s alleged disclosure of the contents of Plaintiffs’ communications,

Plaintiffs have failed to state a plausible claim for relief.

V.

PLAINTIFFS’ CLAIMS AGAINST MR. McADAM MUST BE DISMISSED

Plaintiffs have asserted claims against both Verizon Communications Inc. and its CEO

Lowell C. McAdam. Plaintiffs’ claims against Mr. McAdam are foreclosed not only for all of

the reasons set forth above, but also because Plaintiffs do not allege that Mr. McAdam personally

did anything at all.

A corporate officer cannot be held personally liable for torts allegedly committed by the

corporation’s employees “based merely on the officer’s position in the corporation.” Perry ex

rel. Perry v. Frederick Inv. Corp., 509 F. Supp. 2d 11, 18 (D.D.C. 2007); Restatement (Third) of

Agency § 7.01, cmt. d (2013) (“The fact that an agent occupies a superior position within an

organization is in itself immaterial to whether the agent is subject to tort liability. An agent is

not subject to liability on the basis of the agent’s status within an organization.”). Personal

liability “must be premised upon a corporate officer’s meaningful participation in the wrongful

acts.” Perry, 509 F. Supp. 2d at 18.

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The only allegation that Plaintiffs level against Mr. McAdam is that he is the Chief

Executive Officer of Verizon. See SAC ¶ 16. They do not assert that Mr. McAdam participated

in the conduct alleged. There is thus no basis for naming Mr. McAdam as a defendant in this

suit, and the claims against him must be dismissed.

VI.

THE VERIZON DEFENDANTS ARE NOT SUBJECT TO PERSONAL

JURISDICTION IN THIS DISTRICT

Finally, Plaintiffs’ claims against the Verizon Defendants must be dismissed for lack of

personal jurisdiction. “On a motion to dismiss pursuant to Rule 12(b)(2), the plaintiff bears the

burden of making a prima facie showing that the court has personal jurisdiction over each

defendant.” Mazza v. Verizon Washington, DC, Inc., 852 F. Supp. 2d 28, 32 (2012). The

plaintiff “cannot rest on bare allegations or conclusory statements,” but rather “must allege

specific facts connecting [each] defendant with the forum.” Id. (internal quotation marks

omitted). Here, Plaintiffs have not met that burden. Just last year, another judge of this Court

concluded that Verizon Communications Inc., a holding company, is not subject to personal

jurisdiction in this forum. See id. Plaintiffs’ second amended complaint provides no basis to

depart from that conclusion or to subject Verizon’s CEO to jurisdiction here.

A. Plaintiffs Must Show Continuous And Systematic Contacts With D.C. Or Allege Injuries Arising From Specific Conduct With A Sufficient Connection To D.C.
Personal jurisdiction in this district generally “must be determined by reference to

District of Columbia law.” Mazza, 852 F. Supp. 2d at 39 (quoting United States v. Ferrara, 54

F.3d 825, 828 (D.C. Cir. 1995)); see also Fed. R. Civ. P. 4(k)(1)(A). The court must also

“determine whether the exercise of personal jurisdiction comports with the requirements of due

process.” Mazza, 852 F. Supp. 2d at 40.

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General Jurisdiction. Under D.C. law, a “District of Columbia court may exercise personal jurisdiction over a person domiciled in, organized under the laws of, or maintaining his or its principal place of business in, the District of Columbia as to any claim for relief.” D.C. Code § 13-422. A court may also exercise this kind of “general” jurisdiction under D.C. law where a nonresident corporation is “doing business in the District” if the defendant is served in the District. Id. § 13-334(a); see also Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 509 (D.C. Cir. 2002). “[T]he reach of ‘doing business’ jurisdiction under § 13–334(a) is coextensive with the reach of constitutional due process.” Id. at 510. As a matter of due process, the Supreme Court has explained that “[a] court may assert general jurisdiction over foreign (sisterstate or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011).
Specific Jurisdiction. “In contrast to general, all-purpose jurisdiction, specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.” Goodyear, 131 S. Ct. at 2851 (internal quotation marks omitted). Under D.C. law, a court may exercise specific jurisdiction “over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s:
(1) transacting any business in the District of Columbia; (2) contracting to supply services in the District of Columbia; (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; [or] (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages
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in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia; …. D.C. Code § 13-423(a) (omitting subsections (5) - (7) governing real property, sureties, and family relations). “With limited exceptions, the Code’s ‘transacting any business’ clause has been interpreted to provide jurisdiction to the full extent allowed by the Due Process Clause.” Ferrara, 54 F.3d at 828. When jurisdiction is based on § 13-423(a), “only a claim for relief arising from acts enumerated in th[at] section may be asserted.” D.C. Code § 13-423(b). To determine whether the exercise of specific jurisdiction comports with due process, a court must determine “whether there was ‘some act by which the defendant purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’” Goodyear, 131 S. Ct. at 2854 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). B. Verizon Communications Inc. Has No Connection To D.C. And Therefore Is
Not Subject To General Or Specific Jurisdiction In D.C. Verizon Communications Inc. has no jurisdictional connections to Washington, D.C., and thus is not subject to general or specific jurisdiction in this case. As explained in the accompanying Declaration of Jane A. Schapker, Verizon Communications Inc. is a Delaware corporation with its principal place of business in New York. See Schapker Decl. ¶ 2. The company has never been qualified or licensed to do business in the District of Columbia, and it does not have a registered agent for service of process in the District of Columbia. Id. ¶ 4. It thus is not subject to general jurisdiction under section 13-422 of the D.C. Code.
27

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Nor is Verizon Communications Inc. subject to general jurisdiction under D.C. Code

§ 13–334(a). As noted above, a court may exercise general personal jurisdiction over a

nonresident corporation under that provision only if the corporation was served within the District of Columbia.6 Here, Plaintiffs served Verizon by mailing a copy of the complaint and

summons to an address in New York. See Schapker Decl. ¶ 6. They did not and could not serve

Verizon in the District of Columbia. Id. Accordingly, Verizon is not subject to general personal

jurisdiction under the applicable long-arm statute, § 13–334(a). See, e.g., Gorman, 293 F.3d at

514 (Section 13-334(a) did not confer the district court with jurisdiction over the defendant

where plaintiff served the defendant by mailing a copy of the summons and complaint to the

defendant’s corporate headquarters in Nebraska); McDaniel v. FEDITC LLC, 825 F.Supp.2d

157, 161 (D.D.C. 2011) (finding service of process by mail to the defendant’s principal place of

business in Maryland insufficient to confer jurisdiction under Section 13–334).

In any event, Verizon Communications Inc. does not have sufficient ties to the District to

subject it to general jurisdiction under § 13–334(a) of the D.C. Code or specific jurisdiction

under § 13–423(a). The absence of any ties between Verizon and the District likewise means

that the exercise of jurisdiction would not comport with due process. Verizon Communications

Inc. is merely a holding company. See Schapker Decl. ¶ 3. Its sole purpose is to hold stock of

other companies. See id. The company “does not sell, market, or provide any

6

See D.C. Code § 13–334(a) (“In an action against a foreign corporation doing business in

the District, process may be served on the agent of the corporation or person conducting its

business, or, when he is absent and cannot be found, by leaving a copy at the principal place of

business in the District, or, where there is no such place of business, by leaving a copy at the

place of business or residence of the agent in the District....”); Janod, Inc. v. Echo Enter., Inc.,

890 F. Supp. 2d 13, 23, n.4 (D.D.C. 2012) (“[I]n order for a court to invoke jurisdiction under

Section 13–334(a), … the defendant must have been personally served [with process] in the

District of Columbia.”); Johns v. Newsmax Media Inc., 887 F. Supp. 2d 90, 97-98 (D.D.C. 2012)

(“If a company is not served in the District of Columbia, it cannot be subject to general

jurisdiction under § 13–334.”).

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telecommunications services.” Id. ¶ 4. It thus necessarily does not do so in the District of

Columbia. The company “does not have offices in the District of Columbia, does not own or

lease any real property in the District of Columbia, and does not advertise, solicit, or conduct

business in the District of Columbia.” Id. ¶ 5. For these reasons, the Court has no basis, as a

matter of D.C. law or due process, to exercise jurisdiction over Verizon.

Recognizing that Verizon Communications Inc. had no contacts with the District of

Columbia, Judge Sullivan in Mazza concluded that the plaintiff had “not met his burden of

establishing a basis for specific jurisdiction under any of the relevant categories set forth in the

long-arm statute.” 852 F. Supp. 2d at 40. The Court similarly rejected general jurisdiction,

noting that “Verizon Communications has proffered evidence that it does not conduct business in

the District of Columbia or have any commercial ties here.” Id. at 42 n.13. The Court found that

the plaintiff in that case could not show “that Verizon Communications [Inc.] has ‘continuous and systematic’ business contacts with this forum.” Id.7

C. Plaintiffs Have Not Alleged That Mr. McAdam Has Any Connection To D.C. Plaintiffs have not made any allegations that would establish a prima facie case of

personal jurisdiction over Mr. McAdam, Verizon’s CEO. They have not alleged that he is

domiciled in D.C. See D.C. Code § 13-422. Nor do they allege that he has continuous or

systematic contacts with the District. Finally, they do not allege that he took any action giving

rise to this specific lawsuit that either occurred in the District or caused injury here. Indeed, as

7

The Court in Mazza also rejected the plaintiff’s attempt to impute to Verizon

Communications Inc. the contacts of its subsidiaries, finding that the plaintiff had done nothing

to rebut Verizon Communications Inc.’s showing that it is “separate and distinct from other

Verizon entities and maintains all corporate formalities.” Id. at 42; see also Khatib v. Alliance

Bankshares Corp., 846 F. Supp. 2d 18, 26-34 (D.D.C. 2012). Here, Plaintiffs do not make any

allegations in their complaint that would cast doubt on Verizon Communications Inc.’s showing

that it is “separate and distinct from other Verizon entities and maintains all corporate

formalities.” Schapker Decl. ¶ 3.

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noted above, Plaintiffs’ second amended complaint does not allege that Mr. McAdam did anything at all. The only allegation regarding Mr. McAdam in the second amended complaint is that he “is the Chief Executive Officer of Verizon Communications.” SAC ¶ 16.
CONCLUSION For the foregoing reasons, the claims in Plaintiffs’ Class Action Second Amended Complaint directed at the Verizon Defendants should be dismissed with prejudice.

Dated: December 16, 2013

Respectfully submitted,
/s/ Randolph D. Moss Randolph D. Moss (D.C. Bar No. 417749) Brian M. Boynton (D.C. Bar. No. 483187) WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 Tel.: (202) 663-6000 Fax: (202) 663-6363 randolph.moss@wilmerhale.com
Counsel for the Verizon Defendants

30

Case 1:13-cv-00851-RJL Document 55 Filed 12/16/13 Page 41 of 41 CERTIFICATE OF SERVICE
I hereby certify that on December 16, 2013, I filed the foregoing document with the Clerk of Court for the United States District Court for the District of Columbia using the Court’s CM/ECF system, which caused notice of the filing to be served upon all counsel of record.
/s/ Randolph D. Moss Randolph D. Moss (D.C. Bar No. 417749)
31

 
 Case 1:13-cv-00851-RJL Document 25-5 Filed 11/12/13 Page 2 of 14

UNCLASSIFIED

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

)

AMERICAN CIVIL LIBERTIES UNION, )

~d,

)

)

Plaintiffs,

)

)

v.

)

)

JAMES R. CLAPPER, Director of National )

Intelligence, et al.,

)

)

Defendants.

)

13 Civ. 3994 (WHP) ECF Case

DECLARATION OF ACTING ASSISTANT DIRECTOR ROBERT J. HOLLEY FEDERAL BUREAU OF INVESTIGATION
I, Robert J. Holley, here by state and declare as follows: 1. I am the Acting Assistant Director of the Counterterrorism Division, Federal Bureau oflnvestigation (FBI), United States Department of Justice, a component of an Executive Department of the United States Government. I am responsible for, among other things, directing and overseeing the conduct of investigations originating from the FBI's Counterterrorism Division. As Acting Assistant Director, I have official supervision and control over files and records of the Counterterrorism Division, FBI, Washington, D.C. 2. The FBI submits this declaration in the above-captioned case in support of the Government's opposition to the plaintiffs' motion for a preliminary injunction. The statements made herein are based on my personal knowledge, and information I have obtained in the course of carrying out my duties and responsibilities as Acting Assistant Director. 3. I discuss herein the National Security Agency's (NSA's) telephony metadata program, authorized by the Foreign Intelligence Surveillance Court (FISC) pursuant to Section

UNCLASSIFIED

Case 1:13-cv-00851-RJL Document 25-5 Filed 11/12/13 Page 3 of 14
UNCLASSIFIED
215 ofthe USA-PATRIOT Act, under which the NSA obtains and queries bulk telephony metadata for counterterrorism purposes. I address in unclassified terms the value of this program as a tool, including as a complement to other classified and unclassified FBI investigatory capabilities not discussed herein, for protecting the United States and its people from terrorist attack.
Overview of the NSA Telephony Metadata Program 4. One of the greatest challenges the United States faces in combating intemational terrorism and preventing potentially catastrophic terrorist attacks on our country is identifying terrorist operatives and networks, particularly those operating within the United States. It is imperative that the United States Government have the capability to rapidly identify any terrorist threat inside the United States. Detecting threats by exploiting terrorist communications has been, and continues to be, one of the critical tools in this effort. 5. One method that the NSA has developed to accomplish this objective is the FISC-authorized bulk collection and analysis of telephony metadata that principally pertains to telephone calls to, from, or within the United States. Under the NSA's telephony metadata program authorized by the FISC, the term "metadata" refers to infonnation that is about telephone calls but does not include cell site location information or the content of any communication, as defined by 18 U.S.C. § 2510(8), or the name, address, or financial information of a subscriber or customer. Specifically, such telephony metadata include comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, Intemational Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of
2 UNCLASSIFIED

Case 1:13-cv-00851-RJL Document 25-5 Filed 11/12/13 Page 4 of 14
UNCLASSIFIED
call. By analyzing telephony metadata based on telephone numbers (or other identifiers) associated with terrorist operatives or activity, NSA analysts can work to determine whether known or suspected terrorists have been in contact with individuals in the United States. The NSA telephony metadata program was specifically developed to assist the Government in detecting communications between known or suspected terrorists who are operating outside of the United States and who are in contact with others inside the United States, as well as communications between operatives within the United States.
6. Under the NSA telephony metadata program at issue in this case, the FBI obtains orders from the FISC directing certain telecommunications service providers to produce telephony metadata, also referred to as call detail records, to the NSA. The NSA then stores, queries, and analyzes the metadata for counterterrorism purposes. The FISC issues these orders under the "business records" provision of the Foreign Inteiiigence Surveillance Act (FISA), 50 U.S.C. § 1861, enacted by section 215 of the USA PATRIOT Act (Section 215). Under the terms of the FISC's orders, the authority to continue the program must be renewed every 90 days. The FISC first authorized the program in May 2006, and since then it has periodically renewed the program thirty-three times under orders issued by fourteen (14) different FISC judges.
7. Under the FISC's orders, the information produced to the NSA is strictly limited to telephony metadata, including the telephone numbers used to make and receive the call, when the call took place, and how long the call lasted. The metadata obtained under this FISCauthorized program do not include any information about the content of those calls. The Government cannot, through this program, listen to or record any telephone conversations. The
3 UNCLASSIFIED

Case 1:13-cv-00851-RJL Document 25-5 Filed 11/12/13 Page 5 of 14
UNCLASSIFIED
metadata principally pertain to telephone calls made from foreign countries to the United States, calls made from the United States to foreign countries, and calls within the United States.
8. Telephony metadata can be an important tool in a counter-terrorism investigation because analysis of the data pennits the Government to determine quickly whether known or suspected terrorist operatives have been in contact with other persons who may be engaged in terrorist activities, including persons and activities within the United States. The NSA Section 215 telephonymetadata program is carefully limited to this purpose: it is not lawful for anyone to query the bulk telephony metadata for any purpose other than counterterrorism, and FISCimposed rules strictly limit all such queries. The program includes a variety of oversight mechanisms to prevent misuse, as well as external reporting requirements to the FISC and the United States Congress.
9. The utility of analyzing telephony metadata as an intelligence tool is not a matter of conjecture. Pen-register and trap-and-trace (PRITT) devices provide no historical contact infonnation, only a record of contacts with the target occurring after the devices have been installed. For decades reaching back to the Cold-War era, the FBI has relied on contact chaining as a method of detecting foreign espionage networks and operatives, both in the United States and abroad, and disrupting their plans. As discussed below, experience has shown that NSA metadata analysis, in complement with other FBI investigatory and analytical capabilities, produces information pertinent to FBI counter-terrorism investigations, and can contribute to the prevention of terrorist attacks. Indeed, in March 2009, the FISC ordered that the continued collection and retention of such metadata be justified by the submission of an affidavit from the Director of the FBI articulating the value of the program. The FBI provided the declaration as ordered and the Court reauthorized the program.
4 UNCLASSIFIED

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UNCLASSIFIED
Court Approval I 0. Under the Section 215 program at issue, the FBI submits an application to the FISC seeking orders directing named telecommunications service providers to produce to NSA call detail records created in the ordinary course of business. As required by Section 215, the Government's application contains a statement of facts showing that there are reasonable grounds to believe the records sought are relevant to the FBI's authorized investigations of the specified foreign terrorist organizations. In addition, the application explains that the records are sought for investigations to protect against international terrorism, conducted under guidelines approved by the Attorney General pursuant to Executive Order 12333 (as amended) that concern specified foreign terrorist organizations. The application is supported by a declaration from a senior official ofNSA's Signals Intelligence Directorate (SID). II. Starting in May 2006 fourteen (14) separate judges of the FISC have granted the Government's applications for bulk production of telephony metadata under this program on thirty-four (34) separate occasions. From time to time, prior to granting the Govenunent's application the Court convenes a hearing to receive additional evidence and testimony regarding the program and its implementation (as occurred in connection with the most recent renewal of the program on July 19, 2013). On granting an application, the FISC issues a "Primary Order" that recites the court's findings, including that there are reasonable grounds to believe the call detail records sought are relevant to authorized FBI investigations to protect against international terrorism. The Primary Order then provides that certain telecommunications service providers, upon receipt of appropriate Secondary Orders (discussed below), shall produce to NSA on an ongoing daily basis for the duration of the Primary Order electronic copies of the call detail records created by them containing the "telephony metadata" discussed above, explicitly
5 UNCLASSIFIED

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UNCLASSIFIED
excluding the substantive content of any communication, the name, address, or financial information of a subscriber or customer, and cell site location infonnation.
12. The Primary Order also sets a specific date and time on which the NSA's authority to collect bulk telephony metadata from the providers expires, usually within 90 days ofthe date on which the FISC issues the order, necessitating the submission of an application for additional orders to renew the NSA's authority if the program is to continue.
13. In conjunction with the Primary Order, the FISC also issues a so-called "Secondary Order" to each of the telecommunications service providers identified in the Primary Order. These orders direct the providers, consistent with the Primary Order, to produce "telephony metadata" to NSA on an ongoing daily basis thereafter for the duration of the Order. Telephony metadata is defined under the Secondary Orders to include (and exclude) the same information as under the Primary Order.
14. These prospective orders for the production of metadata make for efficient administration of the process for all parties involved-the FISC, the Government, and the providers. In theory the FBI could seek a new set of orders on a daily basis for the records created within the preceding 24 hours. But the creation and processing of such requests would impose entirely unnecessary burdens on both the FISC and the FBI- no new information would be anticipated in such a short period of time to alter the basis ofthe FBI's request or the facts upon which the FISC has based its orders. Providers would also be forced to review daily requests, rather than merely continuing to comply with one ongoing request, a situation that would be more onerous on the providers and raise potential and unnecessary compliance issues. The prospective orders sought and obtained by the FBI merely ensure that the records can be
6 UNCLASSIFIED

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UNCLASSIFIED
sought in a reasonable manner for a reasonable period of time (90 days) while avoiding unreasonable and burdensome paperwork.
NSA's Query and Analysis of the Metadata and Dissemination of the Results 15. Under the FISC Orders at issue, before NSA may query the metadata acquired under the FISC's orders for intelligence purposes, authorized NSA officials must determine that the identifiers on which the queries will be based are reasonably suspected of being associated with one (or more) of the foreign terrorist organizations specified in the Primary Order. 16. The information on which such determinations of"reasonable, articulable suspicion" are based comes from several sources, including the FBI. The FBI, based on infonnation acquired in the course of one or more counter-tenorism investigations, may develop reasons for concluding that a particular identifier, such as a foreign telephone number, is associated with a person (located in the United States or abroad) who is affiliated with one of the specified terrorist organizations. On that basis, the FBI may submit a request to NSA for fUtther information about that identifier available from the collected telephony metadata. Investigative Value of Telephony Metadata to the FBI's Counter-Tenorism Mission 17. Counter-tenorism investigations serve important purposes beyond the ambit of routine criminal inquiries and prosecution, which ordinarily focus retrospectively on specific crimes that have already occuned and the persons known or suspected to have committed them. The key purpose of terrorism investigations, in contrast, is to prevent terrorist attacks before they occur. Tenorism investigations also provide the basis for, and inform decisions conceming, other measures needed to protect the national security, including: excluding or removing persons involved in tenorism from the United States; freezing assets of organizations that engage in or support tenorism; securing targets of terrorism; providing threat information and wamings to
7 UNCLASSIFIED

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UNCLASSIFIED
other federal, state, local, and private agencies and entities; diplomatic or military actions; and actions by other intelligence agencies to counter international terrorism threats.
18. As a result, national security investigations often have remarkable breadth, spanning long periods oftime and multiple geographic regions to identify terrorist groups, their members, and their intended targets, plans, and means of attack, many of which are often unknown to the intelligence community at the outset. National security investigations thus require correspondingly far-reaching means of information-gathering to shed light on suspected terrorist organizations, their size and composition, geographic reach, relation to foreign powers, financial resources, past acts, goals, plans, and capacity for carrying them out, so that their plans may be thwruied before terrorist attacks are launched. Contact chaining information derived fi·om queries and analysis of the Section 215 bulk telephony metadata has contributed to achieving this critical objective.
19. The FBI derives significant value from the advantages of telephony metadata analysis. The FBI is charged with collecting intelligence and conducting investigations to detect, disrupt, and prevent terrorist threats to national security. The more pertinent information the FBI has regarding such threats, the more likely it will be able to protect against them. The oft-used metaphor is that the FBI is responsible for "connecting the dots" to fonn a picture of the threats to national security. Infonnation gleaned from analysis of bulk telephony metadata provides additional "dots" that the FBI uses to ascertain the nature and extent of domestic threats to the national security.
20. The NSA provides "tips" to the FBI regarding certain telephone numbers resulting from a query of the Section 215 telephony metadata. In certain instances, the FBI has received metadata-based tips containing information not previously known to the FBI about
8 UNCLASSIFIED

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UNCLASSIFIED
domestic telephone numbers utilized by targets of pending preliminary investigations. The information from the metadata tips has provided articulable factual bases to believe that the subjects posed a threat to the national security such that the preliminary investigations could be converted to full investigations, which, in turn, led the FBI to focus resources on those targets and their activities. The FBI has also re-opened previously closed investigations based on information contained in metadata tips. In those instances, the FBI had previously exhausted all leads and concluded that no further investigation was warranted. The new infonnation from the metadata tips was significant enough to warrant the re-opening of the investigations.
21. In other situations, the FBI may already have an investigative interest in a particular domestic telephone number prior to receiving a metadata tip from NSA. Nevertheless, the tip may be valuable if it provides new infonnation regarding the domestic telephone number that re-vitalizes the investigation, or otherwise allows the FBI to focus its resources more efficiently and effectively on individuals who present genuine threats (by helping either to confirm or to rule out particular individuals as subjects for further investigation).
22. Accordingly, the NSA telephony metadata program authorized under Section 215 is a valuable source of intelligence for the FBI that is relevant to FBI-authorized intemational terrorism investigations.
23. The tips or leads the FBI receives from bulk metadata analysis under this program can also act as an early warning of a possible threat to the national security. The sooner the FBI obtains infonnation about particular threats to national security, the more likely it will be able to prevent and protect against them. Bulk metadata analysis sometimes provides infonnation earlier than the FBI's other investigative methods and techniques. In those instances, the Section 215 NSA telephony metadata program acts as an "early warning system" of potential threats
9
UNCLASSIFIED

Case 1:13-cv-00851-RJL Document 25-5 Filed 11/12/13 Page 11 of 14
UNCLASSIFIED
against national security. Earlier receipt of this information may advance an investigation and contribute to the FBI preventing a terrorist attack that, absent the metadata tip, the FBI could not.
24. A number of recent episodes illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack. In January 2009, using authotized collection under Section 702 of the Foreign Intelligence Surveillance Act to monitor the communications of an extremist overseas with ties to al-Qa'ida, NSA discovered a connection with an individual based in Kansas City. NSA tipped the information to the FBI, which during the course of its investigation discovered that there had been a plot in its early stages to attack the New York Stock Exchange. After further investigation, NSA queried the telephony metadata to ensure that all potential connections were identified, which assisted the FBI in running down leads. As a result of the investigation, three defendants pled guilty and were convicted of terrorism offenses relating to their efforts to support al-Qa'ida.
25. In October 2009, David Coleman Headley, a Chicago businessman and dual U.S. and Pakistani citizen, was arrested by the FBI as he tried to depart from Chicago O'Hare airport on a trip to Pakistan. At the time of his arrest, Headley and his colleagues, at the behest of a!Qa'ida, were plotting to attack the Danish newspaper that published cartoons depicting the Prophet Mohammed. Headley was later charged with support to terrorism based on his involvement in the planning and reconnaissance for the 2008 hotel attack in Mumbai. Collection against foreign terrorists and telephony metadata analysis were utilized in tandem with FBI law enforcement authotities to establish Headley's foreign ties and put them in context with his U.S. based planning efforts.
26. In September 2009, using authotized collection under Section 702 to monitor a!Qa'ida terrorists overseas, NSA discovered that one of the al-Qa'ida associated terrorists was in
10 UNCLASSIFIED

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UNCLASSIFIED
contact with an unknown person located in the U.S. about efforts to procure explosive material. NSA immediately tipped this information to the FBI, which investigated further, and identified the al-Qa'ida contact as Colorado-based extremist Najibullah Zazi. NSA and FBI worked together to determine the extent of Zazi 's relationship with al-Qa'ida and to identify any other foreign or domestic terrorist links. NSA received Zazi's telephone number from the FBI and ran it against the Section 215 telephony metadata, identifying and passing additional leads back to the FBI for investigation. One of these leads revealed a previously unknown number for coconspirator Adis Medunjanin and corroborated his connection to Zazi as well as to other U.S.based extremists. Zazi and his co-conspirators were subsequently arrested. Upon indictment, Zazi pled guilty to conspiring to bomb the New York City subway system. In November 2012, Medunjanin was sentenced to life in prison.
Alternatives to the NSA's Bulk Collection of Telephony Metadata 27. The NSA bulk collection program at issue here presents distinct advantages. The contact chaining capabilities offered by the program exceed the chaining that is perfonned on data collected pursuant to other means, including traditional means of case-by-case intelligence gathering targeted at individual telephone numbers such as subpoena, warrant, national security letter, pen-register and trap-and-trace (PRJTT) devices, or more narrowly defined orders under Section 215. This is so in at least two important respects, namely, the NSA's querying and analysis of the aggregated bulk telephony metadata under this program. 28. First, the agility of querying the metadata collected by NSA under this program allows for more immediate contact chaining, which is significant in time-sensitive situations of suspects' communications with known or as-yet unknown co-conspirators. For example, if investigators find a new telephone number when an agent of one of the identified international
11 UNCLASSIFIED

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UNCLASSIFIED
terrorist organizations is captured, and the Government issues a national security letter for the call detail records for that particular number, it would only be able to obtain the first tier of telephone number contacts and, in rare instances, the second tier of contacts if the FBI separately demonstrates the relevance of the second-generation information to the national security investigation. At least with respect to the vast majority of national security letters issued, new national security letters would have to be issued for telephone numbers identified in the first tier, in order to find an additional tier of contacts. The delay inherent in issuing new national security letters would necessarily mean losing valuable time.
29. Second, aggregating the NSA telephony metadata from different telecommunications providers enhances and expedites the ability to identify chains of communications across multiple providers. Furthennore, NSA disseminations provided to the FBI from this program may include NSA's analysis informed by its unique collection capabilities.
Conclusion 30. As I explained above, the principal objective of FBI counter-terrorism investigations is to prevent and protect against potentially catastrophic terrorist attacks on the U.S. homeland and its people before they occur. In each instance, success depends on detecting and developing a sufficiently clear and complete picture of a terrorist network and its activities in time to thwart its plans. The exploitation of terrorist communications is a tool in this effort, and NSA's analysis of bulk telephony metadata under this FISC-authorized program provides the Govemment with one means of discovering communications involving unknown ten·orist operatives.
12 UNCLASSIFIED

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UNCLASSIFIED I declare under penalty of perjury that the foregoing is true and correct. Executed on October 1, 2013.
Robert J. Holley Acting Assistant Director Counterterrorism Division Federal Bureau oflnvestigation Washington, D.C.
13 UNCLASSIFIED

 
 Case 1:13-cv-00851-RJL Document 117 Filed 05/09/14 Page 1 of 43

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

LARRY KLAYMAN, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No.

)

1:13-cv-0851-RJL

BARACK OBAMA, President of the

)

United States, et al.,

)

)

Defendants.

)

_______________________________________)

THE GOVERNMENT DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Dated: May 9, 2014

STUART F. DELERY Assistant Attorney General
JOSEPH H. HUNT Director, Federal Programs Branch
ANTHONY J. COPPOLINO Deputy Branch Director
JAMES J. GILLIGAN Special Litigation Counsel MARCIA BERMAN Senior Trial Counsel BRYAN DEARINGER Trial Attorney RODNEY PATTON Trial Attorney JULIA BERMAN Trial Attorney
U.S Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 6102 Washington, D.C. 20001 Phone: (202) 514-3358 Fax: (202) 616-8470
Counsel for the Government Defendants

Case 1:13-cv-00851-RJL Document 117 Filed 05/09/14 Page 2 of 43
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 5
Statement of Facts............................................................................................................... 5 Proceedings to Date ............................................................................................................ 7 ARGUMENT ................................................................................................................................ 10 I. PLAINTIFFS’ REQUEST TO CONSOLIDATE THE
DETERMINATION OF THEIR FOURTH AMENDMENT CLAIM WITH THE COURT’S DECISION ON THEIR MOTION FOR A PRELIMINARY INJUNCTION SHOULD BE DENIED AS PREJUDICIAL TO DEFENDANTS AND CONTRARY TO THE INTERESTS OF JUDICIAL ECONOMY THAT RULE 65(a)(2) IS MEANT TO PROMOTE. ..................................................................................... 10 II. IF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IS CONSIDERED AT THIS TIME, IT SHOULD BE DENIED. ............................ 14 A. Plaintiffs Have Not Established Their Standing To Sue........................... 14
1. The requirements of Article III standing............................................ 14 2. Plaintiffs have not presented evidence of specific facts from
which it can be concluded that records of their calls have been collected or reviewed. ........................................................................ 15 3. The Court’s earlier ruling on standing should not be followed here............................................................................................................ 18 B. THE SECTION 215 TELEPHONY METADATA PROGRAM DOES NOT VIOLATE PLAINTIFFS’ FOURTH AMENDMENT RIGHTS. ................................................................................................... 23 1. Plaintiffs have no protected privacy interest in telephony metadata. ................................................................................................... 24 2. Smith is not distinguishable from this case. ...................................... 27 3. The telephony metadata program is reasonable. ................................ 33 CONCLUSION............................................................................................................................. 36

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CASES

TABLE OF AUTHORTIES

ACLU v. Clapper, 959 F. Supp. 2d 724 (S.D.N.Y. 2013)................................................................................ passim

Agostini v. Felton, 521 U.S. 203 (1997).................................................................................................................. 32

Air Line Pilots Ass'n Int'l v. Alaska Airlines, Inc., 898 F.2d 1393 (9th Cir. 1990) .................................................................................................. 11

Anderson v. Davila, 125 F.3d 148 (3d Cir. 1997)...................................................................................................... 11

AttorneyFirst, LLC v. Ascension Entertainment, Inc., 144 Fed. Appx. 283 (4th Cir. June 8, 2005) ............................................................................. 11

Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822 (2002).................................................................................................................. 34

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).................................................................................................................... 8

Bond v. United States, 529 U.S. 334 (2000).................................................................................................................. 27

CFTC v. Bd. of Trade of Chicago, 657 F.2d 124 (7th Cir. 1981) .................................................................................................... 11

Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013) ....................................................................................................... passim

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006)............................................................................................................ 14, 16

Devlin v. Scardelletti, 536 U.S. 1 (2002)...................................................................................................................... 15

Haig v. Agee, 453 U.S. 280 (1981).................................................................................................................. 35

Horton v. California, 496 U.S. 128 (1990).................................................................................................................. 22

ii

Case 1:13-cv-00851-RJL Document 117 Filed 05/09/14 Page 4 of 43
In re Directives, 551 F.3d 1004 (FISC-R 2008) .................................................................................................. 35
In re Grand Jury Proceedings, 827 F.2d 301 (8th Cir. 1987) .................................................................................................... 30
In re Sealed Case, 310 F.3d 717 (FISC-R 2002) .................................................................................................... 34
Johnson v. Quander, 440 F.3d 489 (D.C. Cir. 2006) .................................................................................................. 21
Katz v. United States, 389 U.S. 347 (1967).................................................................................................................. 25
Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013) ....................................................................................... passim
Laird v. Tatum, 408 U.S. 1 (1972)...................................................................................................................... 18
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)....................................................................................................... 14 15, 22
Mann v. Castiel, 681 F.3d 368 (D.C. Cir. 2012) .................................................................................................. 12
Maryland v. King, 133 S. Ct. 1958 (2013) .............................................................................................................. 34
Morris v. Dist. of Columbia, 2014 WL 1648293 (D.D.C. Apr. 25, 2014) .............................................................................. 11
Mova Pharm. Corp. v. Shalala, 955 F. Supp. 128 (D.D.C. 1997) ............................................................................................... 11
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999).................................................................................................................. 12
NTEU v. Von Raab, 489 U.S. 656 (1989)............................................................................................................ 34, 35
Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008), ................................................................................................... 26
iii

Case 1:13-cv-00851-RJL Document 117 Filed 05/09/14 Page 5 of 43
Raines v. Byrd, 521 U.S. 811 (1997).................................................................................................................. 14
Rakas v. Illinois, 439 U.S. 128 (1978).................................................................................................................. 30
Reporters Comm. for Freedom of the Press v. AT&T, 593 F.2d 1030 (D.C. Cir. 1978) ................................................................................................ 26
SEC v. Jerry T. O'Brien, Inc., 467 U.S. 735 (1984).................................................................................................................. 27
Smith v. Maryland, 442 U.S. 735 (1979)........................................................................................................... passim
Steagald v. United States, 451 U.S. 204 (1981).................................................................................................................. 30
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998).................................................................................................................... 15
Tea Party Leadership Fund v. Fed. Election Comm'n, No. 12-1707, 2012 WL 5382844 (D.D.C. Nov. 2, 2012) ......................................................... 10
Teva Pharm. USA, Inc. v. FDA, 398 F. Supp. 2d 176 (D.D.C. 2005) .......................................................................................... 10
Texas v. Brown, 460 U.S. 730 (1983).................................................................................................................. 23
U.S. Telecom Ass'n v. FCC, 227 F.3d 450 (D.C. Cir 2000) ................................................................................................... 26
United Presbyterian Church in the USA v. Reagan, 738 F.2d 1375 (D.C. Cir. 1984) ................................................................................................ 18
United States ex rel. Shea v. Verizon Bus. Network Servs., Inc., 904 F. Supp. 2d 28 (D.D.C. 2012) ............................................................................................ 16
United States v. Banks, 3 F.3d 399 (11th Cir. 1993) ...................................................................................................... 23
United States v. Baxter, 492 F.2d 150 (9th Cir. 1973) .................................................................................................... 26
iv

Case 1:13-cv-00851-RJL Document 117 Filed 05/09/14 Page 6 of 43
United States v. Clutter, 674 F.3d 980 (8th Cir. 2012) .................................................................................................... 23
United States v. Dionisio, 410 U.S. 1 (1973)...................................................................................................................... 30
United States v. Doe, 537 F. Supp. 838 (E.D.N.Y. 1982) ........................................................................................... 26
United States v. Fithian, 452 F.2d 505 (9th Cir. 1971) .................................................................................................... 26
United States v. Forrester, 512 F.3d 500 (9th Cir. 2008) .................................................................................................... 26
United States v. Jacobsen, 466 U.S. 109 (1984)............................................................................................................ 22, 33
United States v. Jones, 132 S. Ct. 945 (2012) ......................................................................................................... passim
United States v. Licata, 761 F.2d 537 (9th Cir. 1985) .................................................................................................... 23
United States v. Miller, 425 U.S. 435 (1976)........................................................................................................... passim
United States v. Moalin, 2013 WL 6079518 (S.D. Cal. Nov. 18, 2013) .......................................................................... 24
United States v. Place, 462 U.S. 696 (1983)............................................................................................................ 22, 33
United States v. Reed, 575 F.3d 900 (9th Cir. 2009) .................................................................................................... 26
United States v. Rigmaiden, 2013 WL 1932800 (D. Ariz. May 8, 2013) .............................................................................. 30
United States v. U.S. Dist. Court, 407 U.S. 297 (1972).................................................................................................................. 34
United States v. VanLeeuwen, 397 U.S. 249 (1970).................................................................................................................. 22
v

Case 1:13-cv-00851-RJL Document 117 Filed 05/09/14 Page 7 of 43
University of Texas v. Camenisch, 451 U.S. 390 (1981).................................................................................................................. 11
Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464 (1982).................................................................................................................. 14
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995).................................................................................................................. 34
W. Va. Cmty. Health Ctrs. v. Heckler, 734 F.2d 1570 (D.C. Cir. 1984) ................................................................................................ 10
Whitmore v. Arkansas, 495 U.S. 149 (1990).................................................................................................................. 16
STATUTES 50 U.S.C. § 1861............................................................................................................................. 1 FEDERAL RULES OF CIVIL PROCEDURE Fed. R. Civ. P. 56(a) ..................................................................................................................... 14 Fed. R. Civ. P. 25(d) ....................................................................................................................... 1 Fed. R. Civ. P. 65(a)(2)....................................................................................................... 2, 10, 13 Fed. R. Civ. P. 26 ............................................................................................................................ 8
vi

Case 1:13-cv-00851-RJL Document 117 Filed 05/09/14 Page 8 of 43

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

LARRY KLAYMAN, et al.,

)

)

Plaintiffs, )

Civil Action No.

)

1:13-cv-00851-RJL

v.

)

)

BARACK OBAMA, President of the )

United States, et al.,

)

)

Defendants. )

____________________________________)

THE GOVERNMENT DEFENDANTS’1 OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

INTRODUCTION

This Court is already thoroughly familiar with this case and its current procedural

posture, and appreciates both the importance of the constitutional questions presented and the

national security interests at stake. See Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013).

Plaintiffs challenge the constitutionality of the Government’s acquisition and analysis of bulk

telephony metadata pursuant to Section 215 of the USA-PATRIOT Act, an intelligence program

carried out under authority of the Foreign Intelligence Surveillance Court (“FISC”) for the

purpose of discovering communications with and among unknown terrorist operatives, and

preventing terrorist attacks. In granting Plaintiffs’ motion for a preliminary injunction, the Court

concluded that Plaintiffs have a substantial likelihood of prevailing on their claim that the

program violates the Fourth Amendment. Yet at the same time, the Court stayed its injunction

1 The Government Defendants are defendants Barack Obama, President of the United States, Eric Holder, Attorney General of the United States, and Admiral Michael S. Rogers, Director of the National Security Agency (NSA), insofar as they are sued in their official capacities, together with defendants NSA, and the United States Department of Justice (DOJ). Pursuant to Federal Rule of Civil Procedure 25(d), Admiral Rogers is automatically substituted as an official-capacity defendant to this action, but not in his individual capacity, in place of former NSA Director General Keith Alexander.

Case 1:13-cv-00851-RJL Document 117 Filed 05/09/14 Page 9 of 43
pending the D.C. Circuit’s ruling on the Government’s appeal, remarking on the “novelty” of the constitutional questions involved and the national security interests at stake. It is difficult to conceive of a case in which making a rush to judgment would be more ill-advised. Yet that is precisely what Plaintiffs now ask of this Court, by moving to advance the Court’s ruling on the merits of their Fourth Amendment claim, and consolidate it with the Court’s decision on their motion for preliminary injunctive relief. That request should be denied.
In order to promote the interests of judicial economy, Federal Rule of Civil Procedure 65(a)(2) permits a court in appropriate cases to advance the determination of a case on the merits and consolidate it with the hearing on a plaintiff’s motion for a preliminary injunction. The Supreme Court has instructed, however, that it is generally inappropriate for a court at the preliminary injunction stage to render a final judgment on the merits, unless the parties are given adequate notice and each party has the opportunity to fully present its case. Consolidation in this case, however—where the Government had less than two weeks to prepare its opposition to Plaintiffs’ motion, where Plaintiffs provided no notice of their intention to seek summary judgment while the Fourth Amendment issue remains on appeal, and where the scope of the issues to be decided in this Court will not be known with certainty until the D.C. Circuit rules on the Government’s appeal—would deprive the Government Defendants of an opportunity to fully present their case in support of the legality of the telephony metadata program.
It also cannot be overlooked that Plaintiffs have asserted Bivens claims against three current and former Government officials seeking damages from them in their personal capacities for alleged violations of Plaintiffs’ constitutional rights. Because Plaintiffs have yet to serve these defendants in their personal capacities, summary judgment cannot be entered against them. Nevertheless, even if judgment were entered only against the Government Defendants, the
2

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individual-capacity defendants would be prejudiced if the Court arrived at a judgment on the merits of Plaintiffs’ Fourth Amendment claim before the individual defendants can be heard. Moreover, it would not promote, but disserve the interests of judicial economy to reach the merits of Plaintiffs’ claim while the Fourth Amendment issue remains on appeal, as explained in the Government Defendants’ motion for a stay. Indeed, entering judgment on that claim now, only to be followed (as Plaintiffs propose) by discovery on Plaintiffs’ remaining First and Fifth Amendment claims, and a trial on damages, presumably against the still unserved individual defendants, would be a blueprint for procedural chaos, not efficiency.
Even if the Court were to entertain Plaintiffs’ motion for summary judgment at this time, it still should be denied. For the reasons discussed herein, the Court lacks jurisdiction to consider Plaintiffs’ Fourth Amendment claim, and the claim fails to state grounds on which relief can be granted. First, Plaintiffs have not carried their burden of proving specific facts demonstrating their standing. The fact that they are subscribers of telecommunications services provided by Verizon Wireless is not sufficient. Although the Government has acknowledged that the Section 215 telephony metadata program is broad in scope and involves the aggregation of metadata collected from multiple telecommunications companies, the program has never collected information on all (or virtually all) telephone calls made and/or received in the United States, as the Court previously surmised. The Government has only confirmed the participation, for the duration of one, now-expired FISC order, of Verizon Business Network Services, Inc., a separate business entity from Verizon Wireless. Otherwise, the identities of any carriers participating in the program at any time remains properly classified.
Beyond the issue of collection, Plaintiffs have not proven that they have suffered any injury from the querying of metadata collected under the telephony metadata program. They
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express concerns that metadata collected under the program could be “used against” them in some undefined manner, but they have presented no evidence that NSA personnel have reviewed, much less misused, metadata pertaining to their calls. Indeed, because of the strict legal constraints on the NSA’s access to and use of the metadata, only a tiny fraction of the metadata is ever seen by any person. Thus it is sheer speculation to suggest that records of calls to or from Plaintiffs have been or ever will be retrieved or reviewed, much less that the Government could use such information against them.
Second, Plaintiffs’ claim fails on the merits. Plaintiffs’ Fourth Amendment claim is foreclosed by Smith v. Maryland, 442 U.S. 735 (1979), which held that there is no reasonable expectation of privacy for purposes of the Fourth Amendment in the numbers dialed to connect a telephone call. Thus, the Government does not conduct a Fourth Amendment “search” when it collects telephony metadata, nor does it “seize” Plaintiffs’ property when telecommunications companies provide their own business records to the Government under orders of the FISC. The reasoning of Smith—that telephone subscribers voluntarily convey dialing information to the telephone company and therefore assume the risk that the telephone company will reveal that information to the Government—is fully applicable here, as all courts to consider the question, save this one, have concluded. As the FISC recently held, neither the greater volume of metadata at issue here nor changes in technology since 1979 provide a basis on which to disregard the controlling authority of Smith.
Even if Plaintiffs had a reasonable expectation of privacy in business records held by a third party, Plaintiffs have not alleged an invasion of that privacy interest, and in any event the telephony metadata program is reasonable, and therefore lawful, under Fourth Amendment “special needs” analysis. That analysis requires a balancing between the minimal privacy
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interests involved in the collection of non-content telephony metadata, and the Government’s important interest in identifying and tracking terrorist operatives. That balance tilts in favor of the constitutionality of the telephony metadata program.
For these reasons, discussed more fully below, Plaintiffs’ request for entry of summary judgment on their Fourth Amendment claim should be denied, and a decision on the merits of Plaintiffs’ Fourth Amendment claim should await both the Court of Appeals’ ruling on the Government’s appeal from this Court’s preliminary injunction, and an opportunity for all parties to prepare and present their cases on the extraordinary issues of constitutional law, and national security, presented by this case.
BACKGROUND Statement of Facts The Government Defendants incorporate herein by reference the Statement of Facts contained in the Government Defendants’ Opposition to Plaintiffs’ Motions for Preliminary Injunctions (“Gov’t Defs.’ PI Opp.”) (ECF No. 25) so far as it pertains to the NSA’s acquisition of bulk telephony metadata under Section 215. See id. at 5-7, 8-13. The Government Defendants supplement that discussion, however, as follows. The substantial protections and prohibitions built into the Section 215 telephony metadata program “to safeguard U.S. person information,” In re Application of the FBI for an Order Requiring the Production of Tangible Things from [Redacted], Dkt. No. BR 13-109, Am. Mem. Op. at 9 (F.I.S.C. Aug. 29, 2013) (publicly released, unclassified version) (“Aug. 29, 2013 FISC Op.”) (Gov’t Defs.’ PI Opp., Exh. A); Gov’t Defs.’ PI Opp. at 10–13, have been further enhanced by two recent modifications to the program announced by the President in January 2014 and adopted in subsequent FISC orders. Prior to these modifications, FISC orders
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authorizing the program provided that one of 22 designated NSA officials had to make a determination of reasonable, articulable suspicion that a proposed selector was associated with an identified foreign terrorist organization before it could be used to conduct queries of the database. The FISC orders also permitted query results to include identifiers and associated metadata up to three steps (or hops) away from the suspected-terrorist selector. See Gov’t Defs.’ PI Opp. at 11–12; id. Exh. E (In re Application of the FBI for an Order Requiring the Production of Tangible Things [etc.], Dkt. No. BR 13-80, Primary Order (F.I.S.C. Apr. 25, 2013)) (“Primary Order”) at 7; id. Exh. C (Declaration of Teresa H. Shea) (“Shea Decl.”) ¶ 22.
In January the President announced that he was directing the Government to take immediate steps to implement two changes to the program. Remarks by the President on Review of Signals Intelligence, http://www.whitehouse.gov/the-press-office/2014/01/17/ remarkspresident-review-signals-intelligence. The first requires advance findings by the FISC of reasonable, articulable suspicion that selectors used to query the metadata are associated with foreign terrorist organizations (except in emergency situations, in which case the Government must seek retrospective FISC approval of the selector). The second limits query results to metadata within two “hops” (rather than three) of suspected terrorist selectors. In February, the FISC granted the Government’s motion to implement these two changes. See Decl. of Teresa H. Shea, Signals Intelligence Director, NSA (“Klayman Shea Decl.”) (Exhibit A, hereto) ¶¶ 3–5 & Exh. A (In re Application of the FBI for an Order Requiring the Prod. of Tangible Things [etc.], Dkt. No. BR 14-01, Order Granting the Gov’t’s Mot. To Amend the Court’s Primary Order dated January 3, 2014 (F.I.S.C. Feb. 15, 2014)) at 3–9.2
2 On March 27, 2014, the President further announced, after considering options presented to him by the Intelligence Community and the Attorney General, that he will seek legislation to replace the Section 215 bulk telephony-metadata program. Statement by the
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Although the Government has acknowledged that the Section 215 program is broad in
scope and involves the collection and aggregation of a large volume of data from multiple
telecommunications service providers, see Gov’t Defs.’ PI Opp. at 11–12, the program has never
captured information on all (or virtually all) calls made and/or received in the United States.
Public speculation to that effect is untrue. Klayman Shea Decl. ¶ 8. The FISC has also
explained that the Government does not acquire call detail records relating to all telephone calls
to, from, or within the United States. Aug. 29, 2013 FISC Op. at 4 n.5 (“production of all call
detail records of all persons in the United States has never occurred under this program”).
Proceedings to Date
Plaintiffs brought this action on June 6, 2013, immediately following the unauthorized
public disclosure of then classified information regarding the NSA’s Section 215 telephony
metadata program by The Guardian. Compl. (ECF No. 1); see Class Action Am. Compl. (ECF
No. 4), and claim that the program violates their rights under the First, Fourth, and Fifth
Amendments. Third Am. Compl. (ECF No. 77), ¶¶38–58. Plaintiffs name as defendants the
NSA and DOJ, id. ¶¶ 15, 17, together with Government officials sued in their official and/or
President on the Section 215 Bulk Metadata Program, http://www.whitehouse.gov/the-pressoffice/2014/03/27/statement-president-section-215-bulk-metadata-program. The President stated that his goal was to “establish a mechanism to preserve the capabilities we need without the government holding this bulk metadata” to “give the public greater confidence that their privacy is appropriately protected,” while maintaining the intelligence tools needed “to keep us safe.” Instead of the Government obtaining business records of telephony metadata in bulk, the President proposed that telephony metadata should remain in the hands of telecommunications companies. The President stated that “[l]egislation will be needed to permit the government to obtain this information with the speed and in the manner that will be required to make this approach workable.” Under such legislation, the Government would be authorized to obtain telephony metadata from the companies pursuant to individualized orders from the FISC. The President explained that, in the meantime, the Government would seek from the FISC a 90-day reauthorization of the existing Section 215 program, with the two modifications already approved by the FISC in February, and the court has since entered an order reauthorizing the program as modified. See generally id; Klayman Shea Decl. ¶¶6–7.
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individual capacities (defendants Obama, Holder, Alexander, and the Hon. Roger Vinson, United States District Judge, formerly of the FISC), id. ¶¶ 13–14, 16, 18. Plaintiffs seek various forms of injunctive and other equitable relief, in addition to $3 billion in damages against the individually named defendants under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Id. ¶¶ 43, 49–50, 58–60. To the best of the Government Defendants’ knowledge, and so far as the record reflects, the individual defendants have not yet been served with process in their personal capacities. See Mem. of Individual Fed. Defs. in Opp’n to Pls.’ “Mot. for Entry of Default” (ECF No. 88) (Mem. of Individual Defs. in Opp’n to Mot. for Default”) at 3, 7, 10.
Plaintiffs moved for preliminary injunctive relief in this case (and in Klayman v. Obama, No. 13-cv-881 (RJL)) on October 29, 2013. See Pls.’ Mot. for Prelim. Inj. (ECF No. 13). The following day, the Government Defendants sought an extension of the deadline to submit their opposition to Plaintiffs’ motion until December 2, 2013, to coincide with the deadline to file their then-anticipated motion to dismiss Plaintiffs’ Class Action Amended Complaint. Gov’t Defs.’ Mot. To Extend the Time To Respond to Pls.’ Mots. for Prelim. Injs. (ECF No. 16). At the status conference held on October 31, 2013, the Court denied the Government’s request and directed the Government Defendants to file their opposition on November 11, 2013. Minute Entry dated October 31, 2013. The Court heard argument on November 18, 2013, see Minute Entry dated November 18, 2013, following which the parties, on November 26, 2013, submitted supplemental briefs on the issues of standing and the Court’s jurisdiction to consider Plaintiffs’ (now withdrawn) statutory claims. See ECF Nos. 43, 44.
On December 16, 2013, the Court granted Plaintiffs’ motion for a preliminary injunction prohibiting NSA’s collection or retention of metadata associated with their communications as
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part of the Section 215 bulk telephony metadata program. Mem. Op. and Order (ECF Nos. 48, 49); Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013). The Court determined that plaintiffs Larry Klayman and Charles Strange have standing to challenge the legality of the program, and concluded that they had shown a likelihood of success on the merits of their Fourth Amendment claim. Klayman, 957 F. Supp. 2d at 25-42. The Court did not reach the merits of Plaintiffs’ other constitutional claims. See id. at 9 n.7. Citing “the significant national security interests at stake,” and what it described as “the novelty of the constitutional issues,” the Court sua sponte stayed its injunction pending appeal. Id. at 43-44.
On January 3, 2014, the Government filed a notice of appeal from the Court’s preliminary injunction. ECF No. 64. The deadline for dispositive motions (extended once on the Government’s motion) expired on April 11, 2014. See Klayman v. Obama, No. 14-5005 (D.C. Cir.), Per Curiam Order (Mar. 5, 2014) (Dkt. No. 1482432). Thereupon the Government filed a motion seeking entry of a briefing schedule. Id. (Dkt. No. 1488123).
Since the Court issued its preliminary injunction ruling, Plaintiffs have repeatedly expressed a desire to conduct discovery in support of their claims while the Court’s ruling remains on appeal, and thereafter to proceed to trial, before seeking a decision of the case on the merits. See Pls.’ Mot. for Status Conference (ECF No. 63); Pls.’ Opp. to Mot. for Stay of Proceedings Against the Gov’t Defs. Pending Appeal of Prelim. Inj. [etc.] (ECF No. 70) at 3, 4, 6; Pls.’ Opp. to Gov’t Defs.’ Partial Mot. To Dismiss (ECF No. 74) at 3, 11; Pls.’ Am. Mot To Compel Defs.’ Compliance with FRCP Rule 26 (ECF No. 104). At no point (until now) have Plaintiffs indicated an intention to seek summary judgment on their Fourth Amendment claim while the Court’s preliminary injunction ruling remains on appeal. Nonetheless, on April 15, 2014, Plaintiffs filed their motion for partial summary judgment on their Fourth Amendment
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claim (ECF No. 108), seeking entry of a permanent injunction under Federal Rule of Civil Procedure 65(a)(2), to be followed by “discovery and trial on the damage claims,” including Plaintiffs’ “other constitutional claims under the First and Fifth Amendments.” Mem. in Supp. of Pls.’ Mot. for Partial Summ. Judg. (ECF No. 108) (“Pls.’ SJ Mem.”) at 1, 12.
ARGUMENT Plaintiffs’ request to advance the Court’s ruling on the merits of their Fourth Amendment claim and to consolidate it with the Court’s ruling on their motion for a preliminary injunction should be denied as premature, prejudicial to the Government Defendants, prejudicial to the individual defendants, and contrary to the orderly and efficient administration of justice. Alternatively, Plaintiffs’ motion should be denied (1) for lack of subject matter jurisdiction, as Plaintiffs have not established their standing to sue, or (2) on its merits, for even if Plaintiffs had established their standing, they have not demonstrated a violation of their Fourth Amendment rights entitling them to judgment as a matter of law. I. PLAINTIFFS’ REQUEST TO CONSOLIDATE THE DETERMINATION OF THEIR FOURTH AMENDMENT CLAIM WITH THE COURT’S DECISION ON THEIR MOTION FOR A PRELIMINARY INJUNCTION SHOULD BE DENIED AS PREJUDICIAL TO DEFENDANTS AND CONTRARY TO THE INTERESTS OF JUDICIAL ECONOMY THAT RULE 65(A)(2) IS MEANT TO PROMOTE. Rule 65(a)(2) provides, in pertinent part, that “[b]efore or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing.” “This procedural device is designed to conserve judicial resources and avoid duplicative proceedings.” Tea Party Leadership Fund v. FEC, 2012 WL 5382844, *1 (D.D.C. Nov. 2, 2012) (citation omitted); Teva Pharm. USA, Inc. v. FDA, 398 F. Supp. 2d 176, 181 n.1 (D.D.C. 2005) (same), vacated on other grounds, 441 F.3d 1 (D.C. Cir. 2006).
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The Supreme Court has instructed, however, that because “a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits,” and “[a] party thus is not required to prove [its] case in full at a preliminary-injunction hearing,” “it is generally inappropriate for a federal court at the preliminary-injunction stage to give a final judgment on the merits.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981); see W. Va. Ass’n of Cmty Health Ctrs. v. Heckler, 734 F.2d 1570, 1578 (D.C. Cir. 1984). See also AttorneyFirst, LLC v. Ascension Entm’t, Inc., 144 Fed. Appx. 283, 287-88 (4th Cir. June 8, 2005). Thus, before a ruling on the merits of a party’s claim may be consolidated with the hearing on a plaintiff’s application for a preliminary injunction, “the parties should normally receive clear and unambiguous notice [of the court’s intent] either before the hearing commences or at a time which will still afford the parties a full opportunity to present their respective cases.” Camenisch, 451 U.S. at 395; AttorneyFirst, 144 Fed. Appx. at 287; Anderson v. Davila, 125 F.3d 148, 157-58 (3d Cir. 1997); Morris v. Dist. of Columbia, 2014 WL 1648293, *2 n.1 (D.D.C. Apr. 25, 2014). A final judgment entered at the preliminary injunction stage must be vacated if a party was deprived of that chance. Mova Pharm. Corp. v. Shalala, 955 F. Supp. 128, 129 n.1 (D.D.C. 1997). See CFTC v. Bd. of Trade of Chi., 657 F.2d 124, 127 (7th Cir. 1981) (citing cases); see also Anderson, 125 F.2d at 158-59; Air Line Pilots Ass’n Int’l v. Alaska Airlines, Inc., 898 F.2d 1393, 1397 (9th Cir. 1990).
Plaintiffs’ request for consolidation should be denied because consolidation in the current posture of this case would deprive the Government Defendants of the opportunity to fully present their case on a question of substantial constitutional importance with potential ramifications for national security. Under the schedule ordered by the Court, the Government had less than two weeks to prepare its opposition to Plaintiffs’ preliminary injunction motion, see supra at 8, and
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was given no notice at the time that the record on which Plaintiffs’ motion was to be decided would also become the basis for rendering a final judgment. Moreover, since the Court ruled on Plaintiffs’ motion in December 2013, Plaintiffs have given no indication that they would be seeking summary judgment while the Court’s preliminary injunction remains on appeal. See supra, at 9. Thus, the Government Defendants have been given no reason to expect that at this time they would have to present their full case on the merits (or defend the constitutionality of the Section 215 program on the basis of an abbreviated record), and do so without critical guidance from the Court of Appeals regarding the issues, if any, that remain to be addressed.
The Government Defendants are not the only parties that could be prejudiced by a final judgment rendered on Plaintiffs’ Fourth Amendment claim at this time. Plaintiffs have brought identical Bivens claims against three current and former Government officials, and a sitting federal judge, seeking $3 billion in damages against them for allegedly violating Plaintiffs’ constitutional rights. See supra at 7; Third Am. Compl. ¶¶ 38–58. Although this case is nearly a year old, these individually named defendants still have not been properly served with process in their individual capacities, see Mem. of Individual Defs. in Opp’n to Mot. for Default at 5-9, and are under no present obligation to participate or even appear in these proceedings, Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 353 (1999) (“service of process [is] the official trigger for responsive action by an individual or entity named defendant”); Mann v. Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012) (“Service of process … is fundamental to any procedural imposition on a named defendant.”) (citation and quotation marks omitted), much less to present their case on the merits.3 Entering final judgment on Plaintiffs’ Fourth Amendment
3 Indeed, the Court should dismiss the individual-capacity claims under Federal Rule of Civil Procedure 4(m) due to Plaintiffs’ failure to prosecute those claims. See Mem. of Individual Defs. in Opp’n to Mot. for Default at 10-11.
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claim would prejudice these defendants (even if the judgment were limited to the Government Defendants) because the Court would have arrived at a final determination of the very claim that is raised against them without providing them an opportunity to be heard.
Not only would consolidation prejudice all the defendants in this case, it would also disserve the interests of judicial economy that Rule 65(a)(2) is intended to promote. The Court itself has remarked on what it viewed as the “novel[ ]” constitutional issues presented here. Klayman, 957 F. Supp. 2d at 43. Rendering judgment on Plaintiffs’ Fourth Amendment claims without awaiting the Court of Appeals’ guidance on those issues would require expenditures of time, effort and resources by the Court and the parties that could be avoided depending on the Court of Appeals’ ruling. See Gov’t Defs.’ Stay Mot. at 6. Moreover, Plaintiffs themselves envision that, following the Court’s ruling on their Fourth Amendment claim, the case would still proceed to discovery on their First and Fifth Amendment claims—thus dissipating any efficiencies that might be gained from an accelerated decision on the Fourth Amendment claim. Pls’ Mot. at 1, 12. They also anticipate a trial on damages, id., presumably against the as yet unserved individual-capacity defendants, who would still be entitled to present their case on the underlying Fourth Amendment claim. Executing Plaintiffs’ plan for “consolidation” would hopelessly splinter, not streamline, these proceedings.
For these reasons, Plaintiffs’ request for entry of summary judgment on their Fourth Amendment claim, whether under Rule 65(a)(2) or otherwise, should be denied as premature until the D.C. Circuit has ruled on the Government Defendants’ appeal from this Court’s preliminary injunction, and all parties have been given a full opportunity thereafter to prepare and present their cases.
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II. IF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IS CONSIDERED AT THIS TIME, IT SHOULD BE DENIED. Even if Plaintiffs’ motion for summary judgment were procedurally proper, it should be
denied nevertheless because Plaintiffs have not established their standing to challenge the legality of the Section 215 telephony metadata program, nor demonstrated a violation of their Fourth Amendment rights entitling them to judgment as a matter of law. Fed. R. Civ. P. 56(a).
A. Plaintiffs Have Not Established Their Standing To Sue. 1. The requirements of Article III standing
“The judicial power of the United States … is not an unconditioned authority to determine the [validity] of legislative or executive acts,” but is limited by Article III of the Constitution “to the resolution of ‘cases’ and ‘controversies.’” Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 471 (1982). “No principle is more fundamental to the judiciary’s proper role in our system of government.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006). A demonstration by Plaintiffs of their standing to sue “is an essential and unchanging part of the case-or-controversy requirement.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). While the Supreme Court “ha[s] always insisted on strict compliance with this jurisdictional standing requirement,” Raines v. Byrd, 521 U.S. 811, 819 (1997), the “standing inquiry has been especially rigorous when reaching the merits of the dispute would force [a court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (internal quotation marks and citations omitted). As the Supreme Court observed in Amnesty International, it has “often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs.” Id.
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To establish Article III standing, Plaintiffs must seek relief from an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Id. Because standing is “an indispensable part of [a] plaintiff’s case,” Defenders of Wildlife, 504 U.S. at 561, Plaintiffs, as the parties invoking federal jurisdiction, bear the burden of establishing these three elements. Devlin v. Scardelletti, 536 U.S. 1, 6–7 (2002). To shoulder that burden at the summary judgment stage, Plaintiffs “can no longer rest on … mere allegations, but must set forth by affidavit or other evidence specific facts” demonstrating that metadata pertaining to their communications have been acquired under the Section 215 program. See Amnesty Int’l, 133 S. Ct. at 1149 (quoting Defenders of Wildlife, 504 U.S. at 561). If Plaintiffs cannot carry their threshold jurisdictional burden of establishing their standing, “the [C]ourt cannot proceed” and must dismiss the case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104 (1998).
2. Plaintiffs have not presented evidence of specific facts from which it can be concluded that records of their calls have been collected or reviewed.
Plaintiffs’ motion for summary judgment should be denied because they have presented no evidence of specific facts demonstrating that they have been injured because of the telephony metadata program. Plaintiffs Klayman and Charles Strange attest (in affidavits submitted in support of their preliminary injunction motion) that they have for many years been subscribers of cellular telephone service provided by Verizon Wireless. Aff. of Larry Klayman (“Klayman Aff.”) (ECF No. 13-2) ¶ 3; Aff. of Charles Strange (“Strange Aff.”) (ECF No. 13-3) ¶¶ 2-3. They state that the alleged collection of information about (and contained in) their communications “impact[s]” their ability to communicate by telephone due to their “concern”
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that these communications will be “overheard” or “obtained” by the NSA and “used against” them in some manner. Klayman Aff. ¶ 10; Strange Aff. ¶ 11.
It cannot be assumed, solely on the basis that Plaintiffs are Verizon Wireless subscribers, that metadata about their calls have been produced to the NSA as part of the Section 215 program. Except for a single, now-expired Secondary Order issued in April 2013 to Verizon Business Network Services, Inc.—a separate business entity from Verizon Wireless, see, e.g., United States ex rel. Shea v. Verizon Bus. Network Servs., Inc., 904 F. Supp. 2d 28, 30 (D.D.C. 2012)—the Government has not declassified or otherwise acknowledged the identities of the carriers participating in the program, either now, or at any time in the past. Klayman Shea Decl. ¶ 8. The consequences of that gap in the record must befall Plaintiffs, as it is their “burden to prove their standing by pointing to specific facts, not the Government’s burden to disprove standing by revealing details” of its intelligence programs. Amnesty Int’l, 133 S. Ct. at 1149 n.4.
Even presuming that records of Plaintiffs’ calls have been collected under this program, Plaintiffs’ allegations of injury are speculative and conjectural, not actual or imminent, as Article III requires. Amnesty Int’l, 133 S. Ct. at 1147; see also DaimlerChrysler, 547 U.S. at 345; Whitmore v. Arkansas, 495 U.S. 149, 158 (1990). They express concern that information about their telephone calls allegedly collected by the NSA may be “used against” them in some unspecified manner, Klayman Aff. ¶ 10; Strange Aff. ¶ 11, but these unsubstantiated fears cannot support their standing in face of the established facts. Under current FISC orders, NSA personnel may only review records responsive to queries initiated using selectors that the FISC has approved based on reasonable, articulable suspicion that they are associated with specific foreign terrorist organizations. See supra at 6; Primary Order at 6–7; Klayman Shea Decl. ¶¶ 3-5. As a result, only a “tiny fraction” of the records is ever seen by any person. Shea Decl.
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¶ 23. Plaintiffs have presented no evidence that the NSA has accessed or reviewed records of Plaintiffs’ calls as a result of queries made under the “reasonable, articulable suspicion” standard (or otherwise). Thus, it is sheer speculation to suggest that records of calls to or from Plaintiffs either have been or ever will be retrieved or reviewed through queries of the database, much less “used against” them by the Government in some unexplained fashion.
The Supreme Court’s decision in Amnesty International addressed a similar standing question and establishes that Plaintiffs’ speculation concerning the scope and operation of the Section 215 program is insufficient to demonstrate their standing. In Amnesty International, various humans rights, labor, and media organizations challenged the constitutionality of the FISA Amendments Act of 2008, which expanded the Government’s authority to intercept the communications of non-U.S. persons located abroad. 133 S. Ct. at 1144. The organizations alleged that they interacted and engaged in sensitive communications with persons who were likely to be considered by the Government as potential terrorists, or persons of interest in terrorism investigations. See id. at 1145–46. They further alleged that they would suffer harms as a result of the Government surveillance program, including a compromised ability to “locate witnesses, cultivate sources, obtain information, and communicate confidential information,” and a need to undertake various costly measures to avoid possible surveillance. Id.
The Supreme Court, however, held that none of these alleged harms was sufficient to confer standing, because it was “speculative whether the Government will imminently target communications to which respondents are parties.” Id. at 1148. Rather, the Court held that the plaintiffs’ claimed injury rested on a “speculative chain of possibilities,” including “that the Government [would] target the communications of non-U.S. persons with whom they communicate,” that it would succeed in intercepting them, and that the plaintiffs would be parties
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to the particular communications the Government intercepts. Id. at 1148–50. So, too, here. The
idea that the course of unspecified Government counter-terrorism investigations would lead to
particular telephone numbers; that the FISC would approve use of these numbers to conduct
queries of the database, based on reasonable, articulable suspicion that they are associated with
foreign terrorist organizations; and that these queries would return records of Plaintiffs’ calls that
NSA analysts would in turn review (or misuse), is just as speculative as the allegations of harm that were rejected as insufficient in Amnesty International.4
3. The Court’s earlier ruling on standing should not be followed here.
Defendants recognize that in granting Plaintiffs’ motion for a preliminary injunction this
Court concluded that plaintiffs Klayman and Charles Strange have standing to challenge the
alleged collection and “analysis” of metadata about their telephone calls under the Section 215
program. Klayman, 957 F. Supp. 2d at 26–29. For the reasons that follow, Defendants
respectfully submit that this conclusion is not supportable and should not be followed here.
Turning first to the question of collection, as noted above Plaintiffs have presented no
evidence of specific facts demonstrating that records pertaining to their calls have been or will be
collected under the Section 215 telephony metadata program, other than the fact that they are
4 Plaintiffs’ related assertions that the Section 215 program has “directly and significantly impacted” their “ability to communicate via telephone,” and to engage in public advocacy, Klayman Aff. ¶¶ 9-10; Strange Aff. ¶¶ 11, 19-20, are simply reflections of their unsubstantiated fears that the NSA will misuse metadata about their calls, fears that are insufficient to establish a cognizable injury for purposes of standing. Amnesty Int’l USA, 133 S. Ct. at 1152 (holding that the costs allegedly incurred in efforts to avoid possible surveillance was the “product of” the plaintiffs’ “fear of surveillance” and that “such fear is insufficient to create standing”); Laird v. Tatum, 408 U.S. 1, 10, 14 (1972) (holding that “[a]llegations of a subjective ‘chill’” arising from plaintiffs’ knowledge of the existence of “a governmental investigative and data-gathering activity,” without “any specific action of the [Government] against them,” were “not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm”); United Presbyterian Church in the USA v. Reagan, 738 F.2d 1375, 1378 (D.C. Cir. 1984) (chilling effect produced by fear of surveillance is an insufficient basis for standing under Laird).
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Verizon Wireless subscribers. The Court inferred, however, from the Government’s explanation of the contact-chaining process, crossing multiple communications networks and time periods, that the NSA “must have collected metadata from Verizon Wireless . . . as well as AT&T and Sprint,” if the program were to serve its intended function. Klayman, 957 F. Supp. 2d at 26-27 (emphasis in original). The Court should no longer rely on that reasoning, for two reasons.
First, the record now contains specific evidence refuting the inference the Court made when ruling on Plaintiffs’ preliminary injunction motion. As explained in the Klayman Shea Declaration, although the Government has acknowledged that the Section 215 program is broad in scope and involves the aggregation of an historical repository of data collected from more than one provider, the program has never captured information on all (or virtually all) telephone calls made and/or received in the United States. Klayman Shea Decl. ¶ 8. As the FISC itself observed in a decision last year, “[t]he production of all call detail records of all persons in the United States has never occurred under [the Section 215 telephony metadata] program.” Aug. 29, 2013 FISC Op. at 4 n.5. It does not follow, therefore, that the NSA “must” collect metadata from all of the three “largest carriers” in order to perform its function, as the Court surmised, Klayman, 957 F. Supp. 2d at 27, and collection of metadata about Plaintiffs’ calls cannot be presumed on the basis of such an assumption.
Second, the Court should not continue to rely on its prior standing analysis because, Defendants respectfully submit, it is inconsistent with the Supreme Court’s decision in Amnesty International. There the Court insisted that plaintiffs seeking judicial review of actions taken by the Government in the field of intelligence-gathering “set forth . . . specific facts demonstrating” that communications to which they were parties would be targeted for interception, and because the plaintiffs failed to do so, the Court dismissed their claims for lack of standing. 133 S. Ct. at
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1149. Notably, the majority declined to follow the approach advocated by the dissenting Justices, who, relying on “commonsense inferences,” found a “very high likelihood” that the Government would intercept at least some of the plaintiffs’ communications under the challenged statute. Id. at 1157 (Breyer, J., dissenting). The dissent based its conclusion on a combination of various facts, including that the plaintiffs regularly engaged in the type of electronic communications—with and about suspected foreign terrorists, their families and associates, and their activities—that the Government was authorized and highly motivated, for counter-terrorism purposes, to intercept, and that the record showed the Government had in fact intercepted on thousands of occasions in the past. Id. at 1156–59.5
Akin to the dissent’s approach in Amnesty International, this Court previously attempted to draw an inference, based on unclassified information about the general operation of the Section 215 program, that the NSA must have collected metadata about the Plaintiffs’ calls (or, at the very least, metadata from Plaintiffs’ provider), without the benefit of facts specific to Plaintiffs demonstrating that to be the case. The decision in Amnesty International teaches, however, that relying solely on inferences drawn from limited information about the scope and operation of the Government’s intelligence-gathering activities, is not a sufficiently “rigorous” basis on which to make a determination of standing, at least in cases such as this where litigants seek to call the constitutionality of those activities into question. See 133 S. Ct. at 1147. Rather, to establish Plaintiffs’ standing to challenge the acquisition of telephony metadata under the Section 215 program, the record must contain evidence of specific facts demonstrating that
5 The dissent also observed that the “Government [did] not deny that it ha[d] both the motive and the capacity to listen to communications of the kind described by [the] plaintiffs.” 133 S. Ct. at 1159–60.
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information about their communications has been or imminently will be collected under the program. See id. at 1149. As discussed above, Plaintiffs have presented no such evidence.
Defendants respectfully submit that the Court’s standing analysis regarding the query process is also inconsistent with the available facts, and precedent, and should not be followed here. In ruling on Plaintiffs’ request for preliminary relief, the Court concluded that Plaintiffs also have standing to challenge alleged analysis of metadata pertaining to their calls, on the basis that when the NSA queries the database, “its system must necessarily analyze metadata for every phone number in the database by comparing the foreign target number against all of the stored call records to determine which U.S. phones, if any, have interacted with the target number.” 957 F. Supp. 2d at 28. The Court concluded that this use of the NSA’s Section 215 database “‘implicates the Fourth Amendment each time a government official monitors it,’” in the same manner as Government monitoring of the hypothetical home video camera discussed in Johnson v. Quander, 440 F.3d 489 (D.C. Cir. 2006). Id. at 28-29 (quoting Johnson, 440 F.3d at 499). The analogy, however, is not apt.
The Court of Appeals explained in Johnson that an in-home video camera raises Fourth Amendment concerns each time it is monitored by a government official because, each time it is so monitored, the camera reveals new and otherwise private information about the homeowner to that official. 440 F.3d at 498–99. The same cannot be said regarding queries of the bulk telephony metadata obtained by the NSA under Section 215. As discussed above, when the NSA runs queries of the database, the analysts see no metadata associated with anyone’s calls, and thus, the analysts learn no information about the communications of any individuals, unless their telephone numbers (or other identifiers) fall within two (previously three) “hops” of a suspected terrorist selector. See Shea Decl. ¶¶ 22-24; Klayman Shea Decl. ¶¶ 4-5. NSA’s queries are more
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akin to the sniff of a narcotics-detection dog, which “discloses only the presence or absence of narcotics” in a person’s luggage, and “does not expose noncontraband items that otherwise would remain hidden from public view, as does . . . an officer’s rummaging through the [luggage’s] contents.” See United States v. Place, 462 U.S. 696, 707 (1983) (holding that a canine sniff of luggage is not a search). See also United States v. Jacobsen, 466 U.S. 109, 123 (1984) (“A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy.”).6 Therefore, absent some indication that NSA analysts conducting queries of the database, using selectors authorized by the FISC under the “reasonable, articulable suspicion” standard, have retrieved and reviewed records containing metadata associated with Plaintiffs’ calls—of which there is no evidence in the record—Plaintiffs cannot demonstrate that the query process itself constitutes an “invasion of a legally protected interest,” Defenders of Wildlife, 504 U.S. at 560 (emphasis added), even assuming, contra Smith v. Maryland, 442 U.S. 735 (1979), that Plaintiffs have a protected privacy interest in telephony metadata. See Horton v. California, 496 U.S. 128, 142 n.11 (1990) (government’s acquisition of an item without examining its contents “does not compromise the interest in preserving the privacy of its contents”); United States v. VanLeeuwen, 397 U.S. 249,
6 The Court’s analogy of a library patron searching for every book that cites Battle Cry of Freedom, Klayman, 957 F. Supp. 2d at 28 n.38, is also distinguishable from the NSA’s query process in the same critical respect. As described in the Court’s hypothetical, to find every book in the library citing Battle Cry of Freedom, the patron herself reviews the contents of each book in the library’s collection. In contrast, NSA analysts who query the database see no information contained in any of the call detail records stored in the database, except for the tiny fraction containing metadata within two hops of the suspected terrorist selector—as if the patron saw only those few books in the library that actually contain references to Battle Cry of Freedom.
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253 (1970) (defendant’s interest in the privacy of his detained first-class mail “was not disturbed or invaded” until the Government opened the packages).7
Plaintiffs have presented no evidence of specific facts demonstrating with the rigor
required in this context, Amnesty International, 133 S. Ct. at 1147, 1149, that they have standing
to contest the NSA’s collection or querying of bulk telephony metadata under Section 215.
Plaintiffs’ motion for summary judgment must therefore be denied.
B. THE SECTION 215 TELEPHONY METADATA PROGRAM DOES NOT VIOLATE PLAINTIFFS’ FOURTH AMENDMENT RIGHTS.
Even if Plaintiffs had established their standing, the legal foundation of their Fourth
Amendment claim—that they have a reasonable expectation of privacy in the numbers dialed to
connect a telephone call (and other metadata) that is protected by the Fourth Amendment—is
foreclosed by the controlling and squarely applicable authority of Smith v. Maryland, 442 U.S.
735 (1979). That authority, and the third-party doctrine on which it is based, remain the law
today. The factual differences between Smith and the telephony metadata program are
immaterial to the reasoning of Smith, as the FISC recently explained in an opinion rejecting the
Court’s reasons in its preliminary injunction ruling, 957 F. Supp. 2d at 32-37, for declining to
follow Smith. In re Application of the FBI for an Order Requiring the Prod. of Tangible Things,
7 The Court described the above-quoted language from Horton and VanLeeuwen as dicta, see Klayman, 957 F. Supp. 2d at 29 n.40, but they are in fact statements of the law. See, e.g.,United States v. Clutter, 674 F.3d 980, 984 (8th Cir. 2012) (seizure of computers, subsequently found to contain child pornography, did not implicate Fourth Amendment privacy interests at time seizure occurred); United States v. Banks, 3 F.3d 399, 401-02 (11th Cir. 1993) (“no Fourth Amendment privacy interest in first-class mail is invaded by detaining such mail . . . until a search warrant can be obtained,” because “the privacy interest in the packages” was not disturbed); United States v. Licata, 761 F.2d 537, 541 (9th Cir. 1985) (seizure of a closed container “affects only the owner’s possessory interests and not the privacy interests vested in the contents”). See also Texas v. Brown, 460 U.S. 730, 748-49 (1983) (Stevens, J., concurring in the judgment) (noting that seizure of a locked suitcase does not alone “compromise the secrecy of its contents” or “implicate any privacy interests”).
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Dkt. No. BR14-01, Op. and Order, 21-22 (FISC Mar. 20, 2014) (“Mar. 20, 2014 FISC Order)” (Exhibit B, hereto); see also ACLU v. Clapper, 959 F. Supp. 2d 724, 752 (S.D.N.Y. 2013); United States v. Moalin, 2013 WL 6079518, at *5–8 (S.D. Cal. Nov. 18, 2013). Even if there were a reasonable expectation of privacy in telephony metadata, contrary to Smith, Plaintiffs have not alleged an invasion of that interest, and the Section 215 telephony metadata program would still pass constitutional muster as it is reasonable under the standard applicable to searches that serve special needs of the Government. For these reasons, Plaintiffs’ motion for entry of summary judgment on their Fourth Amendment claim must be denied.
1. Plaintiffs have no protected privacy interest in telephony metadata. The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Government’s acquisition of bulk telephony metadata pursuant to orders of the FISC does not constitute a “seizure” of Plaintiffs’ records, because the orders are directed to telecommunications service providers, not to subscribers, and direct the production of what are indisputably the providers’ own business records. See Shea Decl. ¶ 18; Smith, 442 U.S. at 741 (because the government ascertained the telephone numbers dialed from a telephone by installing equipment on telephone company property, the petitioner could not claim that his property was invaded); United States v. Miller, 425 U.S. 435, 440-41 (1976) (rejecting a bank depositor’s Fourth Amendment challenge to a subpoena of bank records because, inasmuch as the bank was a party to the transactions, the records belonged to the bank); ACLU, 959 F. Supp. 2d at 751 (call detail records obtained under the Section 215 telephony metadata program are created and maintained by the telecommunications providers, not the plaintiff subscribers, and are not, therefore, the plaintiff’s call records).
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The Fourth Amendment’s proscription against unreasonable “searches” was understood “for most of our history … to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.” United States v. Jones, 132 S. Ct. 945, 949-50 (2012). Since the decision in Katz v. United States, 389 U.S. 347 (1967), however, it has been understood that a Fourth Amendment “search” also takes place when governmental investigative activities “violate a person’s ‘reasonable expectation of privacy.’” Jones, 132 S. Ct. at 949-50 (quoting Katz, 389 U.S. at 360). In Katz, the Court held that the Government’s interception of the contents of a telephone conversation occurring in a public telephone booth constituted a search under the Fourth Amendment. The Supreme Court squarely held in Smith, however, that individuals have no reasonable expectation of privacy in the mere telephone numbers they dial because they knowingly give that information to telephone companies when they dial the numbers; the government’s acquisition of such numbers did not therefore constitute a search under the Fourth Amendment. Smith, 442 U.S. at 741-46.
In Smith, the police requested (without a warrant or court order) that the telephone company install a pen register device at its central offices to record the numbers dialed from a robbery suspect’s (Smith’s) home phone. Smith, 442 U.S. at 737. After Smith was arrested, he sought to suppress evidence derived from the pen register as a violation of his Fourth Amendment rights. Contrasting the collection of the numbers dialed with the acquisition of the contents of communications at issue in Katz, id. at 741, the Court held that even if Smith harbored a subjective expectation that the phone numbers he dialed would remain private, that expectation was not reasonable. The Court explained that it “consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Id. at 743-44 (citing, inter alia, Miller, 425 U.S. at 441-43 (no reasonable expectation of privacy
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in financial records a depositor voluntarily provided to his bank)). Telephone users “typically
know that they must convey numerical information to the phone company; that the phone
company has facilities for recording this information; and that the phone company does in fact
record this information for a variety of legitimate business purposes.” Id. at 743. By using his
phone, Smith “voluntarily conveyed numerical information to the telephone company and
‘exposed’ that information to its equipment in the ordinary course of business,” and therefore
“assumed the risk that the company would reveal to police the numbers he dialed.” Id. at 744;
see also id. at 745; Miller, 425 U.S. at 443 (“depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.”).8
Smith controls the instant case because the pen-register metadata at issue in Smith are
“indistinguishable” from the non-content telephony metadata at issue in the Section 215 program,9 and its rationale is fully applicable. Mar. 20, 2014 FISC Order at 11.
8 The third-party doctrine has consistently been applied to call detail records like the business records at issue here. See, e.g., Reporters Comm. for Freedom of the Press v. AT&T, 593 F.2d 1030, 1043-46 (D.C. Cir. 1978); United States v. Baxter, 492 F.2d 150, 167 (9th Cir. 1973); United States v. Fithian, 452 F.2d 505, 506 (9th Cir. 1971); United States v. Doe, 537 F. Supp. 838, 839-40 (E.D.N.Y. 1982). See also U.S. Telecom Ass’n v. FCC, 227 F.3d 450, 454 (D.C. Cir 2000) (“telephone numbers are not protected by the Fourth Amendment”) (citing Smith). Courts have also applied Smith in the Internet age to find no reasonable expectation of privacy in email “to/from” and Internet protocol (“IP”) addressing information, United States v. Forrester, 512 F.3d 500, 510-11 (9th Cir. 2008), and in text message addressing information. Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 905 (9th Cir. 2008), rev’d on other grounds, 130 S. Ct. 2619 (2010).
9 Just as Plaintiffs voluntarily turn over the phone numbers they dial to their phone companies, they voluntarily turn over the dates, times, and durations of their calls; the telephone numbers from which incoming calls originate are also not protected by the Fourth Amendment. See United States v. Reed, 575 F.3d 900, 914 (9th Cir. 2009); United States Telecom Ass’n, 227 F.3d at 454, 459. Other communications routing information collected under the program, such as trunk identifiers, is information collected or generated by the phone companies themselves. See Primary Order at 3 n.1.
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2. Smith is not distinguishable from this case. The Government Defendants recognize that this Court concluded otherwise when it ruled on Plaintiffs’ motion for a preliminary injunction, but respectfully submit for the reasons explained herein that Smith cannot be distinguished on the grounds the Court cited. First, the Section 215 telephony metadata program cannot be distinguished from Smith based on the Government’s more extensive collection and longer retention of metadata pertaining to each individual’s calls. See Klayman, 957 F. Supp. 2d at 32. As the FISC observed, Smith reaffirmed that the third-party disclosure doctrine applies regardless of the disclosing person’s assumptions or expectations as to what will be done with the information afterward, “‘even if the information is revealed on the assumption that it will be used only for a limited purpose.’” Mar. 20, 2014 FISC Order at 14-15, quoting Smith, 442 U.S. at 744; see also Miller, 425 U.S. at 443; SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 743 (1984) (“It is established that, when a person communicates information to a third party even on the understanding that the communication is confidential, he cannot object if the third party conveys that information or records thereof to law enforcement authorities.”). Significantly Miller, on whose central holding Smith relied, upheld in the face of a Fourth Amendment challenge the compelled production of almost four months of a person’s bank records—copies of checks, deposit slips, financial statements, monthly statements—records that are more substantive and personal in nature than phone numbers, and more likely to reveal details about an individual’s life than years’ worth of telephony metadata. Mar. 20, 2014 FISC Order at 21-22.10
10 As the FISC also pointed out, “a telephone user who is making a call fully divulges to the phone company the numbers he dials,” unlike the bus passenger in Bond v. United States, 529 U.S. 334, 338 (2000), cited in Klayman, 957 F. Supp. 2d at 33 n.47, who sought to preserve the privacy of the contents of his carry-on bag by using an opaque bag and placing that bag directly above his seat. Mar. 20, 2014 FISC Order at 16 n.8.
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Thus, under the third-party doctrine that the Supreme Court has consistently applied in Smith and other cases, see Mar. 20, 2014 FISC Order at 15-16, “[i]f a person who voluntarily discloses information can have no reasonable expectation concerning limits on how the recipient will use or handle the information, it necessarily follows that he or she also can harbor no such expectation with respect to how the Government will use or handle the information after it has been divulged by the recipient … regardless of how it might be later used by the recipient or the Government.” Id. at 17. The fact that the Government here acquires metadata pertaining to a greater number of each individual’s calls, and retains the data for a much longer period, does not meaningfully differentiate the Section 215 program from Smith.
Indeed, while the volume of data collected and retained about each individual’s phone calls is greater here than in Smith, the privacy concerns were actually greater in Smith than here. In Smith, the police targeted the phone calls of a single, known individual (Smith), in fact examined the data gathered to ascertain whether he had contacted another known individual (his victim), and used that information to arrest and prosecute him. 442 U.S. at 737. The Court nonetheless ruled that Smith had no reasonable expectation of privacy in telephone numbers he dialed. Id. at 741–42. Here, by contrast, Plaintiffs can point to no equivalent intrusion on their privacy. The FISC orders here direct specific telecommunications companies to provide the Government with the companies’ own business records, in which Plaintiffs have no reasonable expectation of privacy. Nor have Plaintiffs shown that any metadata of their phone calls have ever been examined by NSA analysts. As discussed above, the NSA can only query the database of call detail records with a now judicially-approved suspected-terrorist selector and can only review metadata within two steps of that suspected-terrorist selector. Even if any allegedly collected records of Plaintiffs’ calls have been among the tiny fraction of the records ever
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reviewed by NSA analysts, the call detail records collected by the NSA reveal only such information as phone numbers, dates and times, and routing information, but not the names, addresses, or other identifying information of parties to the calls. See Mar. 20, 2014 FISC Order at 22 (“it must be emphasized that the non-content telephony metadata at issue here is particularly limited in nature and subject to strict protections that do not apply to run-of-the-mill productions of similar information in criminal investigations.”). Plaintiffs can complain of no putative invasion of privacy of the kind experienced by the petitioner in Smith.
Second, and for the same reasons, perceived distinctions between the relationship of the government with the telephone company in Smith, and the relationship of the Government here with the telecommunications companies that participate in the program, Klayman, 957 F. Supp. 2d at 32-33, are simply irrelevant to whether a search occurred. Mar. 20, 2014 FISC Order at 17–18. Nor is there support in the record for the conclusion that the telecommunications companies that receive Section 215 orders are collecting telephony metadata for law enforcement purposes, “operat[ing] what is effectively a joint intelligence-gathering operation with the Government.” Klayman, 957 F. Supp. 2d at 33. Rather, “pursuant to the FISC’s orders, telecommunications service providers turn over to the NSA business records that the companies already generate and maintain for their own pre-existing business purposes (such as billing and fraud prevention).” Shea Decl. ¶ 18. See also Mar. 20, 2014 FISC Order at 18 n.9 (pointing out that this Court acknowledged that “the information produced to NSA consists of ‘telephony metadata records . . . which the companies create as part of their business of providing telecommunications services to customers.’”) (quoting 957 F. Supp. 2d at 15).
Third, the Court also emphasized that the telephony metadata program allegedly involves the collection of data “on hundreds of millions of people.” See Klayman, 957 F. Supp. 2d at 33
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& n.48, 34, 36. That observation “is misplaced under settled Supreme Court precedent.” Mar. 20, 2014 FISC Order at 19–20. Fourth Amendment rights “are personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched.” Steagald v. United States, 451 U.S. 204, 219 (1981); accord Rakas v. Illinois, 439 U.S. 128, 133–34 (1978). No Fourth Amendment interest of Plaintiffs is implicated, therefore, by the fact that the metadata of many other individuals’ calls are collected as well as (allegedly) their own. See United States v. Dionisio, 410 U.S. 1, 13 (1973) (where single grand jury subpoena did not constitute an unreasonable seizure, it was not “rendered unreasonable by the fact that many others were subjected to the same compulsion”); In re Grand Jury Proceedings, 827 F.2d 301, 305 (8th Cir. 1987) (“[T]he fourth amendment does not necessarily prohibit the grand jury from engaging in a ‘dragnet’ operation.”); ACLU, 959 F. Supp. 2d at 752 (“The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search.”); United States v. Rigmaiden, 2013 WL 1932800, at *13 (D. Ariz. May 8, 2013) (Government did not violate defendant’s Fourth Amendment rights by collecting a high volume (1.8 million) of IP addresses); Aug. 29, 2013 FISC Op. at 8–9.
Finally, the Court also suggested that individuals’ decisions to voluntarily convey and expose their telephone numbers to their phone companies are a necessity of modern life that did not exist in 1979 when Smith was decided. See Klayman, 957 F. Supp. 2d at 36. The year 1979 was, of course, not that long ago, and the use of banks, credit cards, telephones, and the like, to conduct the affairs of life was clearly prevalent at that time, as both Smith and Miller demonstrate, and as the dissent in Smith expressly argued. See 442 U.S. at 749–50 (Marshall, J., dissenting). See also ACLU, 959 F. Supp. 2d at 749 n.16 (citing cases prior to 1979 holding no
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Fourth Amendment privacy interest in various information provided to third parties). It is true that cell phones did not exist in 1979, and that cell phones are used for purposes other than making telephone calls (such as accessing the Internet, taking pictures, and text messaging). See Klayman, 957 F. Supp. 2d at 34-36. “But none of these additional functions generates any information that is being collected by NSA as part of the telephony metadata program, which . . . involves only non-content records concerning the placing and routing of telephone calls. Accordingly, such changes are irrelevant . . . .” Mar. 20, 2014 FISC Order at 19. See also ACLU, 959 F. Supp. 2d at 752 (“Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones.”); Klayman, 957 F. Supp. 2d at 35 (acknowledging that the types of information acquired under the telephony metadata program are “limited” to “phone numbers dialed, date, time, and the like.”).
Nor does Jones provide any basis for departing from the controlling authority of Smith. See Klayman, 957 F. Supp. 2d at 36. As the FISC explained, the majority opinion in Jones, in holding that an individual has a protected Fourth Amendment interest against the police attaching a GPS tracker to his car, relied on the “physical intrusion” the tracker effected and “declined to address the question whether use of the GPS device, without the physical intrusion, impinged upon a reasonable expectation of privacy . . . .” Mar. 20, 2014 FISC Order at 24-25.
This Court placed reliance on Justice Sotomayor’s concurring opinion in Jones for the proposition that “the metadata from each person’s phone ‘reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.’” Klayman, 957 F. Supp. 2d at 36 (citing Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring)).11 But Smith itself recognized
11 The Jones majority opinion is, of course, controlling, and did not, as explained above, undermine the vitality of Smith in any way. “And the Supreme Court has instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by
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that a list of telephone numbers dialed “could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person’s life,” Smith, 442 U.S. at 748 (Stewart, J., dissenting), and yet the Court ruled that there is no reasonable expectation of privacy in telephone numbers dialed. Moreover, this potential is in fact less of a concern here, where the NSA does not know to whom the phone numbers collected under the telephony metadata program belong; where analysts can only find out that information for phone numbers or other metadata that result from authorized queries made with selectors approved by the FISC under the reasonable, articulable suspicion standard; and where Plaintiffs offer no proof that any metadata of their calls have been reviewed. In contrast, the police in Smith knew Smith’s identity when the pen register identified the phone numbers he dialed. Similarly, in Jones, law enforcement officers attached a GPS device to a single, known person’s vehicle, recorded the vehicle’s locations over a period of time, and used that information to prosecute him.12
* * * Thus, Smith compels the conclusion that the alleged acquisition of metadata records about Plaintiffs’ telephone calls does not constitute a search for purposes of the Fourth Amendment, thereby ending the Fourth Amendment inquiry. But even if the Court concluded, contrary to Smith, that Plaintiffs have a reasonable expectation of privacy in metadata allegedly collected about their phone calls, they point to no invasion of that interest that would rise to the level of a Fourth Amendment search.
later cases” (which has not occurred here). ACLU, 959 F. Supp. 2d at 752 (citing Agostini v. Felton, 521 U.S. 203, 237 (1997)).
12 Although Justice Sotomayor also stated in her concurring opinion that it may be necessary to reconsider the third-party doctrine, which she posited is ill-suited to the digital age, she expressly concluded that “[r]esolution of these difficult questions in this case is unnecessary, however, because the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision.” Jones, 132 S. Ct. at 957. See also Mar. 20, 2014 FISC Order at 28.
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Call detail records are not “searched” in a constitutional sense, see Klayman, 957 F. Supp. 2d at 29–30, every time an electronic query of the database is performed. When such queries are conducted, the only information made available for review by human beings are the records within two hops of the suspected terrorist selectors used to initiate the queries. NSA analysts receive no information about the calls of any other individuals. See Shea Decl. ¶¶ 20– 26. Thus, as discussed above, the query process is analogous, in Fourth Amendment terms, to a canine sniff to ascertain “the presence or absence of narcotics” in a person’s luggage, which the Supreme Court has held does not constitute a search because it “does not expose noncontraband items that otherwise would remain hidden from public view.” Place, 462 U.S. at 707. See also Jacobsen, 466 U.S. at 123 (chemical test that only reveals to law enforcement officials whether a particular substance is cocaine does not compromise any legitimate interest in privacy).
Because Plaintiffs have not presented evidence that information associated with any of their phone calls has been reviewed by analysts in response to queries of the bulk telephony metadata collected by the NSA, they cannot maintain that NSA queries of the database intrude upon any putative expectation of privacy they claim to have in that information. For this reason as well, Plaintiffs have not been subjected to a search for purposes of the Fourth Amendment, once again bringing the Fourth Amendment inquiry to a close.
3. The telephony metadata program is reasonable. Even if the operation of the Section 215 telephony metadata program results in a “search” as to Plaintiffs, the Fourth Amendment bars only “unreasonable” searches and seizures. The Section 215 telephony metadata program is reasonable under the standard applied to assess suspicionless searches that serve special government needs. As the Supreme Court has explained, “where a Fourth Amendment intrusion serves special governmental needs, beyond the
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normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.” NTEU v. Von Raab, 489 U.S. 656, 665–66 (1989). More specifically, the scope of the privacy interest and the character of the intrusion are balanced against the nature of the government interests to be furthered, the immediacy of the government’s concerns regarding those interests, and the efficacy of the program in addressing those concerns. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 658, 660, 662-63 (1995).
The telephony metadata program clearly serves special governmental needs above and beyond normal law enforcement. The undisputed purpose of the telephony metadata program is identifying unknown terrorist operatives and preventing terrorist attacks—forward-looking goals that fundamentally differ from most ordinary criminal law enforcement, which typically focuses on solving crimes that have already occurred, not preventing unlawful activity and protecting public safety and national security. See, e.g., United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 322-23 (1972); In re Sealed Case, 310 F.3d 717, 746 (FISC-R 2002).
If, contrary to Smith, Plaintiffs could be said to have any Fourth Amendment privacy interest that is implicated by the mere acquisition of non-content telephony metadata, that interest would be minimal. Moreover, the intrusion on that interest would be mitigated still further by the statutorily mandated restrictions on review and dissemination of the metadata that are written into the FISC’s orders. Primary Order at 4-14. See also Maryland v. King, 133 S. Ct. 1958, 1979 (2013); Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 833 (2002); Vernonia, 515 U.S. at 658. As noted above, the Government Defendants respectfully disagree with the Court’s conclusion that Plaintiffs have “a very significant
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expectation of privacy” in telephony metadata, Klayman, 957 F. Supp. 2d at 39, or, absent evidence that data pertaining to their calls have ever been reviewed by NSA analysts, that the program has infringed on any such expectation.
On the other side of the balance, the acquisition and review of telephony metadata promote overriding public interests. The interest in identifying and tracking terrorist operatives for the purpose of preventing terrorist attacks is a national security concern of overwhelming importance. See Haig v. Agee, 453 U.S. 280, 307 (1981) (“[N]o governmental interest is more compelling than the security of the Nation.”) (internal quotation marks omitted); In re Directives, 551 F.3d 1004, 1012 (FISC-R 2008) (Government interest in national security “is of the highest order of magnitude.”); ACLU, 959 F. Supp. 2d at 754. That interest cannot be as effectively achieved by conditioning access to telephony metadata on individualized suspicion, because such a requirement would not permit the type of historical analysis, contact-chaining, and timely identification of terrorist contacts that the program makes possible. See Shea Decl. ¶¶ 44–63; Aug. 29, 2013 FISC Op. at 20-22; ACLU, 959 F. Supp. 2d at 747–48. Imposing an individualized suspicion requirement on this program, is not only “impracticable” but may also be entirely infeasible. Von Raab, 489 U.S. at 665–66.
The Government also respectfully disagrees with the Court’s conclusions regarding the efficacy of the program. Klayman, 957 F. Supp. 2d at 40-41. As an initial matter, the ability to quickly analyze past connections and chains of communication to determine terrorist connections can be critical in the midst of an active terrorism investigation. See id. at 39-40 (“A closer examination of the record . . . reveals that the Government’s interest is a bit more nuanced—it is not merely to investigate potential terrorists, but rather, to do so faster than other investigative methods might allow.”). Moreover, as the United States District Court for the Southern District
35

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of New York found, “[t]he effectiveness of bulk telephony metadata collection cannot be
seriously disputed. Offering examples is a dangerous stratagem for the Government because it
discloses means and methods of intelligence gathering. Such disclosures can only educate
America’s enemies. Nevertheless, the Government has acknowledged several successes in
Congressional testimony and in declarations that are part of the record in this case.” ACLU, 959
F. Sup. 2d at 755.
CONCLUSION
For the reasons stated above, Plaintiffs’ motion for summary judgment should be denied.
Dated: May 9, 2014
Respectfully Submitted,
STUART F. DELERY Assistant Attorney General JOSEPH H. HUNT Director, Federal Programs Branch ANTHONY J. COPPOLINO Deputy Branch Director
/s/ James J. Gilligan JAMES J. GILLIGAN Special Litigation Counsel james.gilligan@usdoj.gov MARCIA BERMAN Senior Trial Counsel BRYAN DEARINGER RODNEY PATTON JULIA BERMAN Trial Attorneys
U.S Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 6102 Washington, D.C. 20001 Phone: (202) 514-3358 Fax: (202) 616-8470
Counsel for the Government Defendants
36

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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

LARRY KLAYMAN, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

BARACK OBAMA, President of the

)

United States, et al.,

)

)

Defendants.

)

Civil Action No. 1:13-cv-0851-RJL

DECLARATION OF TERESA H. SHEA, SIGNALS INTELLIGENCE DIRECTOR, NATIONAL SECURITY AGENCY
I, Teresa H. Shea, for my declaration in the above-captioned case, do hereby state and declare as follows:
I. I am the Director of the Signals Intelligence Directorate (SID) at the National Security Agency (NSA), an intelligence agency within the Department of Defense. I am responsible for, among other things, protecting NSA Signals Intelligence (SIGINT) activities, sources, and methods against unauthorized disclosures.
2. I submit this declaration to discuss the transition ordered by the President to the NSA's bulk telephony metadata program (carried out under Section 215 of the USA-PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001)) to preserve the program's needed capabilities while enhancing the program's protections against the potential for abuse. I also address certain speculation about the program's scope. My statements herein are based upon my personal knowledge ofSIGINT collection and NSA operations, and the information available to me in my capacity as SIGINT Director.

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TRANSITION TO THE SECTION 215 TELEPHONY METADATA PROGRAM ORDERED BY THE PRESIDENT
3. On January 17, 2014, following a review of the Nation's Signals Intelligence programs, the President announced a series of reforms designed to preserve the Intelligence Community's capabilities to detect and prevent threats by foreign terrorist organizations through the penetration of their communications, while enhancing protections for individual privacy as intelligence capabilities developed to meet the threat of international terrorism continue to advance. A transcript of the President's remarks is available at http://www.whitehouse.gov/ thepress-office/2014/01I17 /remarks-president -review-signals-intelligence.
4. Regarding the Section 215 telephony metadata program, the President ordered a transition during which the Intelligence Community and the Attorney General were to develop options for a new approach that can match the program's capabilities without the Government continuing to hold the bulk telephony metadata. The President also directed: (1) that the Government work with the Foreign Intelligence Surveillance Court (FISC) to require, during the transition period, advance findings by FISC judges of "reasonable, articulable suspicion" that selectors (such as telephone numbers) used to query the database are associated with foreign terrorist organizations (except in emergency situations, in which case FISC approval is to be sought retrospectively); and (2) that query results available to NSA analysts be limited to metadata within two "hops" (degrees of contact) of suspected terrorist selectors, not three as previously allowed.
5. The Government (including NSA) took immediate steps to put these two changes into effect. Among these steps, the Govenunent filed a motion with the FISC to amend its January 3, 2014, Primary Order approving the Section 215 telephony metadata program. The Government's motion proposed two changes to the previously approved minimization procedures: First, the Government proposed a change that (except in cases of emergency) would
2

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require it to obtain permission from the FISC to use a proposed selector as a "seed" to query the telephony metadata, based on a finding by the FISC that the selector to be used satisfies the "reasonable, articulable suspicion" standard. Second, the Government proposed limiting the results of each query to metadata that are within two, rather than three, "hops" of the approved selector used to conduct the query. On February 5, 2014, the FISC granted the Government's motion to implement these two changes to the Section 215 program. In re Application ofthe FBI for an Order Requiring the Production a/Tangible Things from [Redacted], Dkt. No. BR14-01 (F.I.S.C. Feb. 5, 2014) (publicly released, unclassified version) (Enclosure A).
6. On March 27, 2014, the President announced that, after having considered options presented to him by the Intelligence Community and the Attorney General, he will seek legislation to replace the Section 215 telephony metadata program. Statement by the President on the Section 215 Bulk Metadata Program, http://www.whitehouse.gov/the-press-office/2014/ 03/27/statement-president-section-215-bulk-metadata-program. The President stated that his goal is to "establish a mechanism to preserve the capabilities we need without the Government holding this bulk metadata" to "give the public greater confidence that their privacy is appropriately protected," while maintaining the intelligence tools needed "to keep us safe." Instead of the Government obtaining business records of telephony metadata in bulk, the President proposed that telephony metadata should remain in the hands of telecommunications companies. The President stated that "legislation will be needed to permit the Government to obtain information with the speed and in the manner that will be required to make this approach workable." Under such legislation, the Government would be authorized to obtain telephony metadata from the companies pursuant to individualized orders from the FISC. The President explained that, in the meantime, the Government would seek from the FISC a 90-day
3

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reauthorization of the existing Section 215 program, with the two modifications already

approved by the FISC in February.

7. On March 28, 2014, the FISC issued a new Primary Order approving the

Government's application to reauthorize the program, with the modifications described above,

for approximately another 90 days (through June 20, 2014). The FISC's action brought to 37 the

number of times the FISC (by 16 different judges) has authorized the NSA's bulk collection of

telephony metadata under Section 215 of the USA-PATRIOT Act.

SCOPE OF THE SECTION 215 TELEPHONY METADATA PROGRAM

8. Although there has been speculation that the NSA, under this program, acquires

metadata relating to all telephone calls to, from, or within the United States, that is not the case.

The Government has acknowledged that the program is broad in scope and involves the

collection and aggregation of a large volume of data from multiple telecommunications service

providers, but as the FISC observed in a decision last year, the program has never captured

information on all (or virtually all) calls made and/or received in the U.S. See In re Application

ofthe FBI/or an Order Requiring the Production of Tangible Things from [Redacted], Dkt. No.

BRB-109, Amended Mem. Op. at 4 n.5 (F.I.S.C. Aug. 29, 2013) (public unclassified version)

("The production of all call detail records of all persons in the United States has never occurred

under this program."). And while the Government has also acknowledged that one provider was

the recipient of a now-expired April 25, 2013, Secondary Order from the FISC, the identities of

the carriers participating in the program (either now, or at any other time) otherwise remain

classified.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on: May I, 2014

t(.~

Teresa H. Shea

Signals Intelligence Director

National Security Agency

4

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EXHIBIT B

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Case 1:13-cv-00851-RJL Document 117-3 Filed 05/09/14 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

LARRY KLAYMAN, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No.

)

1:13-cv-0851-RJL

BARACK OBAMA, President of the

)

United States, et al.,

)

)

Defendants.

)

_______________________________________)

GOVERNMENT DEFENDANTS’ RESPONSE TO STATEMENT OF MATERIAL FACTS IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56 and Local Civil Rule 7(h), the Government Defendants1 hereby respond to Plaintiffs’ Statement of Material Facts in Support of

Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 108-1) as follows:

1. On June 5, 2013, The Guardian, a British newspaper, reported the first materials leaked by former NSA contract employee Edward Snowden that revealed the existence of U.S. government intelligence collection and surveillance programs on American citizens, regardless of any probable cause they were in communication with terrorists. See Greenwald, NSA collecting phone records of millions of Verizon customers daily, GUARDIAN (London), June 5, 2013; Leon Memorandum Opinion, dated Dec. 16, 2013 (“Mem. Op.”) at 6.
RESPONSE: Undisputed, but not material, that The Guardian published the referenced
article, to which the Court is respectfully referred for a complete and accurate statement of its
contents. Otherwise the facts asserted in this paragraph, and those stated in the cited article, are

1 The Government Defendants are defendants Barack Obama, President of the United States, Eric Holder, Attorney General of the United States, Admiral Michael S. Rogers, Director of the National Security Agency (NSA), , insofar as they are sued in their official capacities, together with defendants NSA and the United States Department of Justice (DOJ). Pursuant to Federal Rule of Civil Procedure 25(d), Admiral Rogers is automatically substituted as an official-capacity defendant to this action, but not in his individual capacity, in place of former NSA Director General Keith Alexander.

Case 1:13-cv-00851-RJL Document 117-3 Filed 05/09/14 Page 2 of 12
disputed on the ground that they are based on, or constitute, hearsay inadmissible for the truth of the matters stated therein.
2. The Guardian’s report disclosed a secret Foreign Intelligence Surveillance Court (“FISC”) order, dated April 25, 2013, that required Verizon Business Network Services to produce to the NSA on “an ongoing daily basis . . . all call detail records or ‘telephony metadata’ create by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” Secondary Order, In re Application of the [FBI] for an Order Requiring the Production of Tangible Things from Verizon Business Network Services, Inc. on Behalf of MCI Communication Services, Inc. d/b/a/ Verizon Business Services, No. BR 13-80 at 2 (FISC Apr. 25, 2013) (“Secondary Order”); Mem. Op. at 6.
RESPONSE: Undisputed, but not material, that The Guardian published the referenced article, to which the Court is respectfully referred for a complete and accurate statement of its contents. Facts asserted in the article are disputed on the ground that they constitute hearsay inadmissible for the truth of the matters stated therein.
Undisputed that the Foreign Intelligence Surveillance Court (“FISC”) issued the referenced April 25, 2013, Secondary Order to Verizon Business Network Services, Inc. The Court is respectfully referred to the Secondary Order for a complete and accurate statement of its contents.
3. The Secondary Order “show[ed] . . . that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk—regardless of whether they are suspected of any wrongdoing.” Greenwald, supra; Mem. Op. at 6-7.
RESPONSE: This paragraph is disputed on the basis that it quotes a statement from the article published by The Guardian, which is hearsay inadmissible for the truth of the matters stated therein. The Court is respectfully referred to the Secondary Order for a complete and accurate statement of its contents.
2

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4. The Government Defendants had confirmed and admitted to the authenticity of the Secondary Order as well as the existence of the Bulk Telephony Metadata Program (“Program”) under which “the FBI obtains orders from the FISC pursuant to Section 215 [of the USA PATRIOT Act] directing certain telecommunications service providers to produce to the NSA on a daily basis electronic copies of ‘call detail records.’” Govt.’s Opp’n at 8; Mem. Op. at 7 (emphasis added).
RESPONSE: Not disputed that the Government has confirmed the authenticity of the Secondary Order and the existence of the bulk telephony metadata program carried out under authority of Section 215 of the USA-PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001), codified at 50 U.S.C. § 1861. Not disputed that the quoted language appears in the description of the program set forth in the Government Defendants’ Opposition to Plaintiffs’ Motions for Preliminary Injunctions (ECF No. 25) (Gov’t Defs.’ PI Opp.”) at 8–13, to which the Court is respectfully referred for a complete and accurate statement of its contents.
5. The Program is “a ‘counterterrorism program’ under [50 U.S.C. §] 1861[, conducted for more than seven years, that] collect[s], compiles, retains, and analyzes certain telephony records, which it characterizes as “business records” created by certain telecommunications companies.” Mem. Op. at 15-16 (emphasis added).
RESPONSE: Undisputed that the Section 215 bulk telephony metadata program is conducted for counter-terrorism purposes; that it has been conducted since May 2006; and that it involves the acquisition, storage, and analysis by the NSA of information contained in business records, created by certain telecommunications companies, known as “call detail records.” Declaration of Teresa H. Shea, Signals Intelligence Director, NSA (Gov’t Defs.’ PI Opp., Exh. C) (ECF No. 25-4) (“Shea Decl.”), ¶¶ 10–16.
To the extent this paragraph is meant to convey any different or conflicting understanding, it is disputed as unsupported by reference to admissible evidence; statements of fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
3

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6. In principle, but not in practice, the Program is “meant to detect: (1) domestic U.S. phone numbers calling outside of the United States to foreign phone numbers associated with terrorist groups; (2) foreign phone numbers associated with terrorist groups calling into the U.S. to U.S. phone numbers; and (3) ‘possible terrorist –related communications’ between numbers inside the U.S.” Mem. Op. at 20-21.
RESPONSE: Undisputed that the Section 215 bulk telephony metadata program was specifically developed to assist the U.S. Government in detecting communications between known or suspected terrorists who are operating outside of the U.S. and who are communicating with others inside the U.S., as well as communications between operatives who are located within the U.S. Shea Decl. ¶ 10.
To the extent this paragraph is meant to convey any different or conflicting understanding, including but not limited to the assertion that the program is meant to detect terrorist communications “[i]n principle, but not in practice,” it is disputed on the basis that it is unsupported by reference to admissible evidence. The Government Defendants note that the qualifying phrase “[i]n principle, but not in practice” does not appear on the cited pages of the Court’s December 16, 2013, Memorandum Opinion (ECF No. 48) (“Mem. Op.”). In addition, statements of fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
7. The records collected under the Program consist of “metadata,” which includes information about what phone numbers were used to make and receive calls, when the calls took place, and how long the calls lasted. Mem. Op. at 15.
RESPONSE: Undisputed that the call detail records acquired by the NSA under the Section 215 bulk telephony metadata program contain “metadata,” defined under the FISC orders authorizing the program as “comprehensive communications routing information” including but not limited to “originating and terminating telephone number[s], International Mobile Subscriber Identity (IMSI) number[s], International Mobile Station Equipment Identity (IMEI) number[s], trunk identifier[s], telephone calling card numbers, and time and duration of
4

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call.” In re Application of the FBI for an Order Requiring the Production of Tangible Things [etc.], Dkt. No. BR 13-80, Primary Order (F.I.S.C. Apr. 25, 2013) (Gov’t Defs.’ PI Opp., Exh. E) (ECF No. 25-6) (“Primary Order”) at 3 n.1.
To the extent this paragraph is meant to convey any different or conflicting understanding, it is disputed as unsupported by reference to admissible evidence; statements of fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
8. Through targeted searches of metadata records, the NSA “tries to discern connections between terrorist organizations and previously unknown terrorist operatives located in the United States.” Mem. Op. at 16.
RESPONSE: Undisputed that through queries of the data using identifiers (e.g., telephone numbers) that are reasonably suspected of being associated with identified international terrorist organizations that are subjects of FBI counterterrorism investigations, NSA analysts attempt to determine whether known or suspected terrorists have been in contact with individuals in the U. S. Shea Decl. ¶¶ 8, 10, 19–20; Declaration of Robert J. Holley (Gov’t Defs.’ PI Opp., Exh. D) (ECF No. 25-5) (Holley Decl.) ¶ 5.
To the extent this paragraph is meant to convey any different or conflicting understanding, it is disputed as unsupported by reference to admissible evidence; statements of fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
9. The telephone metadata records, which “[telecommunications] companies create and maintain as part of their business of providing telecommunications services to customers[,]” have been continually produced since May 2006 under the FBI’s production orders from the FISC. See Mem. Op. at 16.
RESPONSE: Undisputed that the call detail records acquired by the NSA under the Section 215 bulk telephony metadata program are records that the telecommunications companies already generate and maintain in the ordinary course of business for their own preexisting business purposes (such as billing and fraud prevention). Shea Decl. ¶ 18; Holley Decl. ¶ 10. Undisputed that the program has been conducted since May 2006, and that the FISC orders
5

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issued under the program require the telecommunications service providers to which they are directed to produce call detail records to the NSA on an ongoing daily basis for the duration of each order. Shea Decl. ¶ 13; Holley Decl. ¶¶ 6, 11.
To the extent this paragraph is meant to convey any different or conflicting understanding, it is disputed as unsupported by reference to admissible evidence; statements of fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
10. The NSA consolidates the metadata records provided by different telecommunications companies into one database and under the FISC’s orders, the NSA may retain the records for up to five entire years. Mem. Op. at 16.
RESPONSE: Undisputed that under the FISC orders authorizing the Section 215 bulk telephony metadata program, the NSA consolidates and stores the metadata it acquires in secure networks, and must destroy metadata no later than five years after their initial collection. Shea Decl. ¶¶ 23, 30; Primary Order at 4, 14.
To the extent this paragraph is meant to convey any different or conflicting understanding, it is disputed as unsupported by reference to admissible evidence; statements of fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
11. When an NSA intelligence analyst runs a query, the quantity of phone numbers captured is very large, potentially and sometimes up to 1,000,000 numbers total. Mem. Op. at 18-19.
RESPONSE: This paragraph is disputed as unsupported by reference to admissible evidence; statements of fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein. The Government Defendants also note that the cited portion of the Court’s December 16, 2013, Memorandum Opinion discusses a solely hypothetical scenario, Mem. Op. at 18–19, and note further that under current FISC orders, the results of authorized queries of the NSA’s database are limited to metadata within two “hops,” no longer three, of the
6

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suspected-terrorist selector used to conduct the query. Declaration of Teresa H. Shea (filed herewith) (“Klayman Shea Decl.”) ¶¶ 3–5.
12. Since the Program began in May 2006, the FISC has repeatedly issued orders directing telecommunication service providers to produce records in connection with the Program. Mem. Op. at 21.
RESPONSE: Undisputed that beginning in May 2006 and continuing to this day, the FBI has obtained orders from the FISC pursuant to Section 215 directing certain telecommunications service providers to produce all call detail records created by them containing information about communications between telephone numbers, generally relating to telephone calls made between the United States and a foreign country and calls made entirely within the U.S. Shea Decl. ¶¶ 13–14.
To the extent this paragraph is meant to convey any different or conflicting understanding, it is disputed as unsupported by reference to admissible evidence; statements of fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
13. Fifteen different FISC judges have issued thirty-five orders authorizing the Program and under those orders, the Government defendants must continuously seek renewal of the authority to collect telephony records, which occurs as often as every ninety days. Mem. Op. at 21.
RESPONSE: Undisputed that to date sixteen (16) different FISC judges have on thirtyseven (37) occasions issued orders for the bulk production of telephony metadata to the NSA under the Section 215 program. Klayman Shea Decl. ¶ 7; see also Shea Decl. ¶ 14; Holley Decl. ¶ 11. Also undisputed that by the terms of the orders they must be renewed approximately every ninety (90) days.
To the extent this paragraph is meant to convey any different or conflicting understanding, it is disputed as unsupported by reference to admissible evidence; statements of fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
7

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14. The Government Defendants admit that they have failed to comply with the minimization procedures set forth in the orders. Mem. Op. at 21.
RESPONSE: Undisputed, but not material, that since the Section 215 bulk telephony metadata program was initiated, there have been a number of significant compliance and implementation issues that were discovered as a result of internal NSA oversight and interagency reviews. Upon discovery, these violations were reported to the FISC and Congress, the NSA remedied the problems, and the FISC reauthorized the program. Even the most serious of these incidents—in which an “alert list” of selectors that had not gone through the process of becoming “RAS” approved was used to query the metadata—involved identifiers that were suspected of being associated with foreign terrorist organizations. Shea Decl. ¶¶ 36–43.
To the extent this paragraph is meant to convey any different or conflicting understanding, it is disputed as unsupported by reference to admissible evidence; statements of fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
15. The Honorable Reggie Walton of the FISC concluded he had no confidence that the Government was doing its utmost to comply with the court’s orders. Mem. Op. at 21-22.
RESPONSE: Undisputed, but immaterial for purposes of this case, that in March 2009, upon being notified by the Government that the NSA had employed the “alert list” of non-RAS approved identifiers to query the database, Judge Walton, for the FISC, issued an order that prohibited the Government from accessing the metadata for foreign-intelligence purposes except as authorized by the FISC on a case-by-case basis (except in life-threatening situations), stating that the Court no longer had “every confidence that the government [was] doing its utmost to ensure that those responsible for implementation fully comply with the Court’s orders.” In re Production of Tangible Things [Redacted], 2009 WL 9150913, *6, 9 (F.I.S.C. Mar. 2, 2009). Following the completion of an end-to-end review of the NSA’s handling of the metadata and the submission of a report thereon to the FISC, the FISC entered an order in September 2009
8

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once again permitting the NSA to make “RAS” determinations and to query the metadata using RAS-approved identifiers without seeking pre-approval from the FISC. Shea Decl. ¶¶ 37–40.
The Court is respectfully referred to the FISC’s March 2, 2009 order for a complete and accurate statement of its contents.
To the extent this paragraph is meant to convey any different or conflicting understanding, it is disputed as unsupported by reference to admissible evidence; statements of fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
16. The Honorable John Bates, Presiding Judge of the FISC, found that the Government had misrepresented the scope of its targeting of certain internet communications pursuant to 50 U.S.C. § 1881a. Mem. Op. at 22.
RESPONSE: Undisputed, but immaterial for purposes of this case, that on October 3, 2011, the FISC, by Judge Bates, issued a Memorandum Opinion granting in part and denying in part the Government’s request for authorization to acquire certain telephone and Internet communications pursuant to Section 702 of the Foreign Intelligence Surveillance Act, 50 U.S.C. § 188la. Undisputed, but immaterial for purposes of this case, that in light of the Government’s disclosure that the NSA’s acquisition of Internet communications through its “upstream” collection under Section 702 was accomplished by acquiring Internet “transactions” containing single or multiple discrete communications, Judge Bates wrote that “[t]he Court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.” Id. at 15–16 & n.14. The Court is respectfully referred to Judge Bates’ opinion for a complete and accurate statement of its contents. Available at http://www.dni.gov/index.php/newsroom/press–releases/191–press– releases–2013/915–dni–declassifies–intelligence–community–documents–regarding–collection– under–section–702–of–the–foreign–intelligence–surveillance–act–fisa.
9

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To the extent this paragraph is meant to convey any different or conflicting understanding, it is disputed as unsupported by reference to admissible evidence; statements of fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
17. The Government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the Government disclosed a substantial misrepresentation regarding the scope of a major collection program. Mem. Op. at 23.
RESPONSE: See response to paragraph 16, above. 18. Plaintiffs filed a complaint on June 6, 2013 (Klayman I). See Mem. Op. at 8. RESPONSE: Undisputed. 19. Klayman I Plaintiffs Larry Klayman, Charles Strange, and Mary Ann Strange brought suit against the NSA, the Department of Justice (“DOJ”), multiple executive officials, whom include President Barack H. Obama, Attorney General Eric H. Holder, Jr., General Keith B. Alexander, Director of the NSA, and U.S. District Judge Roger Vinson, and Verizon Communications as well as its chief executive officer. Second Am. Compl. ¶¶ 9-19; Mem. Op. at 8. RESPONSE: Undisputed, but the Court is respectfully referred to the Second Amended Complaint (ECF No. 37), and to the Third Amended Complaint (ECF No. 77) for complete and accurate statements of their contents. 20. Plaintiffs Larry Klayman and Charles Strange are subscribers of Verizon wireless for cellular phone service. Mem. Op. at 3 n.5. RESPONSE: Undisputed, but immaterial, that as of October 28, 2013, Plaintiffs Klayman and Charles Strange had been subscribers of Verizon Wireless cellular phone service “for many years.” Affidavit of Larry Klayman (ECF No. 13-2) ¶ 3; Affidavit of Charles Strange (ECF No. 13-3) ¶ 2. To the extent this paragraph is meant to convey any different or conflicting understanding, it is disputed as unsupported by reference to admissible evidence; statements of fact in judicial opinions are hearsay, inadmissible for the truth of the matters stated therein.
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21. The United States District Court for the District of Columbia (“the Court”) has the authority to evaluate Plaintiffs’ constitutional challenges to the NSA’s conduct. Mem. Op. at 5.
RESPONSE: This paragraph states a conclusion of law to which no response is required.
22. Plaintiffs have standing to challenge the constitutionality of the Government Defendants’ bulk collection and querying of phone record metadata. Mem. Op. at 5.
RESPONSE: This paragraph states a conclusion of law to which no response is required.
23. Plaintiffs have standing to challenge both of the NSA’s Bulk Telephony Metadata Program’s searches: (1) the bulk collection of metadata and (2) the analysis of that data through the NSA’s querying process. Mem. Op. at 36.
RESPONSE: This paragraph states a conclusion of law to which no response is required.
24. The NSA’s bulk telephony metadata collection and analysis violates a reasonable expectation of privacy. Mem. Op. at 47.
RESPONSE: This paragraph states a conclusion of law to which no response is required.
25. A Fourth Amendment search occurred in this case. Mem. Op. at 56. RESPONSE: This paragraph states a conclusion of law to which no response is required. 26. Plaintiffs have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim. Mem. Op. at 5. RESPONSE: This paragraph states a conclusion of law to which no response is required. 27. Plaintiffs will suffer irreparable harm absent injunctive relief. Mem. Op. at 5. RESPONSE: This paragraph states a conclusion of law to which no response is required.
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28. The public interest weighs heavily in favor of granting an injunction. Mem. Op. at 65.
RESPONSE: This paragraph states a conclusion of law to which no response is
required.
29. The NSA’s bulk collection program is indeed an unreasonable search under the Fourth Amendment. Mem. Op. at 62.
RESPONSE: This paragraph states a conclusion of law to which no response is
required.

Dated: May 9, 2014

Respectfully submitted,
STUART F. DELERY Assistant Attorney General JOSEPH H. HUNT Director, Federal Programs Branch ANTHONY J. COPPOLINO Deputy Branch Director

/s/ James J. Gilligan JAMES J. GILLIGAN Special Litigation Counsel
MARCIA BERMAN Senior Trial Counsel BRYAN DEARINGER Trial Attorney RODNEY PATTON Trial Attorney JULIA BERMAN Trial Attorney
U.S Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 6102 Washington, D.C. 20001 Phone: (202) 514-3358 Fax: (202) 616-8470
Counsel for the Government Defendants
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Case 1:13-cv-00851-RJL Document 117-4 Filed 05/09/14 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

LARRY KLAYMAN, et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No.

)

1:13-cv-0851-RJL

BARACK OBAMA, President of the

)

United States, et al.,

)

)

Defendants.

)

_______________________________________)

[PROPOSED] ORDER

The above-captioned case is before the Court on the Plaintiffs’ Motion for Partial

Summary Judgment (ECF No. 108).

The Court having considered the parties’ respective submissions in support of and in

opposition to Plaintiffs’ motion,

IT IS HEREBY ORDERED THAT: 1. Plaintiffs’ Motion for Partial Summary Judgment is hereby DENIED.

So ORDERED this __________ day of _______________, 2014.

__________________________________ HON. RICHARD J. LEON UNITED STATES DISTRICT JUDGE

 
 Case 1:13-cv-00851-RJL Document 25-4 Filed 11/12/13 Page 2 of 46

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

AMERICAN CIVIL LIBERTIES UNION; AMERICAN

;

CIVIL LIBERTIES UNION FOUNDATION; NEW YORK

CIVIL LIBERTIES UNION; and NEW YORK CIVIL

j

LIBERTIES UNION FOUNDATION,

13 Civ. 3994 (WHP) ECFCase

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Plaintiffs,

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v.

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JAMES R. CLAPPER, in his official capacity as Director of

National Intelligence; KEITH B. ALEXANDER, in his

official capacity as Director of the National Security Agency

and Chief of the Central Security Service; CHARLES T.

HAGEL, in his official capacity as Secretary of Defense;

ERIC H. HOLDER, in his official capacity as Attorney

General of the United States; and JAMES B. COMEY, in his

official capacity as Director of the Federal Bureau of

Investigation,

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Defendants.

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DECLARATION OF TERESA H. SHEA, SIGNALS INTELLIGENCE DIRECTOR

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NATIONAL SECURITY AGENCY

I, Teresa H. Shea, do hereby state and declare as follows:

(U) Introduction and Surnrnarv

1. I am the Director of the Signals Intelligence Directorate (SID) at the National Security

Agency (NSA), an intelligence agency within the Department of Defense (DoD). I am

responsible for, among other things, protecting NSA Signals Intelligence activities, sources, and

methods against unauthorized disclosures. Under Executive Order No. 12333, 46 Fed. Reg.

59941 (1981), as amended on January 23,2003,68 Fed. Reg. 4075 (2003), and August27, 2004,

69 Fed. Reg. 53593 (2004), and August 4, 2008, 73 Fed. Reg. 45325, the NSA is responsible for

the collection, processing, and dissemination of Signals Intelligence (SIGINT) information for

Case 1:13-cv-00851-RJL Document 25-4 Filed 11/12/13 Page 3 of 46
the foreign intelligence purposes of the U.S. I have been designated an original TOP SECRET classification authority under Executive Order (E.O.) 13526, 75 Fed. Reg. 707 (Jan. 5, 2010), and Department of Defense Directive No. 5200.1-R, Information Security Program Regulation, 32 C.F.R. 159a.l2 (2000).
2. My statements herein are based upon my personal knowledge of SIGINT collection and NSA operations, the information available to me in my capacity as SID Director, and the advice of counsel.
3. The NSA was established by Presidential Directive in 1952 as a separately organized agency within the DOD under the direction, authority, and control of the Secretary of Defense. The NSA's foreign intelligence mission includes the responsibility to collect, process, analyze, produce, and disseminate SIGINT information for (a) national foreign intelligence purposes, (b) counterintelligence purposes, and (c) to support national and departmental missions. See E.O. 12333, section 1.7(c), as amended.
4. The NSA's responsibilities include SIGINT, i.e., the collection, processing and dissemination of intelligence information from certain signals for foreign intelligence and counterintelligence purposes and to support military operations, consistent with U.S.laws and the protection of privacy and civil liberties. In performing its SIGINT mission, the NSA exploits foreign electromagnetic signals, communications, and information about communications to obtain intelligence information necessary to national defense, national security, or the conduct of foreign affairs. The NSA has developed a sophisticated worldwide SIGINT collection network that acquires foreign and international electronic communications. The technological infrastructure that supports the NSA's foreign intelligence information collection network has
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taken years to develop at a cost of billions of dollars and a remarkable amount of human effort. It relies on sophisticated collection and processing technology.
5. As explained below, plaintiffs' motion inaccurately describes an NSA intelligence collection program involving the acquisition and analysis of telephony metadata. While the NSA obtains telephony metadata in bulk from telecommunications service providers, the NSA's use of that data is strictly controlled; only a very small percentage of the total data collected is ever reviewed by intelligence analysts; and results of authorized queries can be further analyzed and disseminated for valid counterterrorism purposes.
OVERVIEW OF PROGRAM 6. One of the greatest challenges the U.S. faces in combating international terrorism and preventing potentially catastrophic terrorist attacks on our country is identifying terrorist operatives and networks, particularly those operating within the U.S. Detecting and preventing threats by exploiting terrorist communications has been, and continues to be, one of the tools in this effort. It is imperative that we have the capability to rapidly detect any terrorist threat inside the U.S. 7. One method that the NSA has developed to accomplish this task is analysis of metadata associated with telephone calls within, to, or from the U.S. The term "telephony metadata" or "metadata" as used here refers to data collected under the program that are about telephone calls-such as the initiating and receiving telephone numbers, and th!! time and duration of the calls-but does not include the substantive content of those calls or any subscriber identifying information.
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Case 1:13-cv-00851-RJL Document 25-4 Filed 11/12/13 Page 5 of 46
8. By analyzing telephony metadata based on telephone numbers associated with terrorist activity, trained expert intelligence analysts can work to determine whether known or suspected terrorists have been in contact with individuals in the U.S.
9. Foreign terrorist organizations use the international telephone system to communicate with one another between numerous countries all over the world, including calls to and from the U.S. When they are located inside the U.S., terrorist operatives also make domestic U.S. telephone calls. The most analytically significant terrorist-related communications are those with one end in the U.S., or those that are purely domestic, because those communications are particularly likely to identify suspects in the U.S. whose activities may include planning attacks against the homeland.
I0. The telephony metadata collection program was specifically developed to assist the U.S. Government in detecting such communications between known or suspected terrorists who are operating outside of the U.S. and who are communicating with others inside the U.S., as well as communications between operatives who are located within the U.S.
11. Detecting and linking these types of communications was identified as a critical intelligence gap in the aftermath of the September 11, 2001 attacks. One striking example of this gap is that, prior to those attacks, the NSA intercepted and transcribed seven calls made by hijacker Khalid ai-Mihdhar, then living in San Diego, California, to a telephone identifier associated with an a! Qaeda safe house in Yemen. The NSA intercepted these calls using overseas signals intelligence capabilities, but those capabilities did not capture the calling party's telephone number identifier. Because they lacked the U.S. telephone identifier, NSA analysis mistakenly concluded that ai-Mihdhar was overseas and not in California. Telephony metadata of the type acquired under this program, however, would have included the missing information
4

Case 1:13-cv-00851-RJL Document 25-4 Filed 11/12/13 Page 6 of 46
and might have permitted NSA intelligence analysts to tip FBI to the fact that al-Mihdhar was calling the Yemeni safe house from a U.S. telephone identifier.
12. The utility of analyzing telephony metadata as an intelligence tool has long been recognized. As discussed below, experience also shows that telephony metadata analysis in fact produces information pertinent to FBI counterterrorism investigations, and can contribute to the prevention of terrorist attacks.
13. Beginning in May 2006 and continuing to this day, pursuant to orders obtained from the Foreign Intelligence Surveillance Court ("FISC"), under the "business records" provision of the Foreign Intelligence Surveillance Act ("FISA"), enacted by Section 215 of the USA PATRIOT Act, codified at 50 U.S.C. § 1861 (Section 215), NSA has collected and analyzed bulk telephony metadata from telecommunications service providers to close the intelligence gap that allowed ai-Mihdhar to operate undetected within the U.S. while communicating with a known terrorist overseas.
14. Pursuant to Section 215, the FBI obtains orders from the FISC directing certain telecommunications service providers to produce all business records created by them (known as call detail records) that contain information about communications between telephone numbers, generally relating to telephone calls made between the U.S. and a foreign country and calls made entirely within the U.S. By their terms, those orders must be renewed approximately every 90 days. Redacted, declassified versions of a recent FISC "Primary Order" and "Secondary Order," directing certain telecommunications service providers to produce telephony metadata records to NSA, and imposing strict conditions on the Government's access to and use and dissemination of the data, are attached, respectively, as Exhibits A and B hereto. At least 14 different FISC
5

Case 1:13-cv-00851-RJL Document 25-4 Filed 11/12/13 Page 7 of 46
judges have entered a total of34 orders authorizing NSA's bulk collection of telephony metadata under Section 215, most recently on July 19,2013.
15. Under the terms of the FISC's orders, the information the Government is authorized to collect includes, as to each call, the telephone numbers that placed and received the call, other session-identifYing information (e.g., International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card number, and the date, time, and duration of a call. The FISC's orders authorizing the collection do not allow the Government to collect the content of any telephone call, nor the names, addresses, or financial information of parties to any call. The metadata collected by the Government pursuant to these orders also does not include cell site locational information.
16. The NSA, in turn, stores and analyzes this information under carefully controlled circumstances, and refers to the FBI information about communications (e.g., telephone numbers, dates of calls, etc.) that the NSA concludes have counterterrorism value, typically information about communications between known or suspected terrorist operatives and persons located within the U.S.
17. Under the FISC's orders, the Government is prohibited from accessing the metadata for any purpose other than obtaining counterterrorism information relating to telephone numbers (or other identifiers) that are reasonably suspected of being associated with specific foreign terrorist organizations or rendering the metadata useable to query for such counterterrorism related information.
18. Pursuant to Section 215 and the FISC's orders, the NSA does not itself in the first instance record any metadata concerning anyone's telephone calls. Nor is any non-governmental party required by Section 215, the FISC or the NSA to create or record the information that the
6

Case 1:13-cv-00851-RJL Document 25-4 Filed 11/12/13 Page 8 of 46
NSA obtains pursuant to Section 215 and FISC orders. Rather, pursuant to the FISC's orders, telecommunications service providers tum over to the NSA business records that the companies already generate and maintain for their own pre-existing business purposes (such as billing and fraud prevention).
QUERY AND ANALYSIS OF METADATA 19. Under the FISC's orders authorizing the NSA's bulk collection of telephony metadata, the NSA may access the data for purposes of obtaining counterterrorism information only through queries (term searches) using metadata "identifiers," e.g., telephone numbers, that are associated with a foreign terrorist organization. 20. Specifically, under the terms of the FISC's Primary Order, before an identifier may be used to query the database there must be a "reasonable articulable suspicion" (RAS), based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, that the identifier is associated with one of the identified international terrorist organizations that are subjects of FBI counterterrorism investigations. The RAS requirement ensures an ordered and controlled querying of the collected data; it is also designed to prevent any general browsing of data. Further, when the identifier is reasonably believed to be used by a U.S. person, the suspicion of association with a foreign terrorist organization cannot be based solely on activities protected by the First Amendment. An identifier used to commence a query of the data is referred to as a "seed." 21. Information responsive to an authorized query could include telephone numbers that have been in contact with the terrorist-associated number used to query the data, plus the dates, times, and durations of the calls. Query results do not include the identities of the individuals
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Case 1:13-cv-00851-RJL Document 25-4 Filed 11/12/13 Page 9 of 46
associated with the responsive telephone numbers, because that is subscriber information that is not included in the telephony metadata.
22. Under the FISC's orders, the NSA may also obtain information concerning secondand third-tier contacts of the identifier, also known as "hops." The first "hop" refers to the set of identifiers directly in contact with the seed identifier. The second "hop" refers to the set of identifiers found to be in direct contact with the first "hop" identifiers, and the third "hop" refers to the set of identifiers found to be in direct contact with the second "hop" identifiers.
23. Although bulk metadata are consolidated and preserved by the NSA pursuant to Section 215, the vast majority of that information is never seen by any person. Only the tiny fraction of the telephony metadata records that are responsive to queries authorized under the RAS standard are extracted, reviewed, or disseminated by NSA intelligence analysts, and only under carefully controlled circumstances.
24. For example, although the number of unique identifiers has varied over the years, in 2012, fewer than 300 met the RAS standard and were used as seeds to query the data after meeting the standard. Because the same seed identifier can be queried more than once over time, can generate multiple responsive records, and can be used to obtain contact numbers up to three "hops" from the seed identifier, the number ofmetadata records responsive to such queries is substantially larger than 300, but it is still a very small percentage of the total volume of metadata records.
25. There is no typical number of records responsive to a query of the metadata-the number varies widely depending on how many separate telephone numbers (or other identifiers)
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the "seed" identifier has been in direct contact with, how many separate identifiers those in the

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first-tier contact, and so forth.'

26. The NSA does not disseminate metadata information that it has not determined to be

of counterterrorism value, regardless of whether it was obtained at the first, second, or third hop

from a seed identifier. Rather, NSA intelligence analysts work to ascertain which of the results

are likely to contain foreign intelligence information, related to counterterrorism, that would be

of investigative value to the FBI (or other intelligence agencies). For example, analysts may rely

on SIGINT or other intelligence information available to them, or chain contacts within the

query results themselves, to inform their judgment as to what information should be passed to the

FBI as leads or "tips" for further investigation. As a result, during the three-year period

extending from May 2006 (when the FISC first authorized NSA's telephony metadata program

under Section 215) through May 2009, NSA provided to the FBI and/or other intelligence

agencies a total of 277 reports containing approximately 2,900 telephone identifiers that the NSA

had identified.

27. It is not accurate, thenifore, to suggest that the NSA can or does "track" or "keep

track of' all Americans' calls or that it engages in "surveillance," under Section 215. Rather, by

the terms of the FISC's orders, the NSA can only access metadata information within, at most,

1 Plaintiffs' conjecture that queries using a single seed identifier could capture metadata records concerning calls by over two million people is erroneous as a matter of simple arithmetic. Assuming, as plaintiffs hypothesize, that an individual or individuals associated with a "seed" telephone number made calls to or received calls from 40 other telephone numbers, the first "hop" of a query based on that number would return metadata information on those 40 telephone numbers. At the second "hop," if each of those 40 numbers made contact with 40 other numbers (none of which overlapped, a questionable assumption), the query would return information about 1600 numbers. !fin turn each of those 1600 numbers placed calls to or received calls from 40 non-overlapping numbers, a third-hop would yield information on a total of 64,000 numbers. Only if the FISC's orders permitted NSA to review the metadata of contacts at the fourth "hop" from a seed identifier, which they do not, could the number exceed 2 million (40 times 64,000).
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Case 1:13-cv-00851-RJL Document 25-4 Filed 11/12/13 Page 11 of 46

three "hops" of an approved seed identifier that is reasonably suspected of being associated with

a foreign terrorist organization specified in the FISC's orders.

28. Even when the NSA conducts authorized queries of the database, it does not use the

results to provide the FBI, or any other agency, with complete profiles on suspected terrorists or

comprehensive records of their associations. Rather, the NSA applies the tools ofSIGINT

analysis to focus only on those identifiers which, based on the NSA's experience and judgment,

and other intelligence available to it, may be of use to the FBI in detecting persons in the U.S.

who may be associated with a specified foreign terrorist organization and acting in furtherance of

their goals. Indeed, under the FISC's orders, the NSA is prohibited from disseminating any

U.S.-person information derived from the metadata unless one of a very limited number of senior

NSA officials determines that the information is in fact related to counterterrorism information,

and is necessary to understand the counterterrorism information or assess its importance. The

NSA disseminates no information derived from the metadata about persons whose identifiers

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have not been authorized as query terms under the RAS standard, or whose metadata are not

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responsive to other queries authorized under that standard.

MINIMIZATION PROCEDURES AND OVERSIGHT

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29. The NSA's access to, review, and dissemination of telephony metadata collected

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under Section 215 is subject to rigorous procedural, technical, and legal controls, and receives

intensive oversight from numerous sources, including frequent internal NSA audits, Justice

Department and Office of the Director of National Intelligence (ODNI) oversight, and reports to

the FISC and to the Congressional intelligence committees.

30. In accordance with the requirements of Section 215, "minimization procedures" are

in place to guard against inappropriate or unauthorized dissemination of information relating to

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U.S. persons. First among these procedures is the requirement that the NSA store and process the metadata in repositories within secure networks, and that access to the metadata be permitted only for purposes allowed under the FISC's order, specifically database management and authorized queries for counterterrorism purposes under the RAS standard. In addition, the metadata must be destroyed no later than five years after their initial collection.
31. Second, under the FISC's orders no one other than twenty-two designated officials in the NSA's Homeland Security Analysis Center and the Signals Intelligence Directorate can make fmdings of RAS that a proposed seed identifier is associated with a specified foreign terrorist organization. For identifiers believed to be associated with U.S. persons, the NSA's Office of General Counsel must also determine that a finding of RAS is not based solely on activities protected by the First Amendment. And, as noted above, the minimization requirements also limit the results of approved queries to metadata within three hops of the seed identifier.
32. Third, while the results of authorized queries of the metadata may be shared, without minimization, among trained NSA personnel for analysis purposes, no results may be disseminated outside of the NSA except in accordance with the minimization and dissemination requirements and established NSA procedures. Moreover, prior to dissemination of any U.S.· person information outside of the NSA, one of a very limited number ofNSA officials must determine that the information is in fact related to counterterrorism information, and is necessary to understand the counterterrorism information or assess its importance.
33. Fourth, in accordance with the FISC's orders, the NSA has imposed stringent and mutually reinforcing technological and personnel training measures to ensure that queries will be made only as to identifiers about which RAS has been established. These include requirements that intelligence analysts receive comprehensive training on the minimization procedures
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applicable to the use, handling, and dissemination of the metadata, and technical controls that prevent NSA intelligence analysts from seeing any metadata unless as the result of a query using an approved identifier.
34. Fifth, the telephony metadata collection program is subject to an extensive regime of oversight and internal checks and is monitored by the Department of Justice (DOJ), the FISC, and Congress, as well as the Intelligence Community. Among these additional safeguards and requirements are audits and reviews of various aspects of the program, including RAS findings, by several entities within the Executive Branch, including the NSA's legal and oversight offices and the Office of the Inspector General, as well as attorneys from DOJ's National Security Division and the Office of the Director ofNational Intelligence.
35. Finally, in addition to internal oversight, any compliance matters in the program identified by the NSA, DOJ, or ODNI are reported to the FISC. Applications for 90-day renewals must report information on how the NSA's authority to collect, store, query, review and disseminate telephony metadata was implemented under the prior authorization. Significant compliance incidents are also reported to the Intelligence and Judiciary Committees of both houses of Congress.
COMPLIANCE INCIDENTS 36. Since the telephony metadata collection program under Section 215 was initiated, there have been a number of significant compliance and implementation issues (described below) that were discovered as a result of internal NSA oversight and ofDOJ and ODNI reviews. Upon discovery, these violations were reported by the Government to the FISC and Congress, the NSA remedied the problems, and the FISC reauthorized the program.
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37. For example, beginning in mid-January 2009, the Government notified the FISC that the NSA employed an "alert list" consisting of counterterrorism telephony identifiers to provide

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automated notification to signals intelligence analysts if one of their assigned foreign

counterterrorism targets was in contact with a telephone identifier in the U.S., or if one of their

targets associated with foreign counterterrorism was in contact with a foreign telephone

identifier. The NSA's process compared the telephony identifiers on the alert list against

incoming Section 215 telephony metadata as well as against telephony metadata that the NSA

acquired pursuant to its Executive Order 12333 SIGINT authorities. Reports filed with the FISC

incorrectly stated that the NSA had determined that each of the telephone identifiers it placed on

the alert list were supported by facts giving rise to RAS that the telephone identifier was

associated with a foreign terrorist organization as required by the FISC's orders, i.e., was RAS·

approved. In fact, however, the majority of telephone identifiers included on the alert list had

not gone through the process of becoming RAS approved, even though the identifiers were

suspected of being associated with a foreign terrorist organization. The NSA shut down the

automated alert list process and corrected the problem.

38. Following this notification, the Director of the NSA ordered an end-to-end system

engineering and process review of its handling of the Section 215 metadata. On March 2, 2009,

the FISC ordered the NSA to seek FISC approval to query the Section 215 metadata on a case-

by-case basis, except where necessary to protect against an imminent threat to human life. The

FISC further ordered the NSA to file a report with the FISC following the completion of the end-

to-end review discussing the results of the review and any remedial measures taken. The report

filed by the NSA discussed all of the compliance incidents, some of which involved queries of

the Section 215 metadata using non-RAS approved telephone identifiers, and how they had been

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remedied. The compliance incidents, while serious, generally involved human error or complex technology issues related to the NSA's compliance with particular aspects of the FISC's orders. Subsequently, the FISC required a full description of any incidents of dissemination outside of the NSA of U.S. person information in violation of court orders, an explanation of the extent to which the NSA had acquired foreign-to-foreign communications metadata pursuant to the court's orders and whether the NSA had complied with the terms of court orders in connection with any such acquisitions, and certification as to the status of several types of data to the extent those data were collected without authorization.
39. The U.S. Government completed these required reviews and reported to the FISC in August 2009. In September 2009, the FISC entered an order permitting the NSA to once again assess RAS without seeking pre-approval from the FISC subject to the minimization and other requirements that remain in place today.
40. In fact, in an August 2013 Amended Memorandum Decision discussing the Court's reasons for renewing the continued operation of the section 215 telephony metadata program for a 90-day period, the FISC stated, "The Court is aware that in prior years there have been incidents of non-compliance with respect to the NSA's handling of produced information. Through oversight by this Court over a period of months, those issues were resolved." In re Application ofthe Federal Bureau ofInvestigation for an Order Requiring the Production of Tangible Things From [Redacted}, Case No. BR 13-109, Amended Memorandum Opinion at 5 n.8 (FISC, released in redacted form September 17, 2013; available at http://www. uscourts. gov/uscourts/courts/fisc/br13-09-primary-order.pdj) (last visited September 18, 2013).
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41. These incidents, including the FISC's related opinions, were also reported to

Congress in 2009.

42. Having received these reports and having been informed that the Government

interpreted section 215 to authorize the bulk collection of telephony metadata, Congress has

twice reauthorized section 215, without relevant modification, in 2010 and again in 2011.

43. In sum, the factors giving rise to compliance incidents discussed in this section have

been remedied. Moreover, even the most serious incidents, in which non-RAS approved

selectors were used to query the database, would not have allowed the NSA to compile the type

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of richly detailed profiles of Americans' lives about which plaintiffs speculate. That type of

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analysis is simply not possible from the raw telephony metadata that is collected under the

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program, as it does not identify who is calling whom and for what purpose.

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BENEFITS OF METADATA COLLECTION

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44. Among other benefits, the bulk collection of telephony metadata under Section 215

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has animportant value to NSA intelligence analysts tasked with identifying potential terrorist

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threats to the U.S. homeland, in support of FBI, by enhancing their ability to detect, prioritize,

and track terrorist operatives and their support networks both in the U.S. and abroad. By

applying the FISC-ordered RAS standard to telephone identifiers used to query the metadata,

NSA intelligence analysts are able to: (i) detect domestic identifiers calling foreign identifiers

associated with one of the foreign terrorist organizations and discover identifiers that the foreign

identifiers are in contact with; (ii) detect foreign identifiers associated with a foreign terrorist

organization calling into the U.S. and discover which domestic identifiers are in contact with the

foreign identifiers; and (iii) detect possible terrorist-related communications occurring between

communicants located inside the U.S.

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45. Although the NSA possesses a number of sources of information that can each be

used to provide separate and independent indications of potential terrorist activity against the

U.S. and its interests abroad, the best analysis occurs when NSA intelligence analysts can

consider the information obtained from each of those sources together to compile and

disseminate to the FBI as complete a picture as possible of a potential terrorist threat. While

telephony metadata is not the sole source of information available to NSA counterterrorism

personnel, it provides a component of the information NSA intelligence analysts rely upon to

execute this threat identification and characterization role.

46. An advantage of bulk metadata analysis as applied to telephony metadata, which are

interconnected in nature, is that it enables the Government to quickly analyze past connections

;md chains of communication. Unless the data is aggregated, it may not be feasible to detect

chains of communications that cross communication networks. The ability to query accumulated

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telephony metadata significantly increases the NSA's ability to rapidly detect persons affiliated

I
:

with the identified foreign terrorist organizations who might otherwise go undetected.

I

l

47. Specifically, when the NSA performs a contact-chaining query on a terrorist

I '

associated telephone identifier, it is able to detect not only the further contacts made by that first

l

1

tier of contacts, but the additional tiers of contacts, out to a maximum of three "hops" from the

I

original identifier, as authorized by the applicable FISC order. The collected metadata thus holds

contact information that can be immediately accessed as new terrorist-associated telephone

identifiers are identified. Multi-tiered contact chaining identifies not only the terrorist's direct

associates but also indirect associates, and, therefore provides a more complete picture of those

who associate with terrorists and/or are engaged in terrorist activities.

16

Case 1:13-cv-00851-RJL Document 25-4 Filed 11/12/13 Page 18 of 46
48. Another advantage of the metadata collected in this matter is that it is historical in nature, reflecting contact activity from the past. Given that terrorist operatives often lie dormant for extended periods of time, historical connections are critical to understanding a newlyidentified target, and metadata may contain links that are unique, pointing to potential targets that may otherwise be missed.
49. Bulk metadata analysis under Section 215 thus enriches NSA intelligence analysts' understanding of the communications tradecraft of terrorist operatives who may be preparing to conduct attacks against the U.S. This analysis can be important considering that terrorist operatives often take affirmative and intentional steps to disguise and obscure their communications.
50. Furthermore, the Section 215 metadata program complements information that the NSA collects via other means and is valuable to NSA, in support of the FBI, for linking possible terrorist-related telephone communications that occur between communicants based solely inside the U.S.
51. As a complementary tool to other intelligence authorities, the NSA' s access to telephony metadata improves the likelihood of the Government being able to detect terrorist cell contacts within the U.S. With the metadata collected under Section 215 pursuant to FISC orders, the NSA has the information necessary to perform the call chaining that enables NSA intelligence analysts to obtain a much fuller understanding of the target and, as a result, allows the NSA to provide FBI with a more complete picture of possible terrorist-related activity occurring inside the U.S.
17

Case 1:13-cv-00851-RJL Document 25-4 Filed 11/12/13 Page 19 of 46
52. The value of telephony metadata collected under Section 215 is not hypothetical. While many specific instances of the Government's use of telephony metadata under Section 215 remain classified, a number of instances have been disclosed in declassified materials.
53. An illustration of the particular value of the bulk metadata program under Section 215-and a tragic example of what can occur in its absence--is the case of9/11 hijacker Khalid al-Mihdhar, which I have described above. The Section 215 telephony metadata collection program addresses the information gap that existed at the time of the al-Mihdhar case. It allows the NSA to rapidly and effectively note these types of suspicious contacts and, when appropriate, to tip them to the FBI for follow-on analysis or action.
54. Furthermore, once an identifier has been detected, the NSA can use bulk telephony metadata along with other data sources to quickly identify the larger network and possible coconspirators both inside and outside the U.S. for further investigation by the FBI with the goal of preventing future terrorist attacks.
55. As the case examples in the FBI declaration accompanying the defendants' response motion demonstrates, Section 215 bulk telephony metadata is a resource not only in isolation, but also for investigating threat leads obtained from other SIGINT collection or partner agencies. This is especially true for the NSA-FBI partnership. The Section 215 telephony metadata program enables NSA intelligence analysts to evaluate potential threats that it receives from or reports to the FBI in a more complete manner than if this data source were unavailable.
56. Section 215 bulk telephony metadata complements other counterterrorist-related collection sources by serving as a significant enabler for NSA intelligence analysis. It assists the NSA in applying limited linguistic resources available to the counterterrorism mission against Jinks that have the highest probability of connection to terrorist targets. Put another way, while
18

Case 1:13-cv-00851-RJL Document 25-4 Filed 11/12/13 Page 20 of 46
Section 215 does not contain content, analysis of the Section 215 metadata can help the NSA prioritize for content analysis communications of non-U.S. persons which it acquires under other authorities. Such persons are of heightened interest if they are in a communication network with persons located in the U.S. Thus, Section 215 metadata can provide the means for steering and applying content analysis so that the U.S. Government gains the best possible understanding of terrorist target actions and intentions.
57. Reliance solely on traditional, case-by-case intelligence gathering methods, restricted to known terrorist identifiers, would significantly impair the NSA's ability to accomplish many of the aforementioned objectives.
58. Without the ability to obtain and analyze bulk metadata, the NSA would lose a tool for detecting communication chains that link to identifiers associated with known and suspected terrorist operatives, which can lead to the identification of previously unknown persons of interest in support of anti-terrorism efforts both within the U.S. and abroad. Having the bulk telephony metadata available to query is part of this effort, as there is no way to know in advance which numbers will be responsive to the authorized queries.
59. The bulk metadata allows retrospective analyses of prior communications of newlydiscovered terrorists in an efficient and comprehensive manner. Any other means that might be used to attempt to conduct similar analyses would require multiple, time-consuming steps that would frustrate needed rapid analysis in emergent situations, and could fail to capture some data available through bulk metadata analysis.
60. If the telephony metadata are not aggregated and retained for a sufficient period of time, it will not be possible for the NSA to detect chains of communications that cross different providers and telecommunications networks. But for the NSA' s metadata collection, the NSA
19

Case 1:13-cv-00851-RJL Document 25-4 Filed 11/12/13 Page 21 of 46

l '

J

j

would need to seek telephonic records from multiple providers whenever a need to inquire arose,

and each such provider may not maintain records in a format that is subject to a standardized

query.

61. Thus, contrary to plaintiffs' suggestion, the Government could not achieve the

aforementioned benefits of section 215 metadata collection through alternative means.

62. While plaintiffs suggest the use of more targeted inquiries-whether through a

subpoena, national security letter (''NSL"), or pen register or trap-and-trace ("PRITT") device

authorized under the FISA- solely of records directly pertaining to a terrorism subject, those

measures would fail to permit the comprehensive and retrospective analyses detailed above of

communication chains that might, and sometimes do, reveal previously unknown persons of

interest in terrorism investigations. Targeted inquiries also would fail to capture

communications chains and overlaps that can be of investigatory significance, because targeted inquiries would eliminate the NSA's ability to collect and analyze metadata of communications

occUrring at the second and third "hop" from a terrorist suspect's initial "seed"; rather, they

would only reveal communications directly involving the specific targets in question. In other

words, targeted inquiries would capture only one "hop." As a result, the Government's ability

to discover and analyze communications metadata revealing the fact that as-yet unknown

identifiers are linked in a chain of communications with identified terrorist networks would be

impaired. 63. In sum, any order barring the Government from employing the section 215 metadata

collection program would deprive the Government of unique capabilities that could not be completely replicated by other means, and as a result would cause an increased risk to national

security and the safety of the American public.

20

Case 1:13-cv-00851-RJL Document 25-4 Filed 11/12/13 Page 22 of 46

j

j

I
j

BURDEN OF COMPLYING WITH A PRELIMINARY INJUNCTION

·'l

64. Beyond harming national security and the Government's counterterrorism

t

capabilities, plaintiffs' proposed preliminary injunction would seriously burden the Government.

_\

I

1

While plaintiffs seek an order barring the Government from collecting metadata reflecting their

l

calls, the Government does not know plaintiffs' phone numbers, and would need plaintiffs to

~

I
!

identify all numbers they use to even attempt to implement such an injunction. Ironically, as

t
explained above, these numbers are not currently visible to NSA intelligence analysts unless they

1

'

are within a three hops of a call chain of a number that based on RAS is associated with a foreign

terrorist organization.

65. Even if plaintiffs' phone numbers were available, extraordinarily burdensome

technical and logistical hurdles to compliance with a preliminary injunction order would remain.

Technical experts would have to develop a solution such as removing the numbers from the

system upon receipt of each batch of metadata or developing a capability whereby plaintiffs'

numbers would be received by NSA but would not be visible in response to an authorized query.

l

To identify, design, build, and test the best implementation solution would potentially require the

creation of new full-time positions and could take six months or more to implement. Once

implemented, any potential solution could undermine the results of any authorized query of a

phone number that based on RAS is associated with one of the identified foreign terrorist

organizations by eliminating, or cutting off potential call chains. If this Court were to grant a

preliminary injunction and the defendants were to later prevail on the merits of this litigation, it

could prove extremely difficult to develop a solution to reinsert any quarantined records and

would likely take considerable resources and several months to build, test, and implement a re-

insertion capability suited to this task.

21

Case 1:13-cv-00851-RJL Document 25-4 Filed 11/12/13 Page 23 of 46

I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

DATE: ;{J-f-13

Teresa H. Shea Signals Intelligence Director National Security Agency

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 4, 2014

Decided August 28, 2015

No. 14-5004
BARACK HUSSEIN OBAMA, ET AL., APPELLANTS v.

LARRY ELLIOTT KLAYMAN, ET AL., APPELLEES ______

Consolidated with 14-5005, 14-5016, 14-5017 ______

Appeal from the United States District Court for the District of Columbia (No. 1:13-cv-851) (No. 1:13-cv-881) ______

H. Thomas Byron, III, Attorney, U.S. Department of Justice, argued the cause for appellants/cross-appellees. With him on the briefs were Stuart F. Delery, Assistant Attorney General, Ronald C. Machen, Jr., U.S. Attorney, and Douglas N. Letter and Henry C. Whitaker, Attorneys.
Larry E. Klayman argued the cause and filed the briefs for appellees/cross-appellants.
Cindy A. Cohn argued the cause for amici curiae Electronic Frontier Foundation, et al. On the brief were Alex Abdo, Jameel Jaffer, Arthur B. Spitzer, and Mark Rumold.

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Paul M. Smith argued the cause for amicus curiae Center for National Security Studies. With him on the brief were Kate A. Martin, Joseph Onek, and Michael Davidson.
Before: BROWN, Circuit Judge, and WILLIAMS and SENTELLE, Senior Circuit Judges.
Opinion for the Court filed PER CURIAM.
Separate opinions filed by Circuit Judge BROWN and Senior Circuit Judge WILLIAMS.
Opinion dissenting in part filed by Senior Circuit Judge SENTELLE.
PER CURIAM: In the wake of the terrorist attacks of September 11, 2001, Congress enacted the USA PATRIOT Act. Pub. L. No. 107-56, 115 Stat. 272 (2001). Section 215 of that Act empowered the FBI to request, and the Foreign Intelligence Surveillance Court (“FISC”) to enter, orders “requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation . . . to protect against international terrorism.” Id. at § 215, 115 Stat. at 291, codified as amended at 50 U.S.C. § 1861(a)(1). Since May 2006, the government has relied on this provision to operate a program that has come to be called “bulk data collection,” namely, the collection, in bulk, of call records produced by telephone companies containing “telephony metadata”—the telephone numbers dialed (incoming and outgoing), times, and durations of calls. The FBI has periodically applied for, and the FISC has entered, orders instructing one or more telecommunications service providers to produce, on a daily basis over a period of ninety days, electronic copies of such data. Decl. of Robert J. Holley, Acting Assistant FBI Director, at ¶¶ 10-13, Joint Appendix 224-25.

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Under the program, the collected metadata are consolidated into a government database, where (except in exigent circumstances) the NSA may access it only after demonstrating to the FISC a “reasonable articulable suspicion” that a particular phone number is associated with a foreign terrorist organization. Gov’t’s Br. at 11-12. Even then, the NSA may retrieve call detail records only for phone numbers in contact with the original number—within two steps, or “hops” of it. Id. at 11. If telephone number A was used to call telephone number B, which in turn was used to call telephone number C, and if the FISC affirms the government’s “reasonable articulable suspicion” that A is associated with a foreign terrorist organization, the FISC may authorize the government to retrieve from the database the metadata associated with A, B, and C. (Before 2014, the FISC orders allowed the government to conduct queries for any number within three steps of the approved identifier, and the FISC did not play any role in assessing the government’s “reasonable articulable suspicion” for each query. Id. at 12 n.3). Once the government has retrieved the metadata, which does not include the content of the calls or the identities of the callers, it uses the data “in conjunction with a range of analytical tools to ascertain contact information that may be of use in identifying individuals who may be associated with certain foreign terrorist organizations because they have been in communication with certain suspected-terrorist telephone numbers or other selectors.” Id. at 9, 15.
Plaintiffs contend that this bulk collection constitutes an unlawful search under the Fourth Amendment; they seek injunctive and declaratory relief as well as damages. Third Amended Complaint ¶ 53, Klayman v. Obama, 13-cv-851 (D.D.C. Feb. 10, 2014), ECF No. 77. The district court issued a preliminary injunction barring the government from

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collecting plaintiffs’ call records, but stayed its order pending appeal. Klayman v. Obama, 957 F. Supp. 2d 1, 44-45 (2013).
The court reverses the judgment of the district court, and for the reasons stated in the opinions of Judge Brown and Judge Williams orders the case remanded to the district court. (Judge Sentelle dissents from the order of remand and would order the case dismissed.) The opinions of the judges appear below after a brief explanation of why the case is not moot.
* * *
Under a “sunset” clause, the section of the U.S. Code amended by Section 215 was scheduled to revert to its pre2001 form on June 1, 2015 unless Congress acted. See Pub. L. No. 109-177, § 102(b)(1), 120 Stat. 192, 194-95 (2006); Pub. L. No. 112-14, § 2(a), 125 Stat. 216, 216 (2011). That date came and went without any legislative action. One day after the deadline, however, Congress enacted the USA Freedom Act, which revived the language added by Section 215 with some substantial changes. See Pub. L. No. 114-23, Tit. I, 129 Stat. 268, 269-77 (2015), codified at 50 U.S.C. § 1861. The Act’s changes do not take effect until 180 days after the date of enactment (June 2, 2015). Id. § 109(a), 129 Stat. at 276. And the legislation provides for continuation of pre-existing authority until the effective date of the new legislation: “Nothing in this Act shall be construed to alter or eliminate the authority of the Government to obtain an order under title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) as in effect prior to the effective date . . . during the period ending on such effective date.” Id. § 109(b), 129 Stat. at 276.
Cessation of a challenged practice moots a case only if “there is no reasonable expectation . . . that the alleged violation will recur.” Larsen v. U.S. Navy, 525 F.3d 1, 4

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(D.C. Cir. 2008) (quotations and citations omitted). Here, any lapse in bulk collection was temporary. Immediately after Congress acted on June 2 the FBI moved the FISC to recommence bulk collection, United States’ Mem. of Law, In re Application of the FBI, No. BR 15-75 (FISC, filed Jun. 2, 2015), and the FISC confirmed that it views the new legislation as effectively reinstating Section 215 for 180 days, and as authorizing it to resume issuing bulk collection orders during that period. See Opinion and Order, In re Application of the FBI, Nos. BR 15-75, Misc. 15-01 (FISC June 29, 2015) (Mosman, J.); Mem. Op., In re Applications of the FBI, Nos. BR 15-77, BR 15-78 (FISC Jun. 17, 2015) (Saylor, J.). Accordingly, plaintiffs and the government stand in the same positions that they did before June 1, 2015.
* * *
The preliminary injunction entered by the district court is hereby vacated and the case remanded for such further proceedings as may be appropriate.
So ordered.

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BROWN, Circuit Judge: I disagree with the district court’s conclusion that plaintiffs have established a “substantial likelihood of success on the merits.” See, e.g., Sottera, Inc. v. Food & Drug Admin., 627 F.3d 891, 893 (D.C. Cir. 2010). I write separately to emphasize that, while plaintiffs have demonstrated it is only possible—not substantially likely—that their own call records were collected as part of the bulk-telephony metadata program, plaintiffs have nonetheless met the bare requirements of standing. Accordingly, I join the court in vacating the preliminary injunction entered by the district court.
In order to establish his standing to sue, a plaintiff must show he has suffered a “concrete and particularized” injury. Lujan v. Defenders of Wildlife, 504 U.S.555, 560–61 (1992). In other words, plaintiffs here must show their own metadata was collected by the government. See, e.g., Clapper v. Amnesty International, 133 S. Ct. 1138, 1148 (2013) (“[R]espondents fail to offer any evidence that their communications have been monitored under § 1881a, a failure that substantially undermines their standing theory.”); ACLU v. NSA, 493 F.3d 644, 655 (6th Cir. 2007) (“If, for instance, a plaintiff could demonstrate that her privacy had actually been breached (i.e., that her communications had actually been wiretapped), then she would have standing to assert a Fourth Amendment cause of action for breach of privacy.”); Halkin v. Helms, 690 F.2d 977, 999–1000 (D.C. Cir. 1982) (“[T]he absence of proof of actual acquisition of appellants’ communications is fatal to their watchlisting claims.”).
The record, as it stands in the very early stages of this litigation, leaves some doubt about whether plaintiffs’ own metadata was ever collected. Plaintiffs’ central allegation is that defendants “violated the Fourth Amendment to the U.S. Constitution when they unreasonably searched and seized and

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continue to search Plaintiffs’ phone records . . . without reasonable suspicion or probable cause.” Third Amended Complaint at ¶ 53, Klayman I, 957 F. Supp. 2d 1. Plaintiffs have supported this claim with specific facts, notably: (1) The NSA operates a bulk telephony-metadata collection program; and (2) on April 25, 2013, the FISC issued an order requiring Verizon Business Network Services to produce its subscribers’ call detail records to the NSA on a daily basis from April 25, 2013 to July 19, 2013. However, plaintiffs are Verizon Wireless subscribers and not Verizon Business Network Services subscribers. Thus, the facts marshaled by plaintiffs do not fully establish that their own metadata was ever collected.
In his opinion below, Judge Leon eloquently explains how these facts are nonetheless sufficient to draw the inference that “the NSA has collected and analyzed [plaintiffs’] telephony metadata and will continue to operate the program consistent with FISC opinions and orders.” Klayman v. Obama, 957 F. Supp. 2d 1, 29 (D.D.C. 2013). In particular, Judge Leon infers from the government’s efforts to “create a comprehensive metadata database” that “the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT&T and Sprint, the second[-] and third-largest carriers.” Id. at 27.
As Judge Leon’s opinion makes plain, plaintiffs have set forth significant evidence about the NSA’s bulk-telephony metadata program. As a result, this case is readily distinguishable from cases like Tooley v. Napolitano, 586 F.3d 1006 (D.C. Cir. 2009), in which allegations of unlawful surveillance were dismissed as “patently insubstantial.” Id. at 1009–10 (concluding that the governmental surveillance scheme described in plaintiff’s allegations was “not

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realistically distinguishable from allegations of little green men.”).
This evidence also sets this case apart from Clapper. There, plaintiffs’ claim of standing relied “on a highly attenuated chain of possibilities.” 133 S. Ct. at 1148. One link of that chain was that plaintiffs’ “theory necessarily rests on their assertion that the Government will target other individuals—namely, their foreign contacts.”1 Id. The Clapper plaintiffs, however, had “no actual knowledge of the Government’s § 1881a targeting practices” nor could they even show that the surveillance program they were challenging even existed. Id. at 1148–49 (“Moreover, because § 1881a at most authorizes—but does not mandate or direct—the surveillance that respondents fear, respondents’ allegations are necessarily conjectural.”); cf. United Presbyterian Church in the USA v. Reagan, 738 F.2d 1375, 1380–81 (D.C. Cir. 1984) (dismissing a complaint as a “generalized grievance” against the “entire national intelligence-gathering system” where plaintiffs were unable to show the injury they suffered was the result of a specific government surveillance program.) By contrast, here, plaintiffs have set forth specific evidence showing that the government operates a bulk-telephony metadata program that collects subscriber information from domestic telecommunications providers, including Verizon Business Network Services. Contrary to the assertions of my colleagues, these facts bolster plaintiffs’ position: where the Clapper plaintiffs relied on speculation and conjecture to press their claim, here, plaintiffs offer an inference derived
1 The statute authorizing the surveillance program at issue in Clapper, 50 U.S.C. § 1881a, explicitly provided that, as U.S. persons, plaintiffs could not be targeted for surveillance. 133 S. Ct. at 1148.

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from known facts. See In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from Verizon Business Network Services, Inc. on behalf of MCI Communication Services, Inc. d/b/a Verizon Business Services, No. BR-13-80 (Foreign Intelligence Surveillance Court, April 25, 2013), J.A. 250–53.2
However, the burden on plaintiffs seeking a preliminary injunction is high. Plaintiffs must establish a “substantial likelihood of success on the merits.” Sottera, Inc., 627 F.3d at 893. Although one could reasonably infer from the evidence presented the government collected plaintiffs’ own metadata, one could also conclude the opposite. Having barely fulfilled the requirements for standing at this threshold stage, Plaintiffs fall short of meeting the higher burden of proof required for a preliminary injunction.
Judge Williams is right to remind us that any number of unexpected constraints may frustrate the effectiveness of a given program. Appropriations may fall short. Technicians may err. Legal challenges may stymie the most dedicated bureaucrats.3 But while post hoc obstacles may undermine a program’s efficacy, they do not alter its intended objective, which, here, remains (commonsensically) the comprehensive collection of telephonic metadata.
2 Although originally classified “top secret,” this order was declassified on July 11, 2013. The order expired on July 19, 2013.
3 FISA provides that a “person receiving a production order may challenge the legality of [that order]…by filing a petition with the [FISC].” 50 U.S.C. § 1861 (f)(2)(A)(i). However, such petitions are filed under seal and may not be disclosed. Id. § 1861 (d)(1), (f)(2)(D)(4), (f)(2)(D)(5).

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On remand it is for the district court to determine whether limited discovery to explore jurisdictional facts is appropriate. See, e.g., Natural Resources Defense Council v. Pena, 147 F.3d 1012, 1024 (D.C. Cir. 1998). Of course, I recognize that, in order for additional discovery to be meaningful, one of the obstacles plaintiffs must surmount is the government’s unwillingness to make public a secret program. See United Presbyterian Church in the U.S.A., 738 F.2d at 1382; cf. ACLU, 493 F.3d at 655 (“In the present case, the plaintiffs concede that there is no single plaintiff who can show that he or she has actually been wiretapped. Moreover, due to the State Secrets Doctrine, the proof needed either to make or negate such a showing is privileged, and therefore withheld from discovery or disclosure.”). It is entirely possible that, even if plaintiffs are granted discovery, the government may refuse to provide information (if any exists) that would further plaintiffs’ case. Plaintiffs’ claims may well founder in that event. But such is the nature of the government’s privileged control over certain classes of information. Plaintiffs must realize that secrecy is yet another form of regulation, prescribing not “what the citizen may do” but instead “what the citizen may know.” DANIEL P. MOYNIHAN, SECRECY: THE AMERICAN EXPERIENCE 59 (1999). Regulations of this sort may frustrate the inquisitive citizen but that does not make them illegal or illegitimate. Excessive secrecy limits needed criticism and debate. Effective secrecy ensures the perpetuation of our institutions. In any event, our opinions do not comment on the propriety of whatever privileges the government may have occasion to assert.

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WILLIAMS, Senior Circuit Judge: “[A] party seeking a preliminary injunction must demonstrate, among other things, a likelihood of success on the merits.” Munaf v. Geren, 553 U.S. 674, 690 (2008) (internal quotations and citations omitted); see also Mills v. District of Columbia, 571 F.3d 1304, 1308 (D.C. Cir. 2009) (requiring a “substantial likelihood of success on the merits”) (emphasis added) (quotations and citations omitted). In this context, the “merits” on which plaintiff must show a likelihood of success encompass not only substantive theories but also establishment of jurisdiction. The “affirmative burden of showing a likelihood of success on the merits . . . necessarily includes a likelihood of the court’s reaching the merits, which in turn depends on a likelihood that plaintiff has standing.” Nat’l Wildlife Fed’n v. Burford, 835 F.2d 305, 328 (D.C. Cir. 1987) (Williams, J., concurring and dissenting). And to show standing, a plaintiff must demonstrate an “injury in fact” that is “actual or imminent, not conjectural or hypothetical.” Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 180 (2000).
Plaintiffs claim to suffer injury from government collection of records from their telecommunications provider relating to their calls. But plaintiffs are subscribers of Verizon Wireless, not of Verizon Business Network Services, Inc.—the sole provider that the government has acknowledged targeting for bulk collection. Gov’t’s Br. at 38; Appellees’ Br. at 26-28; see also Secondary Order, In re Application of FBI, No. BR 13-80 (FISC, Apr. 25, 2013) (Vinson, J.). Thus, unlike some others who have brought legal challenges to the bulk collection program, plaintiffs lack direct evidence that records involving their calls have actually been collected. Cf. ACLU v. Clapper, 785 F.3d 787, 801 (2d Cir. 2015) (finding that Verizon Business subscribers had standing to challenge the bulk collection program because “the government’s own orders demonstrate that appellants’

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call records are indeed among those collected as part of the telephone metadata program”).
Plaintiffs’ contention that the government is collecting data from Verizon Wireless (a contention that the government neither confirms nor denies, Gov’t’s Br. at 38-39), depends entirely on an inference from the existence of the bulk collection program itself. Such a program would be ineffective, they say, unless the government were collecting metadata from every large carrier such as Verizon Wireless; ergo it must be collecting such data. Appellee’s Br. 27-28. This inference was also the district judge’s sole basis for finding standing. Klayman v. Obama, 957 F. Supp. 2d 1, 27 & n.36 (2013).
Yet the government has consistently maintained that its collection “never encompassed all, or even virtually all, call records and does not do so today.” Gov’t’s Br. at 39; Decl. of Teresa Shea, NSA Signals Intelligence Director at ¶ 8, Addendum to Gov’t’s Br. at 101 (similar). While one district judge has claimed that “the Government acknowledged that since May 2006, it has collected this information for substantially every telephone call in the United States,” neither of his sources—an Administration “White Paper” and a declaration by an NSA official—actually supports the claim. ACLU v. Clapper, 959 F. Supp. 2d 724, 735 (S.D.N.Y. 2013), vacated and remanded, 785 F.3d 787 (2d Cir. 2015); see Administration White Paper, Bulk Collection of Telephony Metadata Under Section 215 of the USA Patriot Act at 3 (Aug. 9, 2013) (“FBI obtains orders from the FISC directing certain telecommunications service providers to produce business records that contain information about communications between telephone numbers . . .” (emphasis added)); Decl. Teresa Shea ¶ 14, ACLU v. Clapper, 13-cv3994 (S.D.N.Y. Oct. 1, 2013), ECF No. 63 (“FBI obtains orders from the FISC directing certain telecommunications

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service providers to produce all business records created by them (known as call detail records) that contain information about communications between telephone numbers” (emphasis added)).
I note the Second Circuit’s observation that the government had not “seriously” disputed the contention that “all significant service providers” were subject to the bulk collection program. ACLU, 785 F.3d at 797. But in that case the government said, “Various details of the program remain classified, precluding further explanation here of its scope,” and went on to insist that “the record does not support the conclusion that the program collects ‘virtually all telephony metadata’ about telephone calls made or received in the United States. Nor is that conclusion correct.” See Appellees’ Br. at 7, ACLU v. Clapper, No. 14-42 (2d Cir. filed Apr. 10, 2014) (citations omitted). Thus the government’s assertions in the two cases are parallel. Of course the Second Circuit’s comment was irrelevant to its conclusion, as the plaintiffs in that case were not subscribers of Verizon Wireless but of Verizon Business, whose data the government acknowledged collecting. See ACLU, 785 F.3d at 801.
It appears true, as plaintiffs and the district court suggest, that the effectiveness of the program expands with its coverage; every number that goes uncollected reduces the utility of the government’s “two-hop” querying. Indeed, it may well be that a reduction in coverage of, say, 50% would diminish the effectiveness of the program by far more than that proportion. Yet, in the face of the government’s representations that it has never collected “all, or even virtually all” call records, I find plaintiffs’ claimed inference inadequate to demonstrate a “substantial likelihood” of injury.
Clapper v. Amnesty International, 133 S. Ct. 1138 (2013), represents the Supreme Court’s most recent

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evaluation of comparable inferences and cuts strongly against plaintiffs’ claim that they have a substantial likelihood of prevailing as to standing. There, a group of US-based “attorneys and human rights, labor, legal, and media organizations” challenged the surveillance authorized by the FISA Amendments Act of 2008. Id. at 1145. The statute empowered the Attorney General and the Director of National Intelligence to jointly seek an order from the FISC authorizing “the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information” for a period of up to one year. 50 U.S.C. § 1881a. Plaintiffs claimed they were injured by the surveillance because their work required them “to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, sources, and other individuals located abroad” and that “some of the people with whom they exchange foreign intelligence information [we]re likely targets of surveillance under § 1881a” because they communicate with “people the Government ‘believes or believed to be associated with terrorist organizations,’ ‘people located in geographic areas that are a special focus’ of the Government’s counterterrorism or diplomatic efforts, and activists who oppose governments that are supported by the United States Government.” 133 S. Ct. at 1145.
But as the Court observed, the Clapper plaintiffs had “no actual knowledge of the Government’s § 1881a targeting practices” and accordingly “merely speculate[d] and ma[d]e assumptions about whether their communications with their foreign contacts will be acquired under § 1881a.” Id. at 1148. The premises for their speculation were hardly trivial. They claimed (and it was not disputed) (1) that they engaged in communications eligible for surveillance under the disputed section, (2) that the government had a strong motive to intercept these particular communications because of the subject matter and identities involved, (3) that the government

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had (under separate legal authority) already intercepted 10,000 phone calls and 20,000 emails involving one individual who is now in regular communication with one of the plaintiffs, and (4) that the government had the capacity to intercept these communications. Id. at 1157-59. The Court held that these allegations left it merely “speculative whether the Government w[ould] imminently target communications to which respondents [we]re parties,” and so provided an inadequate basis for standing. Id. at 1148-49 (citations and some quotations omitted).
Here, the plaintiffs’ case for standing is similar to that rejected in Clapper. They offer nothing parallel to the Clapper plaintiffs’ evidence that the government had previously targeted them or someone they were communicating with (No. 3 above). And their assertion that NSA’s collection must be comprehensive in order for the program to be most effective is no stronger than the Clapper plaintiffs’ assertions regarding the government’s motive and capacity to target their communications (Nos. 2 & 4 above).
The strength of plaintiffs’ inference from the government’s interest in having an effective program rests on an assumption that the NSA prioritizes effectiveness over all other values. In fact, there are various competing interests that may constrain the government’s pursuit of effective surveillance. Plaintiffs’ inference fails to account for the possibility that legal constraints, technical challenges, budget limitations, or other interests prevented NSA from collecting metadata from Verizon Wireless. Many government programs (even ones associated with national defense) seem to be calibrated or constrained by collateral concerns not directly related to the program’s stated objectives, such as funding deficiencies, bureaucratic inertia, poor leadership, and diversion to non-defense interests of resources nominally dedicated to defense. It is possible that such factors have

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operated to hamper the breadth of the NSA’s collection. In fact, both the district court and the plaintiffs contradict their own assertions about the effectiveness of the program by emphatically asserting its ineffectiveness in support of their conclusions that it violates the Fourth Amendment. See Klayman, 957 F. Supp. 2d at 40-41 (“I have serious doubts about the efficacy of the metadata collection program . . . .”); Appellees’ Br. at 47-49; Appellees’ Reply at 30-33.
Judge Brown distinguishes Clapper on the grounds that the plaintiffs here have offered “specific evidence” about the government’s bulk collection program. Op. of Brown, J., at 3. But, assuming their evidence to be in some sense more specific, the relevant inquiry is whether that evidence indicates that the program targets plaintiffs. As to that, the plaintiffs here do no better than those in Clapper.
Plaintiffs complain that the government should not be allowed to avoid liability simply by keeping the material classified. But the government’s silence regarding the scope of bulk collection is a feature of the program, not a bug. The Clapper Court rejected a request for “in camera” review of classified government materials precisely on the ground that any such approach would tend to undermine the program’s effectiveness:
As an initial matter, it is respondents’ burden to prove their standing by pointing to specific facts, not the Government’s burden to disprove standing by revealing details of its surveillance priorities. Moreover, this type of hypothetical disclosure proceeding would allow a terrorist (or his attorney) to determine whether he is currently under U.S. surveillance simply by filing a lawsuit challenging the Government’s surveillance program. Even if the terrorist’s attorney were to comply with a

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protective order prohibiting him from sharing the Government’s disclosures with his client, the court’s postdisclosure decision about whether to dismiss the suit for lack of standing would surely signal to the terrorist whether his name was on the list of surveillance targets.
133 S. Ct. at 1149 n.4 (citations omitted). These considerations apply with equal force here, where the government has sought to maintain a similarly strategic silence regarding the scope of its bulk collection.
It is true that Clapper came to the Court on review of cross-motions for summary judgment, not a preliminary injunction, but the Court’s rejection of the Clapper plaintiffs’ claims is nonetheless telling. Those plaintiffs actually faced a lighter burden than do ours: in granting the government’s motion for summary judgment, the Court necessarily found that plaintiffs’ inferences were inadequate even to preserve the question of standing as a “genuine issue.” See Amnesty Int’l USA v. McConnell, 646 F. Supp. 2d 633, 641 (S.D.N.Y. 2009) (quoting Fed. R. Civ. P. 56(c)), vacated and remanded sub nom. Amnesty Int’l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011), rev’d, 133 S. Ct. 1138 (2013). Here, by contrast, plaintiffs must show a “substantial likelihood” of standing.
Accordingly, I find that plaintiffs have failed to demonstrate a “substantial likelihood” that the government is collecting from Verizon Wireless or that they are otherwise suffering any cognizable injury. They thus cannot meet their burden to show a “likelihood of success on the merits” and are not entitled to a preliminary injunction.
It remains possible that on remand plaintiffs will be able to collect evidence that would establish standing. Indeed, noting that the government was “uniquely in control of the facts, information, documents, and evidence regarding the

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extent and nature of their mass surveillance,” they moved in the district court to depose “an employee of the NSA.” Pls.’ Mot. For Leave, Klayman v. Obama, 13-cv-851 (D.D.C. Oct. 30, 2013), ECF No. 15. But the district judge denied the motion as moot after granting the preliminary injunction. Minute Order, Klayman v. Obama, 13-cv-851 (D.D.C. Jan. 21, 2014). Given the possibility that plaintiffs’ efforts along these lines may be fruitful, I join Judge Brown in remanding to the district court for it to decide whether limited discovery to explore jurisdictional facts is appropriate.
I am uncertain about the meaning of Judge Brown’s view that although plaintiffs have failed to show a substantial likelihood of success on standing, they have nonetheless “fulfilled the requirements for standing,” if only “barely.” Op. of Brown, J., at 4. If the latter “fulfill[ment]” means simply that standing cannot be ruled out and thus poses no jurisdictional obstacle to discovery on standing, I agree. To the extent that Judge Brown regards the “burden of proof required for a preliminary injunction” as “higher,” id., I don’t understand in what sense the burden would be higher than in other contexts (motions for judgment on the pleadings, for summary judgment, or after hearing), or the basis for regarding it as higher than in those contexts.

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SENTELLE, Senior Circuit Judge, dissenting in part: I will not restate either the facts or the background law, as I fully agree with my colleagues’ statements on those subjects. Indeed, I agree with virtually everything in Judge Williams’ opinion, save for its conclusion, and I even agree with part of that. My colleagues believe that the preliminary injunction entered by the district court must be vacated, as plaintiffs have failed to establish a “substantial likelihood of success on the merits.” Brown Op. 1; Williams Op. 3. I agree. However, my colleagues also believe that the case should be remanded for further proceedings. I do not agree. Like Judge Williams, I believe that the failure to establish the likelihood of success depends at least in the first instance on plaintiffs’ inability to establish the jurisdiction of the court. I also agree with Judge Williams that plaintiffs have not established the jurisdiction of the court. That being the case, I would not remand the case for further proceedings, but would direct its dismissal.
As my colleagues recognize, in order to bring a cause within the jurisdiction of the court, the plaintiffs must demonstrate, inter alia, that they have standing. “[T]o show standing, a plaintiff must demonstrate an ‘injury in fact’ that is ‘actual or imminent, not conjectural or hypothetical.’” Williams Op. at 1 (quoting Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). As Judge Williams goes on to note, “[p]laintiffs claim to suffer injury from government collection of records from their telecommunications provider relating to their calls.” Id. at 1; see also Brown Op. 2. However, plaintiffs never in any fashion demonstrate that the government is or has been collecting such records from their telecommunications provider, nor that it will do so. Briefly put, and discussed in more detail by Judge Williams, plaintiffs’ theory is that because it is a big collection and they use a big carrier, the government must be getting at their records. While this may be a better-than-usual conjecture, it is nonetheless no more

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than conjecture.
As Judge Williams further notes, “Clapper v. Amnesty International, 133 S. Ct. 1138 (2013), represents the Supreme Court’s most recent evaluation of comparable inferences and cuts strongly against plaintiffs’ claim that they have a substantial likelihood of prevailing as to standing.” Williams Op. at 3–4. While Clapper involved collection under a different statutory authorization, the standing claims of the plaintiffs before us and the plaintiffs in that case are markedly similar. In fact, the plaintiffs’ claim before us is weaker than that of the Clapper plaintiffs. The Clapper plaintiffs at least claimed that the government had previously targeted them or someone with whom they were communicating. The plaintiffs before us make no such claim. I would go farther than Judge Williams. Clapper does not just “cut[ ] strongly against plaintiffs’ claims that they have a substantial likelihood of prevailing as to standing,” Clapper cuts their claims out altogether.
Plaintiffs have not demonstrated that they suffer injury from the government’s collection of records. They have certainly not shown an “injury in fact” that is “actual or imminent, not conjectural or hypothetical.” Friends of the Earth, Inc., 528 U.S. at 180. I agree with the conclusion of my colleagues that plaintiffs have not shown themselves entitled to the preliminary injunction granted by the district court. However, we should not make that our judicial pronouncement, since we do not have jurisdiction to make any determination in the cause. I therefore would vacate the preliminary injunction as having been granted without jurisdiction by the district court, and I would remand the case, not for further proceedings, but for dismissal.
In Clapper, the Court stated, “Yet respondents have no

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actual knowledge of the Government’s . . . targeting practices. Instead, respondents merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired . . . .” 133 S. Ct. at 1148. After discussing the speculative nature of plaintiffs’ claims, the Supreme Court summed up its decision as “respondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to [the government’s acts].” Id. at 1150. Therefore, in a conclusion fully applicable to the case before us, the Supreme Court held “that respondents lack Article III standing because they cannot demonstrate that the future injury they purportedly fear is certainly impending and because they cannot manufacture standing by incurring costs in anticipation of non-imminent harm.” Id. at 1155.
Without standing there is no jurisdiction. Without jurisdiction we cannot act. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94–95 (1998). Therefore, I agree with my colleagues that the issuance of the preliminary injunction was an ultra vires act by the district court and must be vacated. However, I believe we can do no more. I would remand the case for dismissal, not further proceedings.

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KLAYMAN et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 13-851 (RJL)

)

OBAMA et al.,

) )

FILED

Defendants.

)

NOV 09 2015

~

MEMORANDUM OPINION

!1----, November

2015 [Dkt. #149]

Clerk, U.S. District & Bankruptcy Courts for the District of Columbia

Our Circuit Court has remanded this case for me to determine whether limited

discovery is appropriate to satisfy the standing requirements set forth by the Supreme

Court in an earlier national security surveillance case: Clapper v. Amnesty International

USA, 133 S. Ct. 1138 (2013). Although familiarity with the record and my prior opinion

on December 16, 2013 1 is likely, I will briefly recount the history ofthis matter.

On November 18, 2013, I held a hearing on a motion filed by plaintiffs Larry

Klayman, Charles Strange, and Mary Ann Strange to preliminarily enjoin the National

Security Agency ("NSA") from collecting and querying their telephony metadata

pursuant to the NSA's classified bulk telephony metadata collection program (the "Bulk

Telephony Metadata Program" or the "Program"), under which the NSA indiscriminately

1 Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013), vacated and remanded, 800 F.3d 559 (D.C. Cir. 2015).

1

collects the telephone call records of millions of Americans. Four weeks later, on December 16, 2013, I issued a lengthy opinion ("my December 2013 Opinion") granting the motion as to plaintiffs Larry Klayman and Charles Strange after finding that they had demonstrated a substantial likelihood of success on their Fourth Amendment claim that the collection and querying of their records constituted an unconstitutional search. However, because of the novelty of the legal issues presented and the monumental national security interests at stake, I stayed the injunction pending the appellate review that would undoubtedly follow. Indeed, I assumed that the appeal would proceed expeditiously, especially considering that the USA PATRIOT Act, the statute pursuant to which the NSA was acting, was due to expire on June 1, 2015-a mere eighteen months later. For reasons unknown to me, it did not. Instead, our Circuit Court heard argument on November 4, 2014 and did not issue its decision until August 28, 2015-nearly three months after the USA PATRIOT Act had lapsed and had been replaced by the USA FREEDOM Act, which was enacted on June 2, 2015.
As it pertains to this Opinion, the USA FREEDOM Act specifically prohibits the bulk collection of telephony metadata, but not until November 29, 2015. During the intervening 180-day period, the NSA is continuing to operate the Bulk Telephony Metadata Program while it transitions to a new, more targeted program whereby the NSA, pursuant to authorization by the Foreign Intelligence Surveillance Court ("FISC"), can require telecommunications service providers to run targeted queries against their customers' telephony metadata records and then produce the results of those queries to the NSA. Thus, when our Circuit Court issued its decision on August 28, 2015 vacating
2

my preliminary injunction for a lack of standing and remanding the case to this Court for
further proceedings consistent therewith, nearly half of the 180-day transition period had
already lapsed.
As a consequence, I immediately scheduled a status conference for the following
week to discuss with the parties how to proceed, if at all, prior to the mandate issuing
from the Court of Appeals.2 On August 31, 2015, the Government moved to continue the
status conference. I denied that motion. At the status conference on September 2, 2015,
Mr. Klayman indicated, among other things, that he intended to seek expedited issuance
of the mandate from the Court of Appeals and to amend his complaint by joining new
parties who are customers ofVerizon Business Network Services ("VBNS") and who
therefore, consistent with the Court of Appeals decision, likely had standing to challenge
the Program. As expected, on September 8, 2015, plaintiffs sought leave to file a Fourth
Amended Complaint that adds plaintiffs J.J. Little and his law firm, J.J. Little &
Associates, P.C. ("Little plaintiffs"), both ofwhich are, and at "all material times" were,
2 Once a case is appealed, a district court lacks jurisdiction over "those aspects of the case involved in the appeal" until the court of appeals issues its mandate. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) ("The filing of a notice of appeal is an event of jurisdictional significance-it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal"); see also United States v. Defries, 129 F.3d 1293, 1302 (D.C. Cir. 1997) ("The district court does not regainjurisdiction over those issues [that have been appealed] until the court of appeals issues its mandate."). Under the Federal Rules of Appellate Procedure, the mandate will not issue until "7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en bane, or motion for stay of mandate, whichever is later." Fed. R. App. P. 41(b). However, the Court of Appeals has "discretion to direct immediate issuance of its mandate in an appropriate case" and parties have "the right ... at any time to move for expedited issuance of the mandate for good cause shown." D.C. Cir. R. 41(a)(l).
3

VBNS subscribers. Fourth Am. Compl. ,-r 18 [Dkt. #145-1]. At a September 16, 2015 hearing on this motion, I granted plaintiffs' motion to amend the complaint-which was uncontested-and set a briefing schedule for a renewed motion for preliminary injunction. On September 21, 2015, plaintiffs filed a Renewed Motion for Preliminary Injunction [Dkt. # 149], seeking to enjoin as unconstitutional the Bulk Telephony Metadata Program, which is still in operation until November 29, 2015. On October 6, 2015, the Court of Appeals issued its mandate. I heard oral argument on plaintiffs' renewed motion for preliminary injunction two days later.
After careful consideration of the parties' pleadings, the representations made at the October 8, 2015 motion hearing, and the applicable law, I have concluded that limited discovery is not necessary since several of the plaintiffs now are likely to have standing to challenge the constitutionality of the Bulk Metadata Collection Program, and those that do have standing are entitled to preliminary injunctive relief. Accordingly, the Court will GRANT, in part, plaintiffs' Renewed Motion for Preliminary Injunction as it pertains to plaintiffs J.J. Little and J.J. Little & Associates and ENJOIN the future collection and querying of their telephone record metadata.
BACKGROUND
A brief overview ofthe statutory framework and procedural posture, focusing on developments since my last Opinion in this case, may be a helpful place to start.
4

A. Statutory Framework 1. The Section 215 Bulk Telephony Metadata Program Beginning in 1998, the Foreign Intelligence Surveillance Act ("FISA") permitted
the FBI to merely apply for an ex parte order authorizing specified entities, such as common carriers, to release to the FBI copies of "business records" upon a showing of "specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power." Intelligence Authorization Act for Fiscal Year 1999, Pub. L. 105-272, § 602, 112 Stat. 2396, 2410 (1998). Following the September 11, 2001 terrorist attacks, however, Congress expanded this "business records" provision under Section 215 of the USA PATRIOT Act, to authorize the FBI to apply "for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." USA PATRIOT Act of2001, Pub. L. No. 107-56, § 501, 115 Stat. 272, 287 (2001) (codified as amended at 50 U.S.C. § 1861(a)(l)). Thereafter, in March 2006, Congress strengthened the protections in Section 215, amending the statute to provide that the FBI's application must include "a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation ... to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." USA PATRIOT
5

Improvement and Reauthorization Act of2005, Pub. L. No. 109-177, § 106(b), 120 Stat. 192, 196 (2006) (codified as amended at 50 U.S.C. § 1861(b)(2)(A)).
Although the daily bulk collection, storage, and analysis of telephony metadata is not expressly authorized by the terms of Section 215, beginning in May 2006, the Government, advocating a very aggressive reading of Section 215, sought and received FISC authorization to operate the Bulk Telephony Metadata Program, which, of course, consists of these very practices. See Decl. of Acting Assistant Dir. Robert J. Holley, FBI ~ 6 [Dkt. #25-5] ("Holley Decl."); Decl. of Teresa H. Shea, Signals Intelligence Dir., NSA ~ 13 [Dkt. # 25-4] ("Shea Decl."); see also Decl. of Major General Gregg C. Potter, Signals Intelligence Deputy Dir., NSA ~ 2 [Dkt. #150-4] ("Potter Decl."). The FISC has repeatedly endorsed this view ever since. Shea Decl. ~~ 13-14.3 As such, for more than seven years, the Government has obtained ex parte orders from the FISC directing telecommunications service providers to produce, on a daily basis, the telephony metadata for each of their subscriber's calls-this includes the dialing and receiving numbers and the date, time, and duration of the calls. It does not, however, include the substantive content of the call. Shea Decl. ~~ 7, 13-15, 18; see Primary Order, In re Application ofthe [FBI] for an Order Requiring the Prod. ofTangible Things From [Redacted}, No. BR 13-158 at 3 n.1 (FISC Oct. 11, 2013) (attached as Ex. B to Gilligan
3 Notably, the Second Circuit recently disagreed, holding that, although Section 215 of the USA PATRIOT Act "sweeps broadly," it did not authorize the indiscriminate, daily bulk collection of metadata. ACLU v. Clapper, 785 F.3d 787, 821 (2d Cir. 2015) ("For all of the above reasons, we hold that the text of § 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program. We do so comfortably in the full understanding that if Congress chooses to authorize such a far-reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously.").
6

Decl.) [Dkt. #25-3] ("Oct. 11, 2013 Primary Order"). Once this data is collected from various telecommunications companies, it is consolidated and retained in a single Government database for five years. See Shea Decl. ,-),-) 23, 30; see Oct. 11, 2013 Primary Order at 14 ,-) E. In this database, the NSA conducts computerized searches that are designed to discern whether certain terrorist organizations are communicating with persons located in the United States. Holley Decl. ,-) 5; Shea Decl. ,-),-) 8-10, 44-63; see Am. Mem. Op., In re Application ofthe [FBI] for an Order Requiring the Prod. of Tangible Things from [REDACTED], No. BR 13-109 at 18-22 (FISC Aug. 29, 2013) (attached as Ex. A to Gilligan Decl.) [Dkt. #25-2]. Despite the Program's broad reach, since a series of leaks exposed the existence of this Program in 2013, the Government has maintained that it "has never captured information on all (or virtually all) calls made and/or received in the U.S." Gov't's Opp'n 5.
Shortly after my December 2013 Opinion, however, President Obama issued an order requiring several important changes to the manner in which these searches are authorized and conducted. See President Barack Obama, Remarks by the President on Review of Signals Intelligence (Jan. 17, 2014), https://www.whitehouse.gov/the-pressoffice/2014/01117/remarks-president-review-signals-intelligence; Potter Decl. ,-),-)5-7. As initially authorized by the FISC, NSA intelligence analysists could conduct searches in the database without prior judicial authorization.4 See Shea Decl. ,-) 19. This is no longer
4 Searches in the database are conducted using "identifiers" such as suspected terrorist telephone numbers-so-called "seeds"- to "chain" or elucidate terrorist communications within the United States. Prior to January 2014, an "identifier" had to be approved by one of twenty-two designated officials in the NSA's Homeland Security Analysis Center or other parts of the
7

the case. Rather, except in emergency circumstances, NSA analysts are now required to seek approval from the FISC prior to conducting database queries. Potter Decl. ~ 7. The FISC may only authorize a search ifthere is a "reasonable, articulable suspicion" ("RAS") that the selection term to be queried (i.e., the "identifier" or "seed") is associated with one or more of the specified foreign terrorist organizations approved for targeting by the FISC. !d. Moreover, at the time of my previous Opinion, query results included communication records within "three hops" of the seed identifier. See Shea Decl. ~ 22. Since President Obama's order in January 2014, however, query results have been limited to records of communications within two "hops" from the seed, not three. Pottter Decl. ~ 7. Stated differently, the query results include identifiers and the associated metadata having direct contact with the seed (the first "hop") and identifiers and associated metadata having a direct contact with first "hop" identifiers (the second "hop"). It remains the case that once a query is conducted and it returns a universe of responsive records, NSA analysts may then perform new searches and otherwise perform intelligence analysis within that universe of data without using RAS-approved search terms. See Shea Decl. ~ 26.
2. The USA FREEDOM Act Reacting to significant public outcry regarding the existence of the Bulk Telephony Metadata Program, President Obama called upon Congress to replace the
NSA's Signals Intelligence Directorate. Shea Decl. ~~ 19, 31. Such approval could be given only upon a determination by one of those designated officials that there exist facts giving rise to a "reasonable, articulable suspicion" ("RAS") that the selection term to be queried is associated with one or more of the specified foreign terrorist organizations approved for targeting by the FISC. !d. ~~ 20, 31; Holley Decl. ~~ 15-16.
8

Program with one that would "give the public greater confidence that their privacy is appropriately protected," while maintaining the intelligence tools needed "to keep us safe." President Barack Obama, Statement by the President on the Section 215 Bulk Metadata Program (Mar. 27, 2014), http://www.whitehouse.gov/the-pressoffice/20 14/03/27/statement-president-section-215-bulk-metadata-program. In response to this directive, Congress ultimately enacted the USA FREEDOM Act of2015, Pub. L. No. 114-23, 129 Stat. 268 (2015) ("USA FREEDOM Act"), on June 2, 2015. Relevant to this Opinion, the USA FREEDOM Act expressly prohibits the Government from obtaining telephony metadata in bulk, but not until November 29, 2015. USA FREEDOM Act§§ 103, 109; see Potter Decl. ~ 11. It seems that the NSA requested this 180-day delay to allow time to transition from the Bulk Telephony Metadata Program to a new replacement program Congress conceived-a model whereby targeted queries will be carried out against metadata held by telecommunications service providers and the resulting data subsequently produced to the Government. See id. § 101. As the Government has explained, this 180-day transition period will avoid a so-called "intelligence gap" that would follow if the current Program terminated before the new targeted metadata querying program is fully operational. Gov't's Opp'n 34; see 161 Cong. Rec. S3275 (daily ed. May 22, 2015) (statement of Sen. Leahy) (having printed in the record a letter from the NSA which stated: "NSA assesses that the transition of the program to a query at the provider model is achievable within 180 days, with provider cooperation.... [W]e will work with the companies that are expected to be subject to Orders under the law by providing them the technical details, guidance, and
9

compensation to create a fully operational query at the provider model."). To date,
however, the Government has failed to identifY any concrete consequences that would
likely result from this so-called "intelligence gap." And while Congress refrained for
obvious political reasons from expressly authorizing a six-month extension of the Bulk
Telephony Metadata Program, 5 the Government conveniently went immediately
thereafter to the FISC to seek judicial authorization to continue the Program during the
transition period, consistent with its prior authorization under the USA PATRIOT Act.
See Mem. ofLaw 5, In reApplication ofthe FBIfor an Order Requiring the Prod. of
Tangible Things, No. BR 15-75 (FISC June 2, 2015). Not surprisingly, the FISC agreed.
See In reApplication ofthe FBIfor an Order Requiring the Prod. of Tangible Things,
No. BR 15-75 (FISC June 29, 2015). As such, during the current 180-day transition
period, the Bulk Telephony Metadata Program has continued by judicial, not legislative,
B. Procedural Posture
I first had occasion to address plaintiffs' constitutional challenges to the Program
in December 2013, when I enjoined the Government from further collecting plaintiffs'
5 The enactment of the USA FREEDOM Act has been described as "signal[ing] a cultural turning point for the nation, almost 14 years after the Sept. 11 attacks heralded the construction of a powerful national security apparatus," which began with significant public backlash to the June 2013 revelation that the NSA was operating a classified bulk metadata collection program. Jennifer Steinhauer & Jonathan Weisman, US Surveillance in Place Since 9/11 is Sharply
Limited, N.Y. Times, Jun. 3, 2015, at AI.
6 It is possible that the metadata collected and stored prior to November 29, 2015 will be retained for some period of time after that date to (1) meet any applicable preservation obligations in pending litigation and (2) conduct technical analysis for a three-month period to ensure that the production of call-detail records under the targeted collection program yields similar results to queries of metadata under the retiring Program. Potter DecI. ~ 15. In any event, the Government represents that analytic access to the data will cease on November 29,2015. !d.
10

call records under the Program. Klayman v. Obama, 957 F. Supp. 2d 1, 44-45 (D.D.C. 2013) (Leon, J.). I concluded, in so ruling, that plaintiffs Klayman and Charles Strange likely had standing to challenge both the bulk collection of metadata under the Program and the ensuing analysis of that data through the NSA's electronic querying process.7 !d. at 26-29. As to the merits of plaintiffs' claims, I found it significantly likely that plaintiffs would be able to prove that the Program violated their reasonable expectation of privacy and therefore was a Fourth Amendment search. !d. at 30-37. I held, moreover, that the Program likely failed to meet the Fourth Amendment's reasonableness requirement because the substantial intrusion occasioned by the Program far outweighed any contribution to national security. !d. at 37-42. Because the loss of constitutional freedoms is an "irreparable injury" of the highest order, and relief to two of the named plaintiffs would not undermine national security interests, I found that a preliminary injunction was not merely warranted-it was required. !d. at 42-43. Cognizant, however, of the "significant national security interests at stake," and optimistic that our Circuit Court would expeditiously address plaintiffs' claims, I voluntarily stayed my order pending appeal. See id. at 43-44.
As stated previously, our Circuit Court did not do so. Moreover, when it finally issued its decision on August 28, 2015, it did so with considerable brevity. In three separate opinions, the Circuit Court vacated my preliminary injunction on the ground that
7 Because plaintiffs pled no facts showing that plaintiff Mary Ann Strange was a Verizon Wireless subscriber, let alone a subscriber of any other phone services, I found that she lacked standing to pursue her claims and therefore restricted the remainder of my analysis to the claims advanced by plaintiffs Larry Klayman and Charles Strange. See Klayman, 957 F Supp. 2d at 8 & n.5, 43 n.69.
11

plaintiffs, as subscribers ofVerizon Wireless rather than as subscribers ofVBNS-the
sole provider the Government has acknowledged has participated in the Program-had
not shown a substantial likelihood of standing to pursue their claims. Obama v.
Klayman, 800 F.3d 559 (D.C. Cir. 2015) (per curiam).8 Left undecided-indeed wholly
untouched-was the question of whether a program that indiscriminately collects
citizens' telephone metadata constitutes an unconstitutional search under the Fourth
Amendment.
Not surprisingly, plaintiffs moved for, and quickly obtained, leave to file a Fourth
Amended Complaint. See Sept. 16, 2015 Min. Entry. This latest iteration ofthe
Complaint alters plaintiffs' contentions in two material respects. First, it adds plaintiffs
J.J. Little and his law firm, J.J. Little & Associates, P.C., both of which are, and at "all
material times" were, VBNS subscribers. Fourth Am. Compl. ,-r 18.9 Second, it sets forth
8 Judge Brown concluded that plaintiffs had demonstrated a possibility that their call records are, or were, collected, but because they had not shown a substantia/likelihood that this was the case, they fell "short of meeting the higher burden of proof required for a preliminary injunction." !d. at 562-64. Judge Williams opined that because "[p]laintiffs are subscribers of Verizon Wireless, not ofVerizon Business Network Services, Inc.-the sole provider that the government has acknowledged targeting for bulk collection," plaintiffs "lack direct evidence that records involving their calls have actually been collected." !d. at 565 (Williams, J.). Given that the Government has neither confirmed nor denied Verizon Wireless's participation in the Program, Judge Williams found plaintiffs' inference that their data was collected too speculative to "demonstrate a 'substantial likelihood' of injury." !d. at 566. Judge Sentelle "agree[d) with virtually everything in Judge Williams' opinion," save for his conclusion that the case should be remanded instead of dismissed. !d. at 569-70. Like Judge Williams, Judge Sentelle opined that plaintiffs "never in any fashion demonstrate[d) that the [G]overnment is or has been collecting [call-detail] records from their [carrier]" and that the Supreme Court's rejection of similar inferential leaps in Clapper v. Amnesty International, USA, 133 S. Ct. 1138 (2013), counsels against finding standing here. !d. at 569. 9 Plaintiffs furnished additional support for this claim in the Supplemental Declaration of J.J. Little, in which he avers that "I and my law firm J.J. Little Associates, P.C. have been customers (subscribers) ofVerizon Business Network Services and also Verizon Wireless since October
12

additional facts intended to bolster plaintiffs' allegation that Verizon Wireless participated in the Program. !d. ~~ 47-48.
On September 21, 2015, plaintiffs filed a renewed motion for a preliminary injunction, seeking relief, once again, from the "warrantless surveillance" of their telephone calls. See Plaintiffs' Renewed Mot. for Prelim. Inj. & Req. for Oral Arg. Thereon [Dkt. #149]. Government defendants, of course, opposed, see Government Defendants' Opposition to Plaintiffs' Renewed Motion for a Preliminary Injunction [Dkt. #150] ("Gov't's Opp'n"), and plaintiffs quickly lodged their reply, see Plaintiffs' Reply in Support of their Renewed Motion for Preliminary Injunction [Dkt. #152]. On October 6, 2015, our Circuit Court granted plaintiffs' unopposed request for expedited issuance of the mandate, Order, Obama v. Klayman, No. 14-5004 (D.C. Cir. Oct. 6, 2015), thereby reinstating this Court's jurisdiction to decide plaintiffs' renewed motion, see Mandate [Dkt. # 154]. I took plaintiffs' motion under advisement at the conclusion of oral argument on October 8, 2015.
ANALYSIS I will confine my analysis to the merits of plaintiffs' request for a preliminary injunction and will not address the jurisdictional predicate for my actions, which I discussed at length in my December 20 13 Opinion. 10 When ruling on a motion for
2011, and have been so continuously during the period from October 20 II until the present." Suppl. Decl. of J.J. Little [Dkt. #I52-1]. 10 Specifically, I discussed this Court's jurisdictional authority to review plaintiffs' constitutional claims. See Klayman, 957 F. Supp. 2d at 24-25. In sum, I found that Congress had not stated with the requisite clarity any intent to preclude judicial review of constitutional claims related to FISC orders by any non-FISC courts. See Webster v. Doe, 486 U.S. 592, 603 (1988) ("[W]here
13

preliminary injunction, a court must consider "whether (1) the plaintiff has a substantial
likelihood of success on the merits; (2) the plaintiff would suffer irreparable injury were
an injunction not granted; (3) an injunction would substantially injure other interested
parties; and (4) the grant of an injunction would further the public interest." Sottera, Inc.
v. Food & Drug Admin., 627 F.3d 891, 893 (D.C. Cir. 2010) (internal quotation marks
omitted). 11 I will address each of these factors in turn.
A. Plaintiffs Have Shown a Substantial Likelihood of Success on the Merits.
My analysis of plaintiffs' likelihood of success on the merits of their constitutional
claims focuses exclusively on their Fourth Amendment challenges, which I find most
likely to succeed. 12 I begin, however, as I did previously, with plaintiffs' standing to
Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear."); see also Elgin v. Dep't ofthe Treasury, 132 S. Ct. 2126,2132 (2012) ("[A] necessary predicate to the application of Webster's heightened standard (is] a statute that purports to deny any judicial forum for a colorable constitutional claim." (internal quotation marks omitted)); McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders ofthe Judicial Conference ofthe US., 264 F.3d 52, 59 (D.C. Cir. 2001) (finding "preclusion of review for both as applied and facial constitutional challenges only if the evidence of congressional intent to preclude is 'clear and convincing"'). 11 Our Circuit has traditionally applied a "sliding scale" approach to these four factors. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009). In other words, "a strong showing on one factor could make up for a weaker showing on another." Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). Following the Supreme Court's decision in Winter v. NRDC, Inc., 555 U.S. 7 (2008), however, our Circuit suggested, without deciding, that "Winter could be read to create a more demanding burden." Davis, 571 F.3d at 1292. Thus, while it is unclear whether the "sliding scale" remains controlling in light of Winter, the Court need not decide that issue today because I conclude that plaintiffs have carried their burden of persuasion as to all four factors. 12 The Second Circuit recently declined to issue a preliminary injunction in a similar case, holding that the USA FREEDOM Act authorized the 180-day continuation ofthe Bulk Telephony Metadata Program and declining to reach the "momentous constitutional issues" raised by the limited continuation of the Program. ACLU v. Clapper, No. 14-42-cv (2d Cir. Oct. 29, 2015). In refusing to consider the constitutional questions raised, the Second Circuit noted that it "ought not meddle with Congress's considered decision" to continue the Program for a
14

challenge the Bulk Telephony Metadata Program. See Jack's Canoes & Kayaks, LLC v.
Nat'! Park Serv., 933 F. Supp. 2d 58, 76 (D.D.C. 2013) ("The first component of the
likelihood of success on the merits prong usually examines whether the plaintiffs have
standing in a given case." (internal quotation marks omitted)).
1. Plaintiffs are Substantially Likely to Have Standing to Challenge the Bulk Telephony Metadata Program.
Plaintiffs Larry Klayman, Charles Strange, Mary Ann Strange, J.J. Little, and J.J.
Little & Associates, P.C. challenge the past and future collection of their telephone
metadata, as well as the analysis of that data through the NSA's electronic querying
process. After careful consideration of these challenges, I conclude that while plaintiffs
J.J. Little and J.J. Little & Associates, P.C. have standing to proceed, plaintiffs Larry
Klayman, Charles Strange, and Mary Ann Strange do not.
No principle is more fundamental to the balance of federal power than the
"constitutional limitation of federal-court jurisdiction to actual cases or controversies."
DaimlerChrysler Corp v. Cuno, 547 U.S. 332, 341 (2006) (internal quotation marks
omitted). Inherent in this principle is the requirement that each plaintiff demonstrate adequate standing to press their claims in federal court. Raines v. Byrd, 521 U.S. 811,
818 (1997). "To establish Article III standing, an injury must be 'concrete,
limited transition period and that doing so would not be a "prudent use ofjudicial authority" given that rendering a decision on such difficult constitutional questions would almost certainly take longer than the time remaining for the Program's operation. ld at 23. Fortunately for this Court, my analysis of these "momentous constitutional issues" began nearly two years ago, and so I do not suffer the same time constraints. Moreover, as I explain below, this Court cannot, and will not, sit idle in the face of likely constitutional violations for fear that it might be viewed as meddling with the decision of a legislative branch that lacked the political will, or votes, to expressly and unambiguously authorize the Program for another six months.
15

particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling."' Clapper v. Amnesty lnt'l USA ("Clapper"), 133 S. Ct. 1138, 1147 (2013) (quoting Monsanto Co. v. Geerston Seed Farms, 561 U.S. 139, 149 (2010)); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 & n.l (1992) ("By particularized, we mean that the injury must affect the plaintiff in a personal and individual way."). When the challenged harm is prospective, courts face the additional hurdle of assuring themselves that its likelihood is not too far flung, lest imminence, "a somewhat elastic concept ... be stretched beyond its purpose" to create a controversy where none exists. Lujan, 504 U.S. at 564 n.2. Consequently, the "threatened injury must be certainly impending" to prevent litigation of illusory claims. See Clapper, 133 S. Ct. at 1147 (internal quotation marks omitted).
Any discussion of standing to challenge a classified Government surveillance program must begin with the seminal case on this issue: Clapper v. Amnesty International. Clapper concerned a challenge by Amnesty International to Section 702 ofthe Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1881a, which authorizes the Government to surveil non-United States persons reasonably believed to be located outside the United States. 133 S. Ct. at 1142. There, plaintiffs, "United States persons whose work ... requires them to engage in sensitive international communications with individuals who they believe are likely targets of surveillance under§ 1881a," sought declaratory and injunctive relief from surveillance under the statute. !d. The issue before the Supreme Court was whether plaintiffs had standing to seek prospective relief. They did not. According to the Supreme Court, plaintiffs' claims
16

failed because their allegations rested on a series of contingencies that may-or may
not-come to pass. Specifically, success required: that plaintiffs' foreign contacts would
be targeted for surveillance under the challenged statute; that the FISC would approve the
surveillance; that the government would actually intercept communications from
plaintiffs' foreign contacts; and that plaintiffs' communications would be among those
captured. !d. at 1148. Without reaching the merits of plaintiffs' claims, the Supreme
Court held that plaintiffs had not established standing because their "theory offuture
injury [was] too speculative to satisfy the well-established requirement that threatened
injury must be 'certainly impending."' !d. at 1143 (quoting Whitmore v. Arkansas, 495
U.S. 149, 158 (1990)). Whether Clapper's use of the term "certainly impending"
imposes a higher threshold for standing, or merely adds gloss to the longstanding requirement of "concreteness," is unclear. 13 What Clapper does instruct, however, is that
standing to challenge a classified Government surveillance program demands more than
speculation that the challenged surveillance has, or will, transpire.
13 As the Clapper majority pointed out in a footnote, "[o]ur cases do not uniformly require plaintiffs to demonstrate that it is literally certain that the harms they identify will come about. In some instances, we have found standing based on a 'substantial risk' that the harm will occur." Clapper, 133 S. Ct. at 1150 n.5. The Court declined, however, to comment further because it found plaintiffs' allegations too "attenuated" to demonstrate harm. Indeed, Justice Breyer, in his dissent, expressed doubt as to whether there is a meaningful difference between a "substantial risk" of future harm and a risk of"clearly impending harm." Id at 1160-61 (Breyer, J., dissenting). In his view, "the case law uses the word 'certainly' as if it emphasizes, rather than literally defines, the immediately following term 'impending.'" Id at 1161 (Breyer, J., dissenting). That is to say, whether "substantial risk" and "clearly impending" impose substantively different standing requirements, or lexical variations of the same overarching standard, is a question for another day. In any event, I need not reach this issue because I find that the Little plaintiffs have met the threshold for "certainly impending" injury.
17

On appeal here, our Circuit Court found that plaintiffs Klayman and Charles Strange's alleged injuries were too attenuated to constitute "concrete and particularized injury" as required by Clapper. See Klayman, 800 F.3d at 562 (Brown, J.) (internal quotation marks omitted). According to all three of our Circuit Judges, because plaintiffs had adduced no proof that "their own metadata was collected by the government" under the Program, they had not demonstrated a substantial likelihood of standing to pursue their claims. !d. at 562-63 (Brown, J.); see also id. at 565 (Williams, J.) ("[P]laintiffs lack direct evidence that records involving their calls have actually been collected."); id. at 569 (Sentelle, J., dissenting in part) ("[P]laintiffs never in any fashion demonstrate that the government is or has been collecting such records from their telecommunications provider."). Fortunately for plaintiffs, our Circuit's holding did not sound the death knell for their cause.
On September 16, 2015, plaintiffs Larry Klayman, Charles Strange, and Mary Ann Strange filed an uncontested Fourth Amended Complaint, joining as plaintiffs to the action VBNS subscribers J.J. Little and J.J. Little & Associates. See Fourth Am. Compl. Separately, and in an attempt to bolster their standing as Verizon Wireless subscribers, plaintiffs appended to their Complaint a document they claim shows that Verizon Wireless was "at all material times" participating in the Program. See Fourth Am. Compl. ~ 47. I will begin by addressing plaintiffs' renewed arguments that Verizon Wireless was, and continues to be, a participant in the Program before turning to the merits of plaintiffs' alternative argument that the Little plaintiffs have standing to proceed.
18

Unfortunately for plaintiffs Klayman and Strange, I must conclude, in light of our Circuit's ruling in this case, that they have not adequately substantiated their injuries on remand. Plaintiffs appended to the Complaint a de-classified letter from the Department of Justice to the then-Presiding Judge of the FISC, Judge John D. Bates, regarding a "Compliance Incident Involving In reApplication of the [FBI] for an Order Requiring the Production of Tangible Things from ... Cellco Partnership d/b/a Verizon Wireless." See Fourth Am. Compl. Ex. 1 [Dkt. #145-1]. Plaintiffs apparently interpret this document as confirmation that Verizon Wireless participated in the Program. Fourth Am. Compl. ~~ 47-48. The Government contends that it does no such thing. Gov't's Opp'n 17-18. While plaintiffs' suspicion is plausible, if not logical, 14 based on our Circuit Court's reasoning, I must agree with the Government that this document does not prove Verizon Wireless was ordered to tum over the metadata records of its customers. In fact, a Verizon spokesman suggested that the use of"Verizon Wireless" may simply be a vestige of"the government's practice to use broad language covering all ofVerizon's entities in headings of such court orders ... regardless of whether any specific part was required to provide information under that order." See Charlie Savage, N.S.A. Used Phone Records Program to Seek Iran Operatives, N.Y. Times, Aug. 12, 2015 (attached as Ex. 2 to Fourth Am. Compl.). As such, plaintiffs Larry Klayman, Charles Strange, and Mary Ann Strange have not shown a substantial likelihood that their telephony metadata
14 Indeed, I went to great lengths in my December 2013 Opinion to debunk the notion that the NSA had omitted from the Program the single largest wireless carrier in the United States and in so doing had collected a universe of metadata so woefully incomplete as to undermine the Program's putative purpose. See Klayman, 957 F. Supp. 2d at 27. In my judgment, common sense still dictates that very conclusion regarding Verizon Wireless' participation in the Program.
19

was collected pursuant to the Program and therefore are not entitled to a preliminary injunction.
Quite the opposite, however, is true for the Little plaintiffs. The "irreducible constitutional minimum of standing" requires that plaintiffs "must have suffered an 'injury in fact'-an invasion of a legally protected interest which is ... concrete and particularized." Lujan, 504 U.S. at 560. According to our Circuit Court, this demands evidence that "the [P]rogram targets plaintiffs." See Klayman, 800 F.3d at 567 (Williams, J.); see also id. at 563 (Brown, J.) (declining to find standing because "the facts marshaled by plaintiffs do not fully establish that their own metadata was ever collected"). The Little plaintiffs emphatically meet this hurdle. They aver in their Fourth Amended Complaint that "Little, for himself and by and through his law firm, J.J. Little & Associates, has been and continues to be a subscriber ofVerizon Business Network Services for his firm J.J. Little & Associates, P.C." Fourth Am. Compl. ~ 18. Their subscription has, moreover, been "continuous[]" since October 2011. Suppl. Decl. of J.J. Little~ 2 [Dkt. #152-1]. 15 Because the Government has acknowledged that VBNS subscribers' call records were collected during a three-month window in which the Little plaintiffs were themselves VBNS subscribers, barring some unimaginable circumstances, it is overwhelmingly likely that their telephone metadata was indeed warehoused by the NSA. The Little plaintiffs, then, have pled facts wholly unlike those in Clapper. There is
15 Indeed, as the Government defendants note in their brief, a district court found standing in a nearly identical set of circumstances in which the plaintiff "submitted specific testimonial evidence that it had received telephone service from VBNS 'since 2007' and continued to do so at the time it moved for injunctive relief. Gov't's Opp'n 19 n.9 (citing ACLU v. Clapper, No. 1:13-cv-3994 (S.D.N.Y.)).
20

no need to speculate that their metadata was targeted for collection, that the challenged Program was used to effectuate the metadata collection, that the FISC approved these actions, or that VBNS subscriber call records were indeed collected. Simply stated, Clapper's '"speculative chain ofpossibilities' is, in this context, a reality." ACLUv. Clapper, 785 F.3d 787, 802 (2d Cir. 2015).
Given the strong presumption that the NSA collected, and warehoused, the Little plaintiffs' data within the past five years, these plaintiffs unquestionably have standing to enjoin any future queries of that metadata. The Government protests that there is "no evidence that the NSA has accessed records of [plaintiffs'] calls as a result of queries made under the 'reasonable, articulable suspicion' standard or otherwise." Gov't's Opp'n 20. To them, it is pure "conjecture" that "records of Plaintiffs' calls have been" or "will be" reviewed "during the remaining two months of the Section 215 program." Gov't's Opp'n 20. I wholeheartedly disagree. As I explained in my December 2013 Opinion, every single time the NSA runs a query to, for example, "detect foreign identifiers associated with a foreign terrorist organization calling into the U.S.," it must "analyze metadata for every phone number in the database by comparing the foreign target number against all of the stored call records to determine which U.S. phones, if any, have interacted with the target number." Klayman, 957 F. Supp. 2d at 28 (internal quotation marks omitted). The Second Circuit, not surprisingly, completely agrees. There, a court tasked with a substantially similar inquiry opined that the NSA "necessarily searches [plaintiffs'] records electronically, even if such a search does not
21

return [their] records for close review by a human agent." See ACLU, 785 F.3d at 802. 16
As the Second Circuit also points out, computerized searches "might lessen the
intrusion," but they do not obviate it altogether. !d. A search remains a search regardless
of how it is effectuated. If the Program is unlawful-and for the reasons discussed herein
I believe it is substantially likely that it is-plaintiffs have suffered a concrete harm
traceable to the challenged Program and redressable by a favorable ruling. For that
reason, I find that the Little plaintiffs have "standing to object to the collection and
review of their data." 17 See id.
Whether the Little plaintiffs have standing to challenge the future collection of
their telephone metadata requires a separate analysis. The Government contends that the
Little plaintiffs lack such standing because "there is no evidence before the Court that
VBNS is currently a participating provider in the [Program]." Gov't's Opp'n 19. To
them, "[a]n assumption that the NSA 'must be' collecting bulk telephony metadata from
VBNS today because it did so for a three-month period in 2013 is precisely the sort of
inference that the D.C. Circuit held in Klayman falls short of the certainty required under
16 The analogy I used in my December 2013 Opinion remains instructive. Suppose one enters a hypothetical library to find each and every book citing Battle Cry ofFreedom as a source. Suppose further that this goal has judicial pre-approval. Battle Cry ofFreedom "might be referenced in a thousand books. It might be in just ten. It could be in zero. The only way to know is to check every book. At the end of a very long month, you are left with the 'hop one' results (those books that cite Battle Cry ofFreedom), but to get there, you had to open every book in the library." Klayman, 957 F. Supp. 2d at 28 n.38. 17 Brief mention must be made of the Government's argument that even if their data was collected, warehouse, and queried, the Little plaintiffs have failed to show a redressable injury. Specifically, the Government claims that plaintiffs lack standing because they have no "legally protected interest" in the collection and review of their telephone metadata. See Gov't's Opp'n 22. I held in my December 2013 Opinion that plaintiffs were likely to prove that the NSA's retrieval and querying process is indeed a Fourth Amendment search and decline to revisit that decision here. See Klayman, 957 F. Supp. 2d at 37.
22

[Clapper] to establish a plaintiffs standing in a case of this nature." Gov't's Opp'n 19. The Government's argument misconstrues what is required to establish standing in a case such as this. As I indicated supra, Clapper does not render Article III the enemy of every challenge to a classified surveillance program. Standing, in a post-Clapper world, remains an obstacle for the quixotic litigant, but is not a roadblock for the truly aggrieved. Rather, Clapper must be understood as it was unequivocally written: to stymie attenuated claims of harm. In that respect, our Circuit's holding in Klayman clearly abides. See Klayman, 800 F.3d at 566 (Brown, J.) (noting that Amnesty International's challenge in Clapper failed because plaintiffs "had no actual knowledge of the Government's § 1881a targeting practices nor could they even show that the surveillance program they were challenging even existed" (internal quotation marks omitted)); see also id. at 567 (Williams, J.) (likening plaintiffs' "assertion that NSA's collection must be comprehensive in order for the program to be effective" to the Clapper plaintiffs' speculative "assertions regarding the government's motive and capacity to target their communications"). According to our Circuit, a "substantial likelihood" of standing cannot rest on inferences about which providers participated in this particular Program. This proposition, however, does not mean that courts must abandon all common sense in determining the scope of that participation once concretely pled. Indeed, nothing in our Circuit Court's opinion precludes me from inferring, based on the NSA's past collection ofVBNS subscriber data, that it continues to collect bulk telephony metadata from that same provider, pursuant to the same statutory authorization, to combat the same potential threats to our national security.
23

I I
Indeed, common sense leads to that precise conclusion here. To start, I need not speculate that the Government continues to operate this Program. It has acknowledged as much. Potter Decl. ~ 14. Proof that the Government has collected VBNS subscribers' metadata is, moreover, persuasive evidence that the threat of ongoing collection is not "chimerical." See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2345 (2014) (quoting Steffel v. Thompson, 415 U.S. 415, 459 (1973)). While the Government has not admitted that it continues to collect VBNS subscriber call records, its avowed need to combat terrorism makes it overwhelmingly likely that it does. According to Bryan Paarmann, Deputy Assistant Director of the Counterterrorism Division in the National Security Branch of the FBI, "[t]he threat environment confronting the United States has evolved" since this Court last opined. Paarmann Decl. ~ 5 [Dkt. #150-6]. "Over the past two years the United States has confronted, and is still confronting, an increasing threat of attacks by individuals who act in relative isolation or in small groups." !d. This "increasingly diffuse threat environment" demands, under the FBI's logic, increased vigilance. See Paarmann Decl. ~ 9; see also id. ~ 11 ("[T]he current terrorist threat environment underscores the significance of this key ["contact chaining"] capability under the bulk telephony metadata program.").
The Government's position that VBNS may no longer be a participant in the Program is fundamentally at odds with its ever-escalating concerns of terrorist threats. By the Government's own admission, it is marshaling all available investigative tools to combat a threat it believes to be least as menacing as it was in 20 13. See Paarmann DecI. ~ 9. It defies common sense for defendants to argue, as they apparently do, that the
24

Government has chosen to omit from this breathtakingly broad metadata collection Program a provider that the Government surveilled in the past and that, presumably, has the infrastructure to continue assisting in that surveillance. In fact, it would make no sense whatsoever for the Government to use all available tools except VBNS call data to accomplish its putative goals. I am not alone in reaching this conclusion. The Second Circuit itself recently held that VBNS subscribers have standing to bring nearly identical claims because evidence that plaintiffs' "call records are indeed among those collected," made it unnecessary to speculate that the government "may in the future collect[] their call records." ACLU, 785 F.3d at 801. This is an imminent harm that is, once again, traceable to the challenged statute and remediable by a prospective injunction. Therefore, I find that the Little plaintiffs have standing to seek an order enjoining the future collection of their telephone metadata because they have shown a substantial likelihood that the NSA has collected and analyzed their telephone metadata and will continue to do so consistent with FISC opinions and orders. At the present time, no further amount of discovery is necessary to resolve the standing issue. Whether the Government's actions violate plaintiffs' Fourth Amendment rights is, of course, the province of the next section.
2. Plaintiffs are Likely to Succeed on the Merits of Their Fourth Amendment Claim.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. That right "shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the
25

place to be searched, and the persons or things to be seized." Id. A Fourth Amendment "search" occurs when "the government violates a subjective expectation of privacy that society recognizes as reasonable." Kyllo v. United States, 533 U.S. 27, 33 (2001) (citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). In my December 2013 Opinion, I explained at length why both the indiscriminate bulk collection of telephony metadata and the analysis of that data each separately constitute a search within the meaning of the Fourth Amendment. Klayman, 957 F. Supp. 2d at 3037. Neither the recent changes in the operation of the Program, nor the passage of the USA FREEDOM Act, has done anything to alter this analysis. The fact remains that the indiscriminate, daily bulk collection, long-term retention, and analysis of telephony metadata almost certainly violates a person's reasonable expectation of privacy.
Therefore, whether plaintiffs are entitled to preliminary injunctive relief at this stage turns on whether those searches are likely to be unreasonable, in light of intervening changes in the law. See Kyllo, 533 U.S. at 31 (whether a search has occurred is an "antecedent question" to whether a search was reasonable). Notwithstanding the Government's strong protestations, I conclude that plaintiffs will likely succeed in showing that the searches during this 180-day transition period still fail to pass constitutional muster.
a. Plaintiffs Will Likely Prove that the Searches Are Unreasonable. The Fourth Amendment prohibits unreasonable searches. See Samson v. California, 547 U.S. 843, 848 (2006). Whether a search is reasonable depends on the totality of the circumstances. !d. Typically, searches not conducted pursuant to a warrant
26

based on the requisite showing of probable cause are ''per se unreasonable." Nat'! Fed'n
ofFed. Emps.-IAMv. Vi/sack, 681 F.3d 483, 488-89 (D.C. Cir. 2012) (quoting City of
Ontario v. Quon, 560 U.S. 746, 760 (2010)). The Supreme Court, however, has
recognized limited exceptions to this rule, including for situations in which "special
needs, beyond the normal need for law enforcement, make the warrant and probable-
cause requirement impracticable." Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)
(internal quotation marks omitted). Evaluating whether a warrantless, suspicionless
search is reasonable under the "special needs" doctrine requires a court to balance the
privacy interests implicated by the search against the governmental interest furthered by
the intrusion. Nat 'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665-66 (1989). 18
Specifically, I must balance: (1) "the nature of the privacy interest allegedly
compromised" by the search, (2) "the character of the intrusion imposed" by the
18 Several categories of searches have been upheld under the "special needs" doctrine. Schools are permitted under certain circumstances to test students for drugs. See Bd ofEduc. ofIndep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 838 (2002) (upholding urinalysis for all public school students participating in extracurricular activities); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656 (1995) (upholding urinalysis for public school student athletes). The same is true for searches conducted by certain government employers. See Von Raab, 489 U.S. at 679 (upholding drug testing of Customs Service employees who applied for promotion to positions involving interdiction of illegal drugs or which required them to carry a firearm); Willner v. Thornburgh, 928 F.2d 1185, 1193-94 (D.C. Cir. 1991) (upholding urine tests of applicants for positions as attorneys at the Department of Justice). Officers may search probationers and parolees to ensure compliance with the rules of supervision. See Griffin, 483 U.S. at 880. And, in some cases, law enforcement may conduct suspicionless searches to prevent acts of terrorism in transportation centers. See Cassidy v. Chertojf, 471 F.3d 67, 87 (2d Cir. 2006) (upholding suspicionless searches of carry-on baggage and automobile trunks on Lake Champlain ferries); Mac Wade v. Kelly, 460 F.3d 260, 275 (2d Cir. 2006) (upholding searches of bags in New York City subway system). Suspicionless seizures have also been upheld under similar balancing analysis, including highway checkpoints designed to detect illegal entrants into the Unites States, United States v. Martinez-Fuerte, 428 U.S. 543, 567 (1976), and to catch intoxicated motorists, Mich. Dep't ofState Police v. Sitz, 496 U.S. 444,455 (1990).
27

Government, and (3) "the nature and immediacy of the government's concerns and the efficacy ofthe [search] in meeting them." See Bd. ofEduc. oflndep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 830-34 (2002).
In my December 2013 Opinion, I held that the NSA's Bulk Telephony Metadata Program likely violated the Fourth Amendment because "plaintiffs [had] a substantial likelihood of showing that their privacy interests outweigh[ed] the Government's interest in collecting and analyzing bulk telephony metadata." Klayman, 957 F. Supp. 2d at 41. In opposition to plaintiffs' renewed motion for preliminary injunction, the Government argues that several developments since December 20 13 have altered the special needs analysis such that plaintiffs are no longer likely to prevail. Gov't's Opp'n 33. For the following reasons, I do not agree.
i. Nature ofthe Privacy Interest My analysis of the reasonableness of the searches at issue in this case begins with the nature ofthe privacy interest at stake. As I explained at length in my December 2013 Opinion, plaintiffs have a very significant expectation of privacy in an aggregated collection of their telephony metadata. See Klayman, 957 F. Supp. 2d at 32-37. When a person's metadata is aggregated over time, in this case five years, it can be analyzed to reveal "embedded patterns and relationships, including personal details, habits, and behaviors." Decl. ofProf. Edward W. Felten~~ 24, 38-58 [Dkt. #22-1]. Recognizing that certain factors may diminish a person's otherwise robust privacy expectations, see Willner v. Thornburgh, 928 F.2d 1185, 1188 (D.C. Cir. 1991) ("[E]ven a current employee's 'expectation of privacy,' while 'reasonable' enough to make urine testing a
28

Fourth Amendment 'search,' can be so 'diminished' that the search is not 'unreasonable."'), I consider this intrusion in the context of Americans' evolving interactions with mobile technology. Indeed, as of this year, 92 percent of American adults own a cellphone, 67 percent of whom own a so-called "smartphone" that enables them to, among other things, connect to the Internet. Lee Rainie & Kathryn Zickuhr, Americans' Views on Mobile Etiquette, Chapter 1: Always on Connectivity, Pew Research Center (Aug. 26, 2015), http://www.pewintemet.org/2015/08/26/chapter-lalways-on-connectivity/#fn-14328-1. Those who own such phones "often treat them like body appendages,"'as nine-in-ten cellphone owners carry their phones with them "frequently." !d. Smartphones, moreover, are not used merely for their basic communications functions, but rather "to help [owners] navigate numerous important life events," including for the sensitive purposes of online banking and researching health conditions. Aaron Smith, US. Smartphone Use in 2015, Pew Research Center (Apr. 1, 20 15), http://www.pewintemet.org/20 15/04/0 1/us-smartphone-use-in-20 15/. The Government is quite right that these facets of mobile technology are not targeted by metadata collection. Nevertheless, Americans' constant use of cellphones for increasingly diverse and private purposes illustrates the attitude with which people approach this technology as a whole. Surely a person's expectation of privacy is not radically different when using his or her cellphone to make a call versus to check his or her bank account balance.
Furthermore, the attitude with which cellphone users approach their devices presents a dramatically different context than the contexts in which courts have upheld
29

"special needs" searches. Specifically, cellular phone technology does not present the same diminished expectation of privacy that typically characterizes "special needs" incursions. Take, for example, airports. In the context of air travel, courts have recognized that "society has long accepted a heightened level of security and privacy intrusion with regard to air travel." Cassidy v. Chertoff, 471 F.3d 67, 76 (2d Cir. 2006). Notably, Americans know that airports are discrete areas in which certain rights otherwise enjoyed are forfeited. See id. It is their choice to enter that space and, in so doing, to check certain rights at the door. Not so with cellphones. As already described, cellphones have become a constant presence in people's lives. While plaintiffs' privacy interests in their aggregated metadata may be somewhat diminished by the fact that it is held by third-party service providers, this is a necessary reality if one is to use a cellphone at all, and it is, therefore, simply not analogous to the context of voluntarily entering an airport. In this case, plaintiffs have asserted that the NSA's searches were a substantial intrusion on their privacy, and I have no reason to doubt that, nor to find that their privacy expectations should have been diminished given the context. Rather, I conclude that plaintiffs' privacy interests are robust.
ii. Character and Degree of Governmental Intrusion Turning next to the character and degree of the Government's intrusion on plaintiffs' privacy interest, the Government avers that "[a]t this stage, the [P]rogram's potential for intrusion on Plaintiffs' privacy interests is minimal, and finite." Gov't's Opp'n 37. The Government first notes that the Program will no longer continue indefinitely but will end on November 29, 2015; therefore, any infringement is
30

necessarily limited in duration. !d. The Government next emphasizes that the new restrictions on queries-including that FISC authorization is now required before a query is conducted and that query results are now limited to "two hops"-significantly diminish the likelihood that plaintiffs' data will actually be reviewed. !d. Although I agree with the Second Circuit that there is now "a lesser intrusion on [plaintiffs'] privacy than they faced at the time this litigation began," ACLU, 785 F.3d at 826, I simply cannot agree with the Government's characterization of it as "minimal, and finite."
When considering whether a search is minimally or substantially intrusive, courts evaluate a variety of factors, including, inter alia, "the duration of the search or stop, the manner in which government agents determine which individual to search, the notice given to individuals that they are subject to search and the opportunity to avoid the search ... as well as the methods employed in the search." Cassidy, 471 F.3d at 78-79 (citations omitted); see also Willner, 928 F.2d at 1189-90 (discussing as mitigating factors whether the person had "notice of an impending intrusion" and had a "large measure of control over whether he or she will be subject to" the search).
To say the least, the searches in this case lack most of these hallmarks of minimal intrusion. It is not, as an initial matter, a discrete or targeted incursion. To the contrary, it is a sweeping, and truly astounding program that targets millions of Americans arbitrarily and indiscriminately. To be sure, by designing a program that eliminates the need for agents to use discretion, the Government has reduced to zero the likelihood that metadata will be collected in a discriminatory fashion-a characteristic that the Supreme Court has suggested minimizes the privacy intrusion. See, e.g., United States v.
31

Martinez-Fuerte, 428 U.S. 543, 559 (1976) (noting that roving patrols presented "a grave
danger [of] unreviewable discretion," while fixed checkpoints reduce the scope ofthe
intrusion because it "regularize[s]" enforcement). It is, however, absurd to suggest that
the Constitution favors, or even tolerates, such extreme measures! To this Court's
knowledge, no program has ever been upheld under the "special needs" doctrine that was
not tailored, even if imperfectly, in some meaningful way. 19 Yet in this case the
Government has made no attempt to tailor its program at all. See Earls, 536 U.S. at 852
(Ginsburg, J., dissenting) ("There is a difference between imperfect tailoring and no
tailoring at all.").
Furthermore, although the intrusion plaintiffs now face may be "finite" in
duration, it is certainly not "short." It is telling indeed that the searches and seizures
upheld under the "special needs" doctrine have generally involved searches of
significantly limited duration. See, e.g., Martinez-Fuerte, 428 U.S. at 546-47 (upholding
warrantless stops at a vehicle checkpoint where the average length of the stop was three
19 Although not yet called upon to review an indiscriminate search of the breadth presented here, the Supreme Court has repeatedly hinted that it would be skeptical of a program that lacked sufficient tailoring. See Earls, 536 U.S. at 844 (Ginsburg, J., dissenting) ("Those risks [of illegal drug use], however, are present for all schoolchildren. Vernonia cannot be read to endorse invasive and suspicionless drug testing of all students upon any evidence of drug use, solely because drugs jeopardize the life and health of those who use them."); City ofIndianapolis v. Edmond, 531 U.S. 32, 44 (2000) ("[T]he Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack. The exigencies created by these scenarios are far removed from the circumstances under which authorities might simply stop cars as a matter of course to see if there just happens to be a felon leaving the jurisdiction.") (emphasis added); see also Cassidy, 471 F.3d at 80-81 (recognizing the "legitimate concern" that the government's power to conduct suspicionless searches may be limitless given the threat of terrorism is "omnipresent" but finding that concern not implicated "where the government has imposed security requirements only on the nation's largest ferries after making extensive findings about the risk these vessels present in relation to terrorism and .. . the scope ofthe searches is rather limited").
32

to five minutes). In contrast, under this Program, the NSA collects data on a daily basis and maintains the metadata gathered from those daily searches for five years. Moreover, though the weeks remaining in the Program may seem relatively short given that the previous timeframe was indefinite, this reduced period still significantly dwarfs the duration of the intrusion in all "special needs" cases of which this Court is aware. With respect to the institution of new procedures for authorizing database queries and the new limitations on the extent of the records returned for review, while these new methods of searching may further mitigate the privacy intrusion that occurs when the NSA queries and analyzes metadata, there continues to be no minimization procedures applicable at the collection stage. See Oct. 11, 2013 Primary Order at 3-4 (requiring the Order's recipients to turn over all of their metadata without limit).
Finally, far from Americans being put on notice of the Bulk Telephony Metadata Program such that they could choose to avoid it, the Program was, and continues to be, shrouded in secrecy. This may, of course, be practically necessary for the Program to be effective, but it nevertheless increases the level of the privacy intrusion. See, e.g., Vernonia Sch. Dist. 47Jv. Acton, 515 U.S. 646,657 (1995) (analogizing students who choose to participate in athletics to "adults who choose to participate in closely regulated industry"); Von Raab, 489 U.S. at 675 n.3 ("When the risk is the jeopardy to hundreds of human lives ... that danger alone meets the test of reasonableness, so long as the search is conducted ... with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air.") (internal quotation marks omitted); see also Willner, 928 F.2d at 1190 ("[T]he applicant's
33

knowledge of what will be required, and when, affects the strength of his or her interest."). In sum, despite changes to the Program, the Government is still, in effect, asking this Court to sanction a dragnet of unparalleled proportions.
iii. Nature ofGovernment's Interest and Efficacy Having found that the first two factors militate in plaintiffs' favor, I must finally consider whether the nature of the Government's interest and the efficacy of the Program in meeting its goals are, nevertheless, substantial enough to tip the balance in the Government's favor. As I stated in my December 2013 Opinion, I agree with the Government that the purpose of "identifying unknown terrorist operatives and preventing terrorist attacks" is an interest of the highest order that goes beyond regular law enforcement needs. Klayman, 957 F. Supp. 2d at 39 (internal quotation marks omitted). More specifically, though, I found that the Government's true interest was in identifying and investigating imminent threats faster than would be otherwise possible.20 !d. at 3940. Given that the Program's end is only several weeks away, the Government now also argues that the transition period meets the particular need of avoiding the creation of "an intelligence gap in the midst of the continuing terrorist threat." Gov't's Opp'n 34. While an "intelligence gap"-however amorphous its contours-could be significant in theory, the Government has not sufficiently defined it to date to warrant that characterization.
20 This emphasis remains today, especially in light ofthe evolving nature of the terrorist threat. See Paarmann Decl. ~ 9 ("Because of this increasingly diffuse threat environment, the availability of all investigative tools that permit the [Government] to detect and respond to terrorist threats quickly, has become increasingly important."); see also Gov't's Opp'n 35 ("Analysis of telephony metadata to quickly detect contacts of known or suspected terrorists is an important component of the Government's counter-terrorism arsenal.").
34

But even if it had, proffering a significant special need is not the end of this
Court's inquiry. See City ofIndianapolis v. Edmond, 531 U.S. 32, 42 (2000) ("[T]he
gravity of the threat alone cannot be dispositive of questions concerning what means law
enforcement officers may employ to pursue a given purpose."). Rather, I must also
evaluate the efficacy of the searches at issue in meeting this need. See Cassidy, 471 F.3d
at 85-86. To date, the Government has still not cited a single instance in which telephone
metadata analysis actually stopped an imminent attack, or otherwise aided the
Government in achieving any time-sensitive objective.21 Although the Government is not
required to adduce a specific threat in order to demonstrate that a "special need" exists,
see Earls, 536 U.S. at 835-36, providing this Court with examples of the Program's
success would certainly strengthen the Government's argument regarding the Program's
efficacy. This is especially true given that the Program is not designed for detection and
deterrence like most other programs upheld under the "special needs" doctrine. Indeed,
most warrantless searches upheld under the "special needs" doctrine boast deterrence as a
substantial Governmental interest. For example, screening passengers' bags before
allowing them to board a ferry may rarely detect an actual attempt to board with
21 In the Government's most recent declaration regarding the need for the Program, it states that given "an increasing threat of attacks by individuals who act in relative isolation or in small groups," Paarmann Decl. ,-r 5, including at the encouragement of the Islamic State of Iraq and the Levant and al-Qaeda, "the availability of all investigative tools that permit the FBI and its partners to detect and respond to terrorist threats quickly, has become increasingly important," id. at ,-r 9. With respect to the Bulk Telephony Metadata Program, the Government states: "Information gleaned from NSA analysis of telephony metadata can be an important component of the information the FBI relies on to identify and disrupt threats," id. at ,-r 10 (emphasis added), it "can provide information earlier than other investigative methods and techniques," and "earlier receipt of this information may advance an investigation and contribute to the disruption of a terrorist attack that, absent the metadata tip, the FBI might not have prevented in time," id. at ,-r 12 (emphasis added). Not exactly confidence inspiring!
35

dangerous substances or devices, but may nevertheless be deemed reasonable because of its deterrent effect. See Cassidy, 471 F.3d at 85-86; see also Von Raab, 489 U.S. at 675 n.3 ("Nor would we think, in view ofthe obvious deterrent purpose ofthese searches, that the validity of the Government's airport screening program necessarily turns on whether significant numbers of putative air pirates are actually discovered by the searches." (emphasis added)). The same cannot be said of this Program. Because secrecy is the hallmark of the Program, the deterrent value is effectively zero and its efficacy can only be measured by its ability to detect, and thereby prevent, terrorist attacks.
Nevertheless, instead of providing this Court with specific examples of the Program's success, the Government makes the bootstrap argument that the enactment of the USA FREEDOM Act confirms the importance of this Program to meeting the Government's special needs, Gov't's Opp'n 34, and suggests that this Court should defer to that judgment, see id. at 35 n.24. Please! I recognize that my duty to evaluate the efficacy of this Program is "not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger." See Mich. Dep 't of State Police v. Sitz, 496 U.S. 444, 453 (1990). Nonetheless, while "the choice among such reasonable alternatives remains with the governmental officials," id. at 453-54, I must still determine whether the Program is reasonably effective in accomplishing its goals, even if not optimally so, see Cassidy, 471 F.3d at 85-86 (noting that a court's task is not to determine whether a particular program is "optimally effective, but whether it [is] reasonably so"). This is a conclusion I simply cannot reach given the continuing lack
36

of evidence that the Program has ever actually been successful as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism. Accordingly, having determined that the Government has proffered a "special need," but done nothing to abate my lingering doubts about whether the Bulk Telephony Metadata Program is reasonably effective at meeting this need, I find this factor weighs in the Government's favor, but only to a limited extent.
In conclusion, I find that plaintiffs are substantially likely to demonstrate that they have a robust privacy interest in their aggregated metadata and that the intrusion thereon by the Bulk Telephony Metadata Program is substantial. Against these factors, which weigh heavily in plaintiffs' favor, I further find that, although the Government has proffered a compelling "special need" of quickly identifying and investigating potential terror threats, plaintiffs will likely be able to show that the Program is not reasonably effective at meeting this need. Therefore, plaintiffs will likely succeed in showing that the Program is indeed an unreasonable search under the Fourth Amendment. B. Plaintiffs Will Suffer Irreparable Harm Absent Injunctive Relief.
As I have discussed at length, plaintiffs have demonstrated that they are substantially likely to succeed on their claim that the Government is actively violating the rights guaranteed to them by the Fourth Amendment. Because "[i]t has long been established that the loss of constitutional freedoms, 'for even minimal periods oftime, unquestionably constitutes irreparable injury,"' Mills v. District ofColumbia, 571 FJd 1304, 1312 (D.C. Cir. 2009) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)), the
37

Little plaintiffs have adequately demonstrated irreparable injury. As such, it makes no
difference that this violation now has a foreseeable end.22
C. The Public Interest and Potential Injury to Other Interested Parties Both Weigh in Plaintiffs' Favor.
The final factors I must consider in weighing plaintiffs' entitlement to preliminary
injunctive relief are the balance of the equities and the public interest. See Sottera, 627
F.3d at 893. As an initial matter, I emphasize the obvious: "enforcement of an
unconstitutional law is always contrary to the public interest." Gordon v. Holder, 721
F.3d 638, 653 (D.C. Cir. 2013); see also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d
1114, 1145 (1Oth Cir. 2013) ("[I]t is always in the public interest to prevent the violation
of a party's constitutional rights." (internal quotation marks omitted)), aff'd sub nom.
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014); Melendres v. Arpaio, 695
F.3d 990, 1002 (9th Cir. 2012) (same); Am. Freedom Def Initiative v. Wash. Metro. Area
Transit Auth., 898 F. Supp. 2d 73, 84 (D.D.C. 2012) (same); Nat'! Fed'n ofFed. Emps. v.
Carlucci, 680 F. Supp. 416, 435 (D.D.C. 1988) ("[T]he public interest lies
22 Against this presumption, the Government incredibly argues that the Little plaintiffs' claim of irreparable harm is necessarily undercut by their more than two-year delay in joining this suit. Gov't's Opp'n 24 n.l2. Come on! While delay in filing may suggest the proffered harm is not truly irreparable, late filing alone is not a sufficient basis for denying a preliminary injunction. See Gordon v. Holder, 632 F.3d 722, 724 (D.C. Cir. 2011) ("[A] delay in filing is not a proper basis for denial of a preliminary injunction."). In this case, I do not find the two-year delay to be significant. Although the Government emphasizes the "personal" nature of Fourth Amendment rights, see Gov't's Opp'n 29, it was certainly reasonable for the Little plaintiffs to perceive that their rights would ultimately be vindicated by other similarly-situated plaintiffs-the expectation of privacy in their telephony metadata is identical and the searches thereof were reasonably inferred to be the same. Cf Cooper v. Aaron, 78 S. Ct. 1401 (1958) (holding that Arkansas state officials were bound by the Supreme Court's prior decision that racial segregation in public schools was unconstitutional in a case involving four different states that employed a similar system). Until our Circuit Court's decision regarding standing, there was little reason for the Little plaintiffs to believe they were uniquely positioned to challenge the Program.
38

in enjoining unconstitutional searches."). Given my finding that plaintiffs are likely to succeed on the merits of their Fourth Amendment claim, the public interest weighs heavily in their favor.
Undaunted, the Government argues that the public interest actually counsels against granting a preliminary injunction in this case because of the public's strong interest in maintaining an ability to quickly identify and investigate terrorist threats. See Gov't's Opp'n 45. Indeed, the Government goes one step further by arguing that United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001), requires this Court to defer to Congress's "determination" that continuing the Program during the 180day transition period is the best way to protect the public's interest.23 See Gov't's Opp'n 38. Not quite! Congress did not explicitly authorize a continuation of the Program. Rather, it artfully crafted a starting date for the prohibition of the Program that would enable the Government to confidentially seek FISC authorization to continue the Program for the 180-day transition period and free the Members of Congress from having to vote for an explicit extension of the Program. See USA FREEDOM Act of2015, Pub. L. No. 114-23, § 109, 128 Stat. 268,276 (2015). Moreover, while Oakland"prohibits a district court from second-guessing Congress's lawful prioritization of its policy goals," it in no way limits a court from evaluating "the lawfulness of Congress's means of achieving those priorities." Gordon, 721 F.3d at 652-53; see also Vilsack, 681 F .3d at 490 (noting
23 In Oakland, the district court enjoined the defendant cooperative from distributing marijuana except in cases of medical necessity. In overturning the appeals court decision affirming this injunction, the Supreme Court found that the district court could not ignore Congress's determination, as expressed through legislation, that marijuana has no medical benefits warranting its limited distribution. Oakland, 532 U.S. at 496-99.
39

that "[d]eference is never blind" and "the constitutional question is distinct from policy
questions involving otherwise constitutional administrative judgments about how best to
operate a program"). Congress, of course, is not permitted to prioritize any policy goal
over the Constitution. Gordon, 721 F.3d at 653. Nor am I! See Marbury v. Madison, 5
U.S. 137, 180 (1803) ("Thus, the particular phraseology of the constitution of the United
States confirms and strengthens the principle, supposed to be essential to all written
constitutions, that a law repugnant to the constitution is void; and that courts, as well as
other departments, are bound by that instrument.").24 This Court simply cannot, and will
not, allow the Government to trump the Constitution merely because it suits the
exigencies of the moment.
This Court's vigilance in upholding the Constitution against encroachment is, of
course, especially strong in the context of the Fourth Amendment. Indeed, the Judiciary
has long recognized that:
Moved by whatever momentary evil has aroused their fears, officials-perhaps even supported by a majority of citizensmay be tempted to conduct searches that sacrifice the liberty of each citizen to assuage the perceived evil. But the Fourth Amendment rests on the principle that a true balance between the individual and society depends on the recognition of "the
24 For this reason, it is unsurprising that the Government has not proffered a single case in which a plaintiff who was likely to prevail on the merits of a constitutional claim was denied a preliminary injunction because of the gravity of the public interest. In In re Navy Chaplaincy, 697 F.3d 1171 (D.C. Cir. 2012), our Circuit was reviewing the denial of a preliminary injunction where the District court concluded that although plaintiffs had shown irreparable harm, they were not likely to succeed on the merits of their First Amendment claims and the public interest and balance of the equities weighed against them. Id. at 1178-79. Similarly, in Davis v. Billington, 76 F. Supp. 3d 59 (D.D.C. 2014), the District court denied a request for preliminary injunction where all the preliminary injunction factors weighed against plaintiff, including his likelihood of success on the merits of his constitutional claim. I d. at 68-69.
40

right to be let alone-the most comprehensive of rights and the right most valued by civilized men." New Jersey v. TL.O., 469 U.S. 325,361-62 (1985) (quoting Olmsteadv. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)). To be sure, the very purpose ofthe Fourth Amendment would be undermined were this Court to defer to Congress's determination that individual liberty should be sacrificed to better combat today's evil. The Government concludes by discussing at length the negative impact an injunction in this case would have on the Program as a whole, including that the immediate cessation of collection of or analytic access to metadata associated with plaintiffs' telephone numbers, if ordered, would require the NSA to terminate the Program altogether. Gov't's Opp'n 41-45. This would be the case, the Government argues, for several reasons. First, the NSA would need to obtain information regarding plaintiffs' telephone numbers and would need to be granted FISC authorization to access the database for the purpose of complying with this Court's order. Gov't's Opp'n 41-42. Beyond these preliminary steps, it would take an undetermined amount of time to develop the technical means to comply with the Court's order, including figuring out how to ensure no new metadata relating to plaintiffs' records is added to the database and how to discontinue analytic access to any metadata relating to plaintiffs' records that is currently in the database. Gov't's Opp'n 43-44. Unfortunately for the Government, this Court does not have much sympathy for these last minute arguments. The Government was given unequivocal notice that it may be required to undertake steps of this nature in my December 2013 Opinion granting plaintiffs' request for a preliminary injunction.
41

Indeed, I expressly warned against any future request for delay stating, "I fully expect that during the appellate process, which will consume at least the next six months, the Government will take whatever steps necessary to prepare itself to comply with this order when, and if, it is upheld." Klayman, 957 F. Supp. 2d at 44. Given that I significantly under-estimated the duration of the appellate process, the Government has now had over twenty-two months to develop the technology necessary to comply with this Court's order. To say the least, it is difficult to give meaningful weight to a risk ofhann created, in significant part, by the Government's own recalcitrance.
CONCLUSION With the Government's authority to operate the Bulk Telephony Metadata Program quickly coming to an end, this case is perhaps the last chapter in the Judiciary's evaluation of this particular Program's compatibility with the Constitution. It will not, however, be the last chapter in the ongoing struggle to balance privacy rights and national security interests under our Constitution in an age of evolving technological wizardry. Although this Court appreciates the zealousness with which the Government seeks to protect the citizens of our Nation, that same Government bears just as great a responsibility to protect the individual liberties of those very citizens. Thus, for all the reasons stated herein, I will grant plaintiffs J.J. Little and J.J. Little & Associates' requests for an injunction25 and enter an order consistent with this Opinion that (1) bars the Government from collecting, as part ofthe NSA's Bulk
25 For reasons stated at the outset, this relief is limited to these plaintiffs. I will deny the motion as it relates to plaintiffs Larry Klayman, Charles Strange, and Mary Ann Strange.
42

Telephony Metadata Program, any telephony metadata associated with these plaintiffs' Verizon Business Network Services accounts and (2) requires the Government to segregate any such metadata in its possession that has already been collected.26 In my December 2013 Opinion, I stayed my order pending appeal in light ofthe national security interests at stake and the novelty of the constitutional issues raised. I did so with the optimistic hope that the appeals process would move expeditiously. However, because it has been almost two years since I first found that the NSA's Bulk Telephony Metadata Program likely violates the Constitution and because the loss of constitutional freedoms for even one day is a significant harm, see Mills, 571 F.3d at 1312, I will not do so today.
26 Although it is true that granting plaintiffs the relief they request will force the Government to identify plaintiffs' phone numbers and metadata records, and then subject them to otherwise unnecessary individual scrutiny, see Gov't's Opp'n 41-42, that is the only way to remedy the constitutional violations that plaintiffs are substantially likely to prove on the merits.
43

 
 USCA Case #15-5307 Document #1583061

Filed: 11/10/2015 Page 1 of 1

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 15-5307

September Term, 2015

Larry Elliott Klayman, et al.,

1:13-cv-00851-RJL Filed On: November 10, 2015

Appellees

v.

Barack Obama, et al.,

Appellants

Roger Vinson,

Appellee

National Security Agency and United States Department of Justice,

Appellants

BEFORE: Tatel, Griffith, and Millett, Circuit Judges
O R D E R
Upon consideration of the emergency motion for a stay and for an administrative stay, it is
ORDERED that the district court’s order issued November 9, 2015, be stayed pending further order of the court. The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for a stay and should not be construed in any way as a ruling on the merits of that motion. See D.C. Circuit Handbook of Practice and Internal Procedures 33 (2015). It is
FURTHER ORDERED, on the court’s own motion, that appellees file a response, not to exceed 20 pages, by 12:00 noon, Friday, November 13, 2015, and that appellants file any reply by 12:00 noon, Monday November 16, 2015. The parties are directed to hand-deliver the paper copies of their submissions to the court by the time and date due.
Per Curiam

 
 USCA Case #15-5307 Document #1584707

Filed: 11/20/2015 Page 1 of 4

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed: November 20, 2015
No. 15-5307
LARRY ELLIOTT KLAYMAN, ET AL., APPELLEES
v.
BARACK OBAMA, ET AL., APPELLANTS
ROGER VINSON, APPELLEE
On Emergency Petition for Rehearing En Banc Review of this Circuit=s Order of November 16, 2015
Larry E. Klayman was on the emergency petition for rehearing en banc.
Before: GARLAND, Chief Judge, and HENDERSON, ROGERS, TATEL, BROWN, GRIFFITH, KAVANAUGH, * SRINIVASAN, MILLETT, PILLARD, AND WILKINS, Circuit Judges.

USCA Case #15-5307 Document #1584707

Filed: 11/20/2015 Page 2 of 4

2 O R D E R
Upon consideration of the emergency petition for rehearing en banc, and the absence of a request by any member of the court for a vote, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Ken Meadows Deputy Clerk
* A statement by Circuit Judge Kavanaugh, concurring in the denial of rehearing en banc, is attached.

USCA Case #15-5307 Document #1584707

Filed: 11/20/2015 Page 3 of 4

KAVANAUGH, Circuit Judge, concurring in the denial of rehearing en banc: I vote to deny plaintiffs’ emergency petition for rehearing en banc. I do so because, in my view, the Government’s metadata collection program is entirely consistent with the Fourth Amendment. Therefore, plaintiffs cannot show a likelihood of success on the merits of their claim, and this Court was right to stay the District Court’s injunction against the Government’s program.
The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979). That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.
Even if the bulk collection of telephony metadata constitutes a search, cf. United States v. Jones, 132 S. Ct. 945, 954-57 (2012) (Sotomayor, J., concurring), the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law. The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient “special need” – that is, a need beyond the normal need for law enforcement – that outweighs the intrusion on individual liberty. Examples include drug testing of students, roadblocks to detect drunk drivers, border checkpoints, and security screening at airports. See Vernonia School District 47J v. Acton, 515 U.S. 646 (1995); Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990); United States v. Martinez-Fuerte, 428 U.S. 543 (1976); United States v. Edwards, 498 F.2d 496 (2d Cir. 1974); see also Indianapolis v. Edmond, 531 U.S. 32, 47-48 (2000). The Government’s program for bulk collection of

USCA Case #15-5307 Document #1584707

Filed: 11/20/2015 Page 4 of 4

2
telephony metadata serves a critically important special need – preventing terrorist attacks on the United States. See THE 9/11 COMMISSION REPORT (2004). In my view, that critical national security need outweighs the impact on privacy occasioned by this program. The Government’s program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government’s program fits comfortably within the Supreme Court precedents applying the special needs doctrine.
To be sure, sincere and passionate concerns have been raised about the Government’s program. Those policy arguments may be addressed by Congress and the Executive. Those institutions possess authority to scale back or put more checks on this program, as they have done to some extent by enacting the USA Freedom Act.
In sum, the Fourth Amendment does not bar the Government’s bulk collection of telephony metadata under this program. I therefore agree with this Court’s decision to stay the District Court’s injunction.

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 15-5307

September Term, 2015

Larry Elliott Klayman, et al.,

1:13-cv-00851-RJL Filed On: November 16, 2015

Appellees

v.

Barack Obama, et al.,

Appellants

Roger Vinson,

Appellee

BEFORE: Tatel, Griffith, and Millett, Circuit Judges
O R D E R
Upon consideration of the emergency motion for a stay pending appeal, the response thereto, and the reply; and the administrative stay entered on November 10, 2015, it is
ORDERED that the administrative stay be dissolved. It is
FURTHER ORDERED that the motion for a stay be granted. Appellants have satisfied the requirements for a stay pending appeal. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 129 S. Ct. 365, 374 (2008); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2015).
Per Curiam

FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Scott H. Atchue Deputy Clerk

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LARRY KLAYMAN, 2020 Pennsylvania Ave. NW, Suite 345 Washington, DC 20006

and

CHARLES STRANGE, Philadelphia, Pennsylvania
and

Civil Action No.: 13-cv-881-RJL

MARY ANN STRANGE, Philadelphia, Pennsylvania

and

MICHAEL FERRARI, Santa Clara, California

THIRD AMENDED COMPLAINT

and

MATT GARRISON, Long Beach, California

and

JEFFREY JAMES (“J.J.”) LITTLE, Marina del Rey, California

by and on behalf of himself

and

J.J. LITTLE & ASSOCIATES, P.C., Marina del Rey, California

Plaintiffs, v.

BARACK HUSSEIN OBAMA II, individually and in his professional capacity, 1600 Pennsylvania Ave. NW Washington, DC 20500

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and
ERIC HIMPTON HOLDER, JR., individually and in his professional capacity as U.S. Attorney General, 555 Fourth St. NW Washington, DC 20530
and
KEITH B. ALEXANDER, individually and in his professional capacity, Director of the National Security Agency, 9800 Savage Rd. Fort Meade, MD 20755
and
ROGER VINSON, individually and in his professional capacity, Judge, U.S. Foreign Intelligence Surveillance Court 950 Pennsylvania Ave. NW Washington, DC 20530
and
JAMES CLAPPER, individually and in his professional capacity, Director of National Intelligence, Washington, DC 20511
and
JOHN O. BRENNAN, individually and in his professional capacity, Director of the Central Intelligence Agency, Central Intelligence Agency Washington, DC 20505
and
JAMES COMEY, individually, and in his professional capacity Director Of The Federal Bureau Of Investigation Federal Bureau Of Investigation 935 Pennsylvania Avenue, NW
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Washington, DC 20535 and NATIONAL SECURITY AGENCY, 9800 Savage Rd. Fort Meade, MD 20755 and THE U.S. DEPARTMENT OF JUSTICE, 950 Pennsylvania Ave. NW Washington, DC 20530 and FEDERAL BUREAU OF INVESTIGATION 935 Pennsylvania Avenue, NW Washington, DC 20535 and CENTRAL INTELLIGENCE AGENCY Washington, DC 20505
Defendants.
THIRD AMENDED COMPLAINT Plaintiffs, Larry Klayman, Charles and Mary Ann Strange, Michael Ferrari, Matthew Garrison, J.J. Little, and J.J. Little & Associates, P.C., (collectively “Plaintiffs”) bring this action on their own behalf and hereby sue Barack Hussein Obama II, Eric Holder, Keith B. Alexander, Roger Vinson, James Clapper, John O. Brennan, James Comey, the Federal Bureau of Investigation (“FBI”), the Central Intelligence Agency (“CIA”), the U.S. Department of Justice (“DOJ”), and the National Security Agency (“NSA”), (collectively “Defendants”), in their personal and official capacities, for violating Plaintiffs’ constitutional rights as a result of the below pled illegal unconstitutional acts. Plaintiffs allege as follows:
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INTRODUCTION 1. This is an action for monetary, declaratory, equitable, and injunctive relief as a result of
the U.S. Government’s illegal and unconstitutional use of electronic surveillance programs in violation of the First, Fourth, and Fifth Amendments of the U.S. Constitution. In addition, this lawsuit challenges the Defendants' expansive acquisition of Plaintiffs’ telephone metadata, Internet metadata and social media records under Section 215 of the Patriot Act, 50 U.S.C. § 1860 and the legality of a secret and illegal scheme to intercept and analyze vast quantities of communications from telephone, Internet and electronic service providers. 2. The NSA’s classified surveillance program, referred to as “PRISM,” is an internal government computer system, authorized by Section 702 of the Foreign Intelligence Surveillance Act ("FISA") (50 U.S.C. § 1881a), and is used to manage domestic and foreign intelligence collected from the Internet and other electronic service providers. Government officials have indicated this program has been in place for seven years and that it collects records of all communications companies including Google, Yahoo!, Facebook, PalTalk, YouTube, Skype, AOL, and Apple, Verizon Business Network Services and Verizon Wireless (“Verizon”), AT&T, and Sprint. 3. Defendants have admitted that they are collecting metadata about every phone call made or received by residents and/or citizens of the United States, and these records provide intricate details, including the identity of the individual who was spoken to, the length of time of the conversation, and where the conversation took place. Moreover, it gives the Defendants a comprehensive record of an individual’s associations, speech, and public
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movements while revealing personal details about an individual’s familial, political, professional, religious, and intimate associations. 4. For example, recently Defendants ordered access to Verizon’s electronic copies of the following tangible things: all call detail records or "telephony metadata" created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls. Such telephony metadata includes comprehensive communications routing information, including but not limited to session identifying information (e.g. originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.) trunk identifier, telephone calling card numbers, and time and duration of call. 5. On June 5, 2013, The Guardian published an article, based on whistleblower Edward Snowden’s revelations, all of which have never been controverted, entitled, "NSA collecting phone records of millions of Verizon customers daily. Exclusive: Top secret court order requiring Verizon to hand over all call data shows scale of domestic surveillance under Obama." The Defendants, on the orders and authorization of the President, the Attorney General, the DOJ and the NSA, obtained a top secret court order ("Verizon Order") that directs Verizon to turn over the telephone records of over one hundred million Americans to the NSA on an ongoing daily basis. Based on knowledge and belief, this Verizon Order is the broadest surveillance order to ever have been issued; it requires no level of reasonable suspicion or probable cause and incredibly applies to all Verizon subscribers and users anywhere in the United States and overseas.
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6. Prior to this disclosure and revelation, Plaintiffs had no notice and no reasonable opportunity to discover the existence of the surveillance program or the violation of the laws alleged herein.
7. Additionally, the NSA, CIA, and the FBI siphoned personal data from the main computer servers of major U.S. Internet firms, including Microsoft (Hotmail, etc.), Google, Yahoo!, Facebook, PalTalk, YouTube, Skype, AOL, and Apple. The information the NSA receives in the surveillance and collection of stored communications include, emails, chat (video/voice), videos, photos, stored data, VoIP, file transfers, video conferencing, notification of target activity (i.e. logins, etc.), online social networking details, and other special requests.
8. It has become known that through a government program entitled "MUSCULAR," the FBI, CIA, and NSA have been intercepting information of the entirety of American citizenry from Internet companies such as Google and Yahoo! as it travels over fiber optic cables from one data center to another.
9. Such broad and intrusive collections and surveillance tactics, without regard to any showing of probable cause, much less a reasonable suspicion of communications with terrorists or the commission of another crime, directly violate the U.S. Constitution and also federal laws, including, but not limited to, the outrageous breach of privacy, freedom of speech, freedom of association and the due process rights of American citizens. Plaintiffs are suing for damages, declaratory, equitable, and injunctive relief to stop this illegal conduct and hold Defendants, individually and collectively, responsible for their unconstitutional surveillance, which has violated the law and damaged the fundamental freedoms and rights of American citizens.
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10. While the Government Defendants represented that the bulk collection of Internet metadata pursuant to Section 215 was discontinued in 2011, this representation was false. The Government Defendants simply played a shell-game where they shifted the unconstitutional acts from Section 215 over to their continuing PRISM program under Section 702. This was revealed by Defendant James Clapper’s admissions to Senator Ron Wyden. See Exhibits  and, incorporated herein by reference. THE PARTIES
11. Plaintiff Larry Klayman is an individual and an international attorney who is a subscriber and user of Verizon Wireless, Vonage, Apple, Microsoft, YouTube, Yahoo, Google, Facebook, Twitter, AT&T, and Skype at all material times. Klayman routinely communicates with members of the public as well as journalists and associates by telephonic communications and electronic messages through Facebook, Google, Apple, and Skype. Klayman’s communications, particularly as an attorney, are sensitive and often privileged. Plaintiff Klayman resided in the District of Columbia (“D.C.”) for over twenty years and continues to conduct business in Washington, D.C. as the Chairman and General Counsel of Freedom Watch and otherwise. Plaintiff Larry Klayman is a public advocate and has filed lawsuits against President Obama and has been highly critical of the Obama administration as a whole. Defendants have accessed the records pertaining to Plaintiff Klayman.
12. Plaintiff Klayman frequents and routinely telephones and e-mails individuals and highranking government officials in Israel, a high-conflict area where the threat of terrorism is always present. U.S. and Israeli intelligence agencies are constantly monitoring the telecommunications in Israel in order to prevent any future attacks by terrorists.
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13. While in Israel, most recently in 2009, 2010, and 2012, Klayman met with the Press Secretary for Prime Minister Benjamin Netanyahu, Mr. Mark Regev, as well as Daniel B. Shapiro, who is now the U.S. Ambassador to the United States to the State of Israel. Plaintiff Klayman also communicates with Mr. Regev internationally via telephone and e-mail. In 2012 Plaintiff Klayman was in Jerusalem and Tel Aviv during the war with Hamas and experienced rocket attacks while he was in Tel Aviv.
14. Plaintiff Klayman also met with Ron Nachman who was mayor of the city of Ariel, Israel until his death in 2013. Plaintiff Klayman remained in telephone and e-mail communication with Mr. Nachman and his aides after his visit to Israel. Importantly, Ariel is located in Judea, which Palestinians and other Arabs falsely call “Occupied Territory.” Judea is a breeding ground for terrorists.
15. Plaintiff Klayman has also telephoned and e-mailed Danny Danon, a member of Israel's Knesset (legislative body), who is currently serving as the Deputy Minister of Defense in the Cabinet of Prime Minister Benjamin Netanyahu.
16. In addition, Plaintiff has been in telephone and e-mail contact with Aaron Klein in Israel, an investigative reporter who hosts a radio show on WABC in New York, which originates in Israel. In fact, Klayman was recently interviewed by Aaron Klein regarding the NSA, during which time the radio show experienced what the host called "a tech meltdown." Specifically, software used by the radio station "dropped" Plaintiff Klayman from the phone line and listeners who had called in to ask Klayman questions were cut out in mid-sentence. It is clear that the NSA was attempting to harass him, Aaron Klein, and anyone connected to this show, many of whom had been critical of the Defendants, including President Obama.
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17. Plaintiff Klayman also telephoned and e-mailed individuals within Spain in preparation for his visit to Spain in July of 2012 where he met with prominent human rights lawyers to discuss bringing an action against the Islamic Republic of Iran and its officials for violations of human rights. Plaintiff continued communication with those he met in Spain following his visit. Prior to this, Plaintiff Klayman telephoned and e-mailed individuals in India in preparation for his trip to India in 2007, where he served process on the Prime Minister of India. Similarly, in May of 2012, Plaintiff Klayman traveled to the headquarters of the Organization of the Petroleum Exporting Countries ("OPEC") located in Vienna, Austria in order to personally serve it with process and has made calls to Austria in this regard. Among OPEC’s members is the Islamic Republic of Iran, and other Islamic states, which further, harbor and/or have close ties to terrorism. In fact, the oil revenues of OPEC help fund terrorism and terrorists bent on destroying the United States, its ally Israel, and other western and European interests. Plaintiff Klayman also routinely sends and receives e-mails and telephone communications to and from Italy, France, Great Britain, Morocco, Germany, Belgium and other European Union nations which have very large Muslim populations and where terrorist cells are located and thus where terrorist attacks have been perpetrated resulting in numerous deaths and maimed persons.
18. In light of Plaintiff Klayman's foreign contacts and communications, including frequent telephone calls and e-mail correspondence domestically and internationally, Defendants would have inevitably been monitoring Plaintiff Klayman in the ordinary course of their surveillance. In fact, given Plaintiff Klayman's contacts in the regions he has traveled to,
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Plaintiff Klayman was undoubtedly targeted by Defendants and his domestic and foreign communications gathered and surveilled. 19. Plaintiffs Charles Strange and Mary Ann Strange are individuals and the parents of Michael Strange, a Navy cryptologist assigned to SEAL Team VI who was killed when the helicopter he was in was attacked and shot down by terrorist Taliban jihadists in Afghanistan on August 6, 2011. Plaintiffs Charles and Mary Ann Strange are consumers, subscribers, and users of Verizon Wireless, Google/Gmail, Yahoo, Facebook, AOL, and YouTube. Plaintiff Charles Strange is a subscriber of Verizon Wireless. Plaintiff Mary Ann Strange is also a subscriber of Verizon Wireless. On information and belief, Defendants have accessed Plaintiff Stranges’ records particularly since these Plaintiffs have been vocal about their criticism of President Obama as commander-in-chief, his administration, and the U.S. military regarding the circumstances surrounding the shoot down of their son’s helicopter in Afghanistan, which resulted in the death of his son and other Navy SEAL Team VI members and special operation forces. Plaintiffs Charles Strange and Mary Ann Strange have substantial connections with Washington, D.C., as they hold press conferences in Washington, D.C. and lobby in Washington, D.C. as advocates for Michael Strange and to obtain justice for him, as well as to change the policies and orders of President Obama and the U.S. military’s acts and practices, which contributed to Michael Strange’s death. Plaintiffs Charles and Mary Ann Strange also make telephone calls and send and receive e-mails to and from foreign countries and have received threatening e-mails and texts from overseas, in particular Afghanistan. 20. Plaintiff Ferrari is an individual who is a subscriber, consumer, and user of Sprint, Google/Gmail, Yahoo!, and Apple. As a prominent private investigator, Ferrari regularly
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communicates, both telephonically and electronically, with associates and other members of the public, regarding various matters including work-related discussions. Additionally, Ferrari’s e-mails contain private details, discussions, and communications. Similarly, Ferrari’s Apple products contain confidential documents and information. Plaintiff Ferrari also makes and receives telephone calls and sends and receives e-mails to and from foreign countries. 21. Plaintiff Garrison is an individual who is a consumer and user of Facebook, Google, YouTube, and Microsoft products. Plaintiff Garrison is required to use his computer, which contains Microsoft programming, for personal matters as well as work related matters, as a prominent private investigator. Plaintiff stores various documents and records on his computer, which are private records. Plaintiff Garrison also makes and receives telephone calls and sends and receives e-mails to and from foreign countries. 22. Plaintiff J.J. Little is in individual and a criminal defense lawyer and a member of the California and Ohio Bars. He has litigated and continues to litigate against the Government on behalf of his clients. He is therefore in the line of fire of Government surveillance by the Government Defendants. This implicates breaches of attorney-client privilege and work product. At all material times, Plaintiff Little, for himself and by and through his law firm, J.J. Little & Associates, has been and continues to be a subscriber of Verizon Business Network Services for his firm J.J. Little & Associates, P.C. At all material times, both J.J. Little and J.J. Little & Associates are subscribers of Verizon Business Network Services and Verizon Wireless. Plaintiffs Little and J.J. Little & Associates, P.C. also use and subscribe to the Internet and social media, as set forth herein.
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23. Each and every Plaintiff uses and subscribes to the enumerated telephonic, Internet and social media communications providers and uses these services both domestically and internationally.
24. Defendant Barack Hussein Obama ("Obama") is the President of the United States and currently resides in Washington, D.C.
25. Defendant Eric Holder ("Holder") is the Attorney General of the United States and conducts his duties as the Attorney General in Washington, D.C.
26. Defendant Keith B. Alexander ("Alexander") is the Director of the National Security Agency. He is also the commander of the U.S. Cyber Command, where he is responsible for planning, coordinating, and conducting operations of computer networks. He is also at the command for U.S. National Security Information system protection responsibilities. He conducts his duties for the National Security Agency in Washington, D.C.
27. Defendant Roger Vinson ("Vinson") is a judge to the U.S. Foreign Intelligence Surveillance Court.
28. Defendant James Clapper (“Clapper”) is currently the Director of National Security and conducts his duties as the Director of National Security in Washington, D.C.
29. Defendant John O. Brennan ("Brennan") is currently the Director of the Central Intelligence Agency and conducts his duties in Washington, D.C.
30. Defendant James Comey ("Comey") is currently the Director of the Federal Bureau of Investigation and conducts his duties in Washington, D.C.
31. Defendant National Security Agency ("NSA") is an intelligence agency of the U.S. Department of Defense and conducts its duties in Washington, D.C.
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32. Defendant U.S. Department of Justice ("DOJ") is responsible for the enforcement of the law and administration of justice, and its headquarters is located in Washington, D.C., where it conducts most of its activities and business.
33. Defendant Central Intelligence Agency (“CIA”) is responsible for providing national security intelligence to senior U.S. policymakers and conducts its duties in Washington, D.C.
34. Defendant Federal Bureau of Investigation (“FBI”) is a governmental agency belonging to the U.S. Department of Justice that services as an internal intelligence agency and conducts its duties in Washington, D.C.
35. All of these Defendants, each and every one of them, jointly and severally, acted in concert to violate the constitutional privacy rights, free speech, freedom of association, due process, and other legal rights of Plaintiffs. JURISDICTION AND VENUE
36. This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331 (Federal Question Jurisdiction).
37. Jurisdiction and venue are proper pursuant to 28 U.S.C. § 1331, which states in pertinent part, “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” At issue here is the unconstitutional violation of Plaintiffs' rights under the First, Fourth, and Fifth Amendments to the U.S. Constitution.
38. Supplemental jurisdiction is also proper under 28 U.S.C. § 1367, which states in pertinent part, “ . . . in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related
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to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the U.S. Constitution.” 39. Plaintiffs are informed, believe and thereon allege that, based on the places of business of the Defendants and/or on the national reach of Defendants, a substantial part of the events giving rise to the claims herein alleged occurred in this district and that Defendants and/or agents of Defendants may be found in this district.
STANDING 40. Plaintiffs bring this action because they have been directly affected, victimized, and
severely damaged by the unlawful conduct complained herein. Their injuries are proximately related to the egregious, illegal, unconstitutional and indeed criminal acts of Defendants Obama, Holder, Alexander, Comey, Brennan, Vinson, Clapper, FBI, CIA, DOJ and NSA, each and every one of them, jointly and severely, acting in their personal and official capacities.
STATEMENT OF FACTS 41. Defendants, through the NSA and CIA, and with the participation of certain
telecommunications and Internet companies, have conducted surveillance and intelligence-gathering programs that collect certain data about the telephone and Internet activity of American citizens within the United States. In fact, the NSA began a classified surveillance program, known as “PRISM,” used to intercept telephonic and Internet communications of persons inside the United States and overseas. 42. As recently discovered, on June 5, 2013, The Guardian reported the first of several “leaks” of classified material from Edward Snowden, a former NSA contract employee who has revealed – and continues to reveal—multiple U.S. Government intelligence
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collection and surveillance programs. Specifically, The Guardian published an article entitled, "NSA collecting phone records of millions of Verizon customers daily. Exclusive: Top secret court order requiring Verizon to hand over all call data shows scale of domestic surveillance under Obama." Pursuant to this top-secret order, issued by Judge Roger Vinson, the Government, on the orders and authorization of the President, the Attorney General, the DOJ, and the NSA, obtained a highly classified order directing Verizon to turn over the telephone records of over one hundred million Americans to the NSA on an ongoing daily basis. 43. Specifically, Defendant Vinson ordered access to electronic copies of the following tangible things: all call detail records or "telephony metadata" created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls. Telephony metadata includes comprehensive communications routing information, including but not limited to session identifying information (e.g. originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.) trunk identifier, telephone calling card numbers, and time and duration of call. Defendant Vinson’s Order further required Verizon to turn over originating and terminating telephone numbers as well as the location, time, and duration of the calls. In essence, the Order gives the NSA blanket access to the records of over one hundred million of Verizon customers’ domestic and foreign phone calls made between April 25, 2013, when the Order was signed, and July 19, 2013, when the Order is supposed to, on its face, expire.
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44. Based on knowledge and belief, this Order issued by Defendant Vinson is the broadest surveillance order to ever have been issued; it requires no level of reasonable suspicion or probable cause and incredibly applies to all Verizon subscribers and users anywhere in the United States and overseas.
45. Defendant Vinson's Order shows for the first time that, under Defendant Obama's administration, the communication records of over one hundred million of U.S. citizens are being collected indiscriminately and in bulk - regardless of whether there is reasonable suspicion or any “probable cause” of any wrongdoing.
46. Since June 5, 2013, Defendants have been widely condemned by American citizens regarding their failure to uphold the U.S. Constitution and intentionally violating the fundamental rights of Plaintiffs and over one hundred million of other Americans, particularly as new information comes to light regarding the Defendants' countless surveillance programs and intrusive overreaching tactics. As just one example, Senator Rand Paul called the surveillance of Verizon phone records "an astounding assault on the Constitution," calling for a class action lawsuit.
47. Such schemes by the Defendants have subjected untold numbers of innocent people to the constant surveillance of government agents. As Jameel Jaffer, the ACLU’s deputy legal director, stated, “It is beyond Orwellian, and it provides further evidence of the extent to which basic democratic rights are being surrendered in secret to the demands of unaccountable intelligence agencies.” Recently the Court agreed, calling the Defendants' programs "almost Orwellian" and stating that the Court "cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and
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retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval.” 48. To date, Defendants have not issued substantive and meaningful explanations to the American people describing what has occurred. Rather, on information and belief, the NSA, under the authorization of President Obama, continues to engage in a systematic program of warrantless eavesdropping upon phone, e-mail, Internet, and social media communications of hundreds of millions of individuals, including American citizens and permanent legal residents, both within and outside of the United States. The NSA surveillance program collects not only the identities of people's communications with the targets of surveillance, but also the contents of those communications. 49. Such intrusive and illegal surveillance has directly impacted each and every Plaintiff. The revelation that the Defendants have been carrying on widespread warrantless interception of electronic communications has impaired Plaintiffs’ abilities to communicate via telephone, e-mail, social media and otherwise on the Internet, out of fear that their confidential, private, and often privileged communications are being and will be overheard by the NSA’s surveillance program. 50. The risk and knowledge that Plaintiffs’ telephonic, Internet and social media conversations may be overheard, undoubtedly chills speech, in violation of Plaintiffs’ First Amendment rights. 51. It was disclosed on August 12, 2015 by Charlie Savage of The New York Times that Verizon Wireless, as this Court had already ruled in its Order of December 16, 2013, at all material times was conducting and continuing to conduct unconstitutional and illegal dragnet “almost-Orwellian” surveillance on Plaintiffs and millions of other American
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citizens. See Exhibit 1, which is a Government document evidencing this, incorporated herein by reference, and see Exhibit 2, the New York Times article. 52. The Government Defendants withheld this document, dated August 2, 2010 – for five years– and caused the U.S. Court of Appeals for the District of Columbia Circuit to issue a decision based on an incomplete and false record. The Government Defendants and their counsel had a duty to supplement the record and failed to do so in contravention of the rules of professional responsibility and in violation of 18 U.S.C. § 1001, as the omission was intentional, among other violations of law. 53. In addition, the Government Defendants misled this Court and the U.S. Court of Appeals for the District of Columbia Circuit by playing a shell-game whereby they falsely represented that they ceased accessing Internet metadata and other data through Section 215 in 2011, when it is now apparent and has been revealed based on Clapper’s admissions to Senator Ron Wyden that they simply moved, at all material times, this unconstitutional metadata collection violation of the Fourth, First and Fifth Amendment rights over to their continuing PRISM program under Section 702. See Exhibits  and, incorporated herein by reference. 54. The Government Defendants, through the use of the continuing PRISM and MUSCULAR programs, illegally and unconstitutionally surveilled each of the Plaintiffs’ telephone, Internet and social media communications.
FIRST CLAIM FOR RELIEF Fifth Amendment Violation
Defendants Obama, Holder, Alexander, Vinson, Clapper, Comey, Brennan, FBI, CIA, DOJ and NSA
(Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics)
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55. Plaintiffs repeat and reallege all of the previous allegations in paragraphs 1 through 54 of this Third Amended Complaint with the same force and affect, as if fully set forth herein again at length.
56. Plaintiffs enjoy a liberty interest in their personal security and in being free from the Defendants’ use of unnecessary and excessive force or intrusion against his person.
57. Plaintiffs enjoy a liberty of not being deprived of life without due process of law, as guaranteed by the Fifth Amendment to the U.S. Constitution.
58. Defendants Obama, Holder, Alexander, Vinson, Clapper, Comey, Brennan, FBI, CIA, DOJ and NSA violated Plaintiffs' constitutional rights when they authorized broad and intrusive collections of records of individuals through the PRISM and MUSCULAR surveillance programs, thereby giving Defendants authority to obtain telephone and Internet data for a specified amount of time.
59. By reason of the wrongful conduct of the Defendants, each and every one of them, jointly and severally, Plaintiffs suffered and continue to suffer from severe emotional distress and physical harm, pecuniary and economic damage, loss of services, and loss of society accordingly.
60. These violations are compensable under Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). As a direct and proximate result of the intentional and willful actions of Defendants Obama, Holder, Alexander, Vinson, Clapper, Comey, Brennan, FBI, CIA, DOJ and NSA, Plaintiffs demand judgment be entered against Defendants Obama, Holder, Alexander, Vinson, Clapper, Comey, Brennan, FBI, CIA, DOJ and NSA, each and every one of them, jointly and severally, including an award of compensatory and actual damages, punitive damages, equitable
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relief, reasonable attorneys fees, pre-judgment interest, post-interest and costs, and an award in an amount in excess of $20 billion U.S. dollars, and such other relief as the Court may deem just and proper. Plaintiffs declaratory and injunctive and other equitable relief against all of Defendants as set forth below.
SECOND CLAIM FOR RELIEF First Amendment Violation
Defendants Obama, Holder, Alexander, Vinson, Clapper, Comey, Brennan, FBI, CIA, DOJ and NSA
(Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics)
61. Plaintiffs repeat and reallege all of the previous allegations in paragraphs 1 through 60 of this Third Amended Complaint with the same force and affect, as if fully set forth herein again at length.
62. Defendants Obama, Holder, Alexander, Vinson, Clapper, Comey, Brennan, FBI, CIA, DOJ and NSA, acting in their official capacity and personally, abridged and violated Plaintiffs’ First Amendment right of freedom of speech and association by significantly minimizing and chilling Plaintiffs’ freedom of expression and association.
63. Defendants Obama, Holder, Alexander, Vinson, Clapper, Comey, Brennan, FBI, CIA, DOJ and NSA’s acts chill, if not “kill,” speech by instilling in Plaintiffs and over a hundred million of Americans the fear that their personal and business conversations with other U.S. citizens and foreigners are in effect surveilled, tapped, and illegally surveyed.
64. In addition, Defendants Obama, Holder, Alexander, Vinson, Clapper, Comey, Brennan, FBI, CIA, DOJ and NSA, acting in their official capacity and personally, violated Plaintiffs’ right of freedom of association by making them and others weary and fearful of contacting other persons and entities via cell phones, the Internet, or through social media out of fear of the misuse of government power and retaliation against these persons
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and entities who challenge the gross misuse of government power which amounts to an almost Orwellian police state. 65. By reason of the wrongful conduct of these Defendants, Plaintiffs suffered and continue to suffer from severe emotional distress and physical harm, pecuniary and economic damage, loss of services, and loss of society accordingly. 66. These violations are compensable under Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 67. As a direct and proximate result of the intentional and willful actions of Defendants Obama, Holder, Alexander, Vinson, Clapper, Comey, Brennan, FBI, CIA, DOJ and NSA, Plaintiffs demand that judgment be entered against Defendants Obama, Holder, Alexander, Vinson, Clapper, Comey, Brennan, FBI, CIA, DOJ and NSA, each and every one of them, jointly and severally, including an award of compensatory and actual damages, punitive damages, equitable relief, reasonable attorneys fees, pre-judgment interest, post-interest and costs, and an award in an amount in excess of $20 billion U.S. dollars and such other relief as the Court may deem just and proper.
THIRD CLAIM FOR RELIEF Fourth Amendment Violation Defendants Obama, Holder, Alexander, Vinson, Clapper, Comey, Brennan, FBI, CIA, DOJ and NSA (Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics) 68. Plaintiffs repeat and reallege all of the previous allegations in paragraphs 1 through 67 of this Complaint with the same force and affect, as if fully set forth herein again at length. 69. The Fourth Amendment provides in pertinent part that people have a right to be secure in their persons against unreasonable searches and seizures, that warrants shall not be issued
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but upon probable cause, and that the place of search must be described with particularity. 70. Defendants Obama, Holder, Alexander, Vinson, Clapper, Comey, Brennan, FBI, CIA, DOJ and NSA, acting in their official capacities and personally, violated the Fourth Amendment to the U.S. Constitution when they unreasonably searched and seized and continue to search Plaintiffs’ phone records, e-mails, Internet, social media and electronic communications without reasonable suspicion or probable cause. 71. Defendants Obama, Holder, Alexander, Vinson, Clapper, Comey, Brennan, FBI, CIA, DOJ and NSA, acting in their official capacity and personally, violated the Fourth Amendment to the U.S. Constitution by not describing with particularity the place to be searched or the person or things to be seized. 72. In fact, the blanket and vastly overbroad surveillance program by the NSA, acting on behalf of the federal government and therefore Defendant Obama, as he is the chief executive of the federal government, as well as the other Defendants, does not state with any particularity who and what may be searched. 73. The collection and production of the phone, e-mail, Internet, and social media records allows Defendants including the FBI, CIA, and NSA to easily and indiscriminately build a comprehensive picture and profile of any individual contacted, how and when he or she was contacted, and possibly from where, retrospectively and into the future. 74. By reason of the wrongful conduct of Defendants Obama, Holder, Alexander, Vinson, Clapper, Comey, Brennan, FBI, CIA, DOJ and NSA, Plaintiffs suffered and continue to suffer from severe emotional distress and physical harm, pecuniary and economic damage, loss of services, and loss of society accordingly.
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75. These violations are compensable under Bivens v. VI Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). As a direct and proximate result of the intentional and willful actions of Defendants Obama, Holder, Alexander, Vinson, Clapper, Comey, Brennan, FBI, CIA, DOJ and NSA, Plaintiffs demand judgment be entered against Defendants Obama, Holder, Alexander, Vinson, Clapper, Comey, Brennan, FBI, CIA, DOJ and NSA each and every one of them, jointly and severally, including an award of compensatory and actual damages, punitive damages, equitable relief, reasonable attorneys fees, pre-judgment interest, post-interest and costs, and an award in an amount in excess of $20 billion U.S. dollars and such other relief as the Court may deem just and proper. PRAYER FOR RELIEF
76. Plaintiffs demand that judgment be entered against Defendants, each and every one of them, jointly and severally, for compensatory and actual damages because of Defendants’ illegal actions causing this demonstrable injury to Plaintiffs, punitive damages because of Defendants’ callous, reckless indifference and malicious acts, and attorneys fees and costs in an amount in excess of $20 billion U.S. dollars and such other relief the Court may deem just and proper.
77. Plaintiffs demand declaratory, equitable and injunctive relief for their injuries in the following ways: (1) a cease and desist order to prohibit this type of illegal and criminal activity against Plaintiffs and other U.S. citizens from occurring now and in the future; (2) that all Plaintiffs’ phone, e-mail, Internet, and social media records and communication records, whether telephonic, Internet, social media or electronic, be returned to the provider and expunged from federal government records; and (3) a full
23

disclosure and a complete accounting of what each Defendant as a whole has done and allowed the DOJ, CIA, FBI, and NSA to do; and (4) that this Court retain jurisdiction to implement an effective judicial monitoring mechanism to insure that the Defendants do not egregiously continue, after they are enjoined, to violate the constitutional rights of the Plaintiffs and all Americans in the future, particularly since the Foreign Surveillance Intelligence Court, through judges such as Defendant Vinson, has colluded or acquiesced with Defendants in their unlawful conduct. Defendants cannot, given their documented pattern of lying under oath, deceit and unlawful unconstitutional conduct, be left on their own, without court supervision, to obey the law.
JURY DEMAND Plaintiffs respectfully demand a jury trial on all issues so triable. Dated: September 8, 2015
Respectfully submitted,
/s/ Larry Klayman Larry Klayman, Esq. D.C. Bar No. 334581 2020 Pennsylvania Ave. NW, Suite 345 Washington, DC 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com Attorney for Plaintiffs
24

Exhibit 1

Exhibit 2

http://nyti.ms/1MkYwsD
U.S.
N.S.A. Used Phone Records Program to Seek Iran Operatives
By CHARLIE SAVAGE AUG. 12, 2015
WASHINGTON — The National Security Agency has used its bulk domestic phone records program to search for operatives from the government of Iran and “associated terrorist organizations” — not just Al Qaeda and its allies — according to a document obtained by The New York Times.
The document also shows that a February 2010 order from the Foreign Intelligence Surveillance Court for the program listed AT&T and Sprint as involved in it. A leaked 2013 court order for the program was addressed only to a Verizon subsidiary.
The inclusion of Iran and allied terrorist groups — presumably the Shiite group Hezbollah — and the confirmation of the names of other participating companies add new details to public understanding of the once-secret program. The Bush administration created the program to try to find hidden terrorist cells on domestic soil after the attacks of Sept. 11, 2001, and government officials have justified it by using Al Qaeda as an example.
The disclosure of the new details comes at a time of debates over a proposed agreement to drop sanctions against Iran in exchange for curbs on its nuclear program, and about N.S.A. surveillance and the role of American communications companies.

http://www.nytimes.com/2015/08/13/us/nsa-used-phone-records-program-to-seek-iran-operatives.html

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In June, Congress enacted a law that will ban the systematic collection of domestic phone records after November, and create a replacement program for analyzing links between callers in search of associates of terrorism suspects without the government’s keeping the bulk data.
The document disclosing new information about the program is an August 2010 letter from the Justice Department to Judge John Bates, then the presiding judge of the intelligence court. It was included in about 350 pages of N.S.A. inspector general reports about the program the government provided to The Times late on Tuesday in response to a Freedom of Information Act suit.
The letter, which alerted Judge Bates to an incident in which a courtimposed rule for the program had been violated, contained information the government usually redacts when declassifying such documents: the full name of the intelligence court order in place for the program at the time, which included the listing of Iran and the names of the companies. The release of the uncensored version of the letter was apparently a mistake.
The N.S.A. did not respond to a request for comment.
President George W. Bush originally directed the N.S.A. to begin systematically collecting Americans’ calling records in bulk based on a unilateral assertion of executive power. In 2006, the Justice Department persuaded the intelligence court to bless the program. It began issuing orders to phone companies to turn over their customers’ calling records.
Its orders were based on a secret interpretation of a provision of the U.S.A. Patriot Act, known as Section 215, which permits the F.B.I. to obtain business records deemed “relevant” to a national security investigation.
The theory, accepted by the intelligence court but rejected in a recent appeals court ruling, is that everyone’s records are relevant to investigations hunting for terrorists because analyzing indirect links between callers can, in

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theory, reveal hidden relationships and sleeper cells.
After praising the program as crucial to preventing terrorist attacks, intelligence agency officials now say that it has never thwarted one. But the program’s proponents argue that it is still a useful investigative tool.
The program became public in June 2013 after Edward J. Snowden, a former N.S.A. contractor, disclosed a trove of the agency’s classified documents. The first of those published was the 2013 intelligence court order to a Verizon subsidiary requiring it to turn over all its customers’ calling records.
Although the Obama administration declassified the existence of the bulk phone records program, it has declined to confirm which other phone companies participated in it and which groups it could be used to search for.
The letter does not make clear how often the N.S.A. has used the program to search for Iran or Iranian-linked terrorist organizations. It also says nothing further about the companies listed in the case name.
There has been wide speculation that AT&T, which maintains a large database of calling records, was a participant in the program. And last year, when the government declassified documents about an aborted challenge to the program by a phone company in late 2009, it redacted the firm’s name, but officials said it was Sprint.
The Justice Department letter confirms that both of those companies have been participants.
But the document also contained a surprise. In addition to listing subsidiaries of Verizon Communications, the document lists Verizon Wireless, which was then a partnership with the British firm Vodafone.
The inclusion of Verizon Wireless was striking. In June 2013, The Wall Street Journal reported that Verizon Wireless and T-Mobile had not been part

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of the classified program because of their foreign ownership stakes. In 2014, The Journal, The Washington Post and The Times each reported, citing intelligence officials, that for technical reasons, the program consisted mostly of landline phone records.
However, it is not clear whether the inclusion of Verizon Wireless in the name of the court order means it was turning over customer records after all.
Ed McFadden, a Verizon spokesman, said he was not permitted to say whether that was the case. But he said that as a general matter, it has been the government’s practice to use broad language covering all of Verizon’s entities in headings of such court orders because it has a complex corporate structure, regardless of whether any specific part was required to provide information under that order.
Most of the inspector general reports, unlike the letter, contained redactions. They showed that the inspector general in 2006, shortly after the pre-existing program came under the intelligence court’s rules, called for greater procedural safeguards to make sure that the new rules were followed.
There were no reports included in the documents from 2007 to 2009, when it came to light internally that the N.S.A. had been accessing the call records in a way that systematically violated the court’s rules. In late 2009, the intelligence court stopped letting the N.S.A. access the bulk data for operational purposes while it built a new system and tested it. There were many reports from 2010 and 2011, when the court ordered the inspector general to conduct a series of audits.
One document also reveals a new nugget that fills in a timeline about surveillance: a key date for a companion N.S.A. program that collected records about Americans’ emails and other Internet communications in bulk. The N.S.A. ended that program in 2011 and declassified its existence after the Snowden disclosures.

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In 2009, the N.S.A. realized that there were problems with the Internet records program as well and turned it off. It then later obtained Judge Bates’s permission to turn it back on and expand it.
When the government declassified his ruling permitting the program to resume, the date was redacted. The report says it happened in July 2010.
A version of this article appears in print on August 13, 2015, on page A14 of the New York edition with the headline: N.S.A. Used Phone Data to Seek Iran Operatives.
© 2015 The New York Times Company

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Exhibit 

Exhibit 

NSA Admits to Wrongdoing—What Now?
Andrew Napolitano | Apr. 10, 2014 7:00 am

Last week, Director of National Intelligence

James R. Clapper sent a brief letter to Sen.

Ron Wyden (D-Ore.), a member of the Senate

Intelligence Committee, in which he admitted

that agents of the National Security Agency

(NSA) have been reading innocent Americans'

emails and text messages and listening to

digital recordings of their telephone

conversations that have been stored in NSA

Pete Souza/White House

computers, without warrants obtained pursuant to the Constitution. That the NSA is

doing this is not newsworthy—Edward

Snowden has told the world of this during the past 10 months. What is newsworthy is that the

NSA has admitted this, and those admissions have far-reaching consequences.

Since the Snowden revelations first came to light last June, the NSA has steadfastly denied them. Clapper has denied them. The recently retired head of the NSA, Gen. Keith Alexander, has denied them. Even President Obama has stated repeatedly words to the effect that "no one is reading your emails or listening to your phone calls."

The official NSA line on this has been that the Foreign Intelligence Surveillance Act (FISA) court has issued general warrants for huge amounts of metadata only, but not content. Metadata consists of identifying markers on emails, text messages, and telephone calls. These markers usually identify the computer from which an email or text was sent or received, and the time and date of the transmission, as well as the location of each computer. Telephone metadata is similar. It consists of the telephone numbers used by the callers, the time, date, and duration of the call, and the location of each telephone used in the call.

American telecommunications and Internet service providers have given this information to the NSA pursuant to warrants issued by secret FISA court judges. These warrants are profoundly unconstitutional, as they constitute general warrants. General warrants are not

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obtained by presenting probable cause of crime to judges and identifying the person from whom data is to be seized, as the Constitution requires. Rather, general warrants authorize a government agent to obtain whatever he wants from whomever he wants it.

These general warrants came about through a circuitous route of presidential, congressional, and judicial infidelity to the Constitution during the past 35 years. The standard that the government must meet to obtain a warrant from a FISA court judge repeatedly has been lessened from the constitutional requirement of probable cause of crime, to probable cause of being a foreign agent, to probable cause of being a foreign person, to probable cause of talking to a foreign person. From this last category, it was a short jump for NSA lawyers to persuade FISA court judges that they should sign general warrants for all communications of everyone in America because the NSA was not accessing the content of these communications; it was merely storing metadata and then using algorithms to determine who was talking to whom.

This was all done in secret—so secret that the president would lie about it; so secret that Congress, which supposedly authorized it, was unaware of it; and so secret that the FISA court judges themselves do not have access to their own court records (only the NSA does).

It was to further this public facade that Clapper lied to the Senate Intelligence Committee last year when he replied to a question from Sen. Wyden about whether the NSA was collecting massive amounts of data on hundreds of millions of Americans by saying, "No" and then adding, "Not wittingly." The stated caveat in the NSA facade was a claim that if its agents wanted to review the content of any data the NSA was storing, they identified that data and sought a warrant for it.

This second round of warrants is as unconstitutional as the first round because these warrants, too, are based on NSA whims, not probable cause of crime. Yet, it is this second round of warrants that Clapper's letter revealed did not always exist.

Snowden, in an act of great personal sacrifice and historic moral courage, directly refuted Clapper by telling reporters that the NSA possessed not just metadata but also content— meaning the actual emails, text messages, and recordings of telephone calls. He later revealed that the NSA also has the content of the telephone bills, bank statements, utility bills, and credit card bills of everyone in America.

In his letter to Wyden last week, Clapper not only implicitly acknowledged that Snowden was correct all along, but also that he, Clapper, lied to and materially misled the Senate Intelligence Committee, and that the NSA is in fact reading emails and listening to phone calls without obtaining the second warrant it has been claiming it obtains.

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One wonders whether Obama was duped by Clapper when he denied all this, or whether he just lied to the American people as he has done in the past.
One also wonders how the government could do all this with a straight face. This is the same government that unsuccessfully prosecuted former New York Yankees pitcher Roger Clemens twice for lying to a congressional committee about the contents of his urine. Shouldn't we expect that Clapper be prosecuted for lying to a congressional committee about the most massive government plot in U.S. history to violate the Fourth Amendment? Don't hold your breath; the president will protect his man.
Yet, Congress could address this independent of a president who declines to prosecute his fellow liars. Congress could impeach Clapper, and the president would be powerless to prevent that. If Congress does that, it would be a great step forward for the rule of law and fidelity to the Constitution. If Congress does nothing, we can safely conclude that it is complicit in these constitutional violations.
If Congress will not impeach an officer of the government when it itself is the victim of his crimes because it fears the political consequences, does it still believe in the Constitution?

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 Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 1 of 35

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LARRY KLAYMAN, et at.,

)

)

)

)

Plaintiffs,

)

)

v.

)

)

NATIONAL SECURITY AGENCY, )

et at.,

)

)

)

)

)

Defendants.

)

NOV 2 1 2017
Clerk, U.S. District & Bankruptcy Courts for the District of Columbia
Civil Action Nos. 13-851 (RJL) 13-881 (RJL)

'Sf-
MEMORANDUM OPINION NovembefZL_, 2017 [Dkts. ##178, 123]

These two actions are yet another chapter in a multi-year saga, during which our

three co-equal branches of government have struggled to strike the appropriate balance

between protecting the citizens of our Nation and the individual liberties of those very

citizens. Although the Judiciary will surely be called upon in the future to ensure that the

balance struck is constitutionally sound, this Court's role in assessing the Government's

conduct in these two cases ends today.

Plaintiffs filed these two related actions, Klayman v. Obama, No. 13-cv-851

(D.D.C. filed June 6, 2013) ("Klayman F'), and Klayman v. Obama, No. 13-cv-881

1

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 2 of 35
(D.D.C. filed June 12, 2013) ("Klayman IF'), in June of2013, 1 challenging the constitutionality and statutory authorization of certain intelligence-gathering practices of the United States Government. Plaintiffs are six individuals and one law firm, who bring these suits as U.S. citizens or entities, and who are all subscribers, customers, or users of certain telecommunications and Internet service providers that allegedly participated in these Government surveillance programs. See Klayman I, 4th Am. Compl. ~~ 7-18 [Dkt. #145-1]; Klayman II, 3d Am. Compl. ~~ 4-23 [Dkt. #112]. In the operative complaints, plaintiffs challenge the Government's wholesale collection and analysis of the phone and Internet metadata of U.S. citizens. Plaintiffs allege that these surveillance programs violated-and continue to violate-their First, Fourth, and Fifth Amendment rights. See Klayman I, 4th Am. Compl. ~~ 49-69; Klayman II, 3d Am. Compl. ~~ 55-75.
In the actions as filed, defendants are several federal agencies and departments, executive and judicial officials, and telecommunications and Internet service providers and their executive officers.2 See Klayman I, 4th Am. Compl. ~~ 19-25; Klayman II, 3d Am. Compl. ~~ 24-35. To remedy defendants' alleged constitutional infractions, plaintiffs seek three distinct forms of declaratory and injunctive relief: ( 1) an injunction against future bulk collection of metadata about their calls; (2) an injunction against NSA
1 Plaintiff Larry Klayman has also filed two additional related cases, Klayman v. Obama, No. 14-cv-92 (D.D.C. filed Jan. 23, 2014), and Montgomery v. Corney, No. 17-cv-1074 (D.D.C. filed June 5, 2017). This memorandum opinion, however, addresses only Klayman I and Klayman 11. 2 The individual defendants in both cases have since been dismissed. See Klayman I, 9/19/16 Mem. Order [Dkt. #175]; Klayman II, 9119116 Mem. Order [Dkt. #120]. And while the original complaints in these actions named as defendants several telecommunications and Internet service providers and their executive officials, the newest versions of the complaints in both actions omit these defendants. Compare Klayman I, Com pl. ~ 9, and Klayman 11, Compl. ~~ 20-42, with Klayman I, 4th Am. Compl. ~~ 19-24, and Klayman II, 3d Am. Compl. ~~ 13-18.
2

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 3 of 35
queries of plaintiffs' metadata that may have been collected under the program; and (3) an accounting, expungement from federal Government records, and return of any collected data pertaining to plaintiffs' communications. See Klayman I, 4th Am. Compl. ~ 71; Klayman II, 3d Am. Compl. ~ 77. They also seek a multi-billion dollar award for compensatory, actual, and punitive damages and for attorneys' fees and costs. Klayman I, 4th Am. Compl. ~ 70; Klayman II, 3d Am. Compl. ~ 76.
These cases are before the Court on defendants' consolidated Motion to Dismiss. See Klayman I [Dkt. #178]; Klayman II [Dkt. #123]. Upon consideration of the parties' submissions, and the entire record herein, defendants' motion is GRANTED and plaintiffs' complaints are DISMISSED with prejudice.
BACKGROUND
Because the controversy surrounding the Government's challenged conduct in these cases has featured prominently in the news media over the last four years, familiarity with this case is likely. 3 I nonetheless will provide a brief background of these two related suits. A. The Section 215 Bulk Telephony Metadata Program
Section 215 of the USA PATRIOT Act, which governs access to certain "business records," authorizes the Government to apply to the Foreign Intelligence Surveillance Court ("FISC") for an order requiring the "production of any tangible things ... for an
3 See, e.g., Ellen Nakashima & Ann E. Marimow, Judge Says NSA 's Call Tracking is Probably Illegal, WASI-l. POST, Dec. 17,2013, AI; Charlie Savage, Judge Curbs NS.A . Data Collection, N.Y. TIMES, Nov. 10, 2015, at A 17; see also infra p. 12 & n.9.
3

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 4 of 35
investigation to protect against," among other things, "international terrorism." Pub. L. No.l07-56, 115 Stat.272,287(200l)(codifiedat50U.S.C. § 186l(a)(l)). InMay 2006- after the Government sought and received authorization from judges of the FISC-the NSA began the bulk telephony metadata program that plaintiffs challenge today. See Klayman I, DecI. of Acting Assistant Dir. Robert J. Holley, FBI, ~ 6 [Dkt. #25-5]; Klayman I, DecI. of Teresa H. Shea, Signals Intelligence Dir., NSA, ~ 13 [Dkt. #25-4]. As part of this program, the NSA conducted daily bulk collection, storage, and analysis of telephony metadata. See id. From May 2006 until the termination of the program in November 2015, the Government obtained FISC orders directing certain telecommunications service providers to produce, in bulk, call-detail records, which contained metadata about telephone calls, including the time and duration of a call and the dialing and receiving numbers. Klayman I, Decl. of Wayne Murphy, Dir. of Operations, NSA, ~~ 6-7 ("Murphy Decl.") [Dkt. #178-2]; Murphy Decl. Ex. A ("Aug. 27, 2015 FISC Order"). The FISC orders expressly excluded the content of the call as well as "the name, address, or financial information of a [telephone] subscriber or customer." See Aug. 27, 2015 FISC Order at 3 n.l. In total, the FISC authorized the program forty-three times, under orders issued by at least nineteen different FISC judges. See Murphy Decl. ~ 7.
Under the program, once the data was collected, the Government created a repository where data could be accessed and queried by NSA analysts for the purpose of detecting and preventing terrorist attacks. Id. ~~ 6, 8-9. Among other minimization
4

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 5 of 35
procedures4 designed to protect privacy interests of U.S. citizens, FISC orders authorizing the program required that metadata obtained through the program be destroyed within five years of collection. /d. ~ 11. Beginning in March 20 14, however, the FISC authorized the NSA to delay the destruction of metadata that had passed the five-year mark. /d. This retention was authorized as a means of allowing the Government to comply with its obligation to preserve potentially relevant evidence under orders issued in two civil cases involving challenges to the legality of the Section 215 program. See Jewel v. Nat 'l Sec. Agency; No. 4:08-cv-4373-JSW (N.D. Cal. filed Sept. 18, 2008); First Unitarian Church ofL.A. v. Nat'l Sec. Agency, No. 4:13-cv-3287-JSW (N.D. Cal. filed July 16, 2013); Murphy Dec!.~ 11. B. The Bulk Internet-Metadata Program Under FISA's Pen-Trap Provision
Although the surveillance scheme conducted pursuant to FISA' s pen-trap provision features less prominently in this litigation than the Section 215 program, a brief history of that program would likely be helpful at this point.
From July 2004 until December 2011, the NSA also engaged in the bulk collection of Internet metadata, authorized by FISC orders issued pursuant to Section 402 of FISA, otherwise known as FISA's pen-register and trap-and-trace provision. See 50 U.S.C. § 1842; Murphy Decl. ~~ 19-20. Under section 402, the Government collected data from the "to" and "from" lines of e-mails, and the date and time the e-mails were sent, but not
4 Section 215 requires the Government to comply with FlSC-approved procedures that "minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need ... to obtain, produce, and disseminate foreign intelligence information." 50 U.S.C. § 186l(b)(2)(8), (c)(!), (g)(2)(A), (h).
5

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 6 of 35
thee-mails' content or the "subject" line. See Murphy Decl. tj)tj) 19-20. Like the Section 215 program, the Section 402 program allowed the Government to query and analyze the bulk data, with the goal of obtaining foreign intelligence information. Id. tj) 20. Critically, however, the FISC orders required compliance with minimization procedures that limited the retention of the metadata and required "reasonable, articulable suspicion" that the selection terms used in queries were, in fact, associated with foreign terrorist organizations. ld. The Section 402 program was ultimately discontinued because it did not meet the Government's operational expectations, and on December 7, 2011, the NSA destroyed all bulk Internet metadata collected as part of the program. I d. tj)tj) 20-21. Importantly, the Government has never "disclosed the scope on which the [Section 402] program operated or any of the identities of the providers that received orders from the FISC." ld. tj) 20. C. Targeted PRISM Collection of Communications Content Under FISA Section
702 As with the surveillance program pursuant to FISA Section 402, a brief overview
of the PRISM program is in order. In 2008, Congress added a new Section 702 to FISA to "supplement[] pre-existing
FISA authority by creating a new framework under which the Government may seek the FISC's authorization of certain foreign intelligence surveillance targeting the communications of non-U.S. persons located abroad." Clapper v. Amnesty lnt'l USA,
6

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 7 of 35
568 U.S. 398, 404 (20 13). Under Section 702, upon the FISC's approvaP of a "certification" by the Government, the Attorney General and Director of National Intelligence may jointly authorize the "targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information" for a period of up to one year. 50 U.S.C. § 188la(a), (g); Murphy Decl. ,-r 23. The text of Section 702, however, expressly prohibits the Government from intentionally targeting a U.S. person overseas or any person known to be in the United States. See 50 U.S.C. § 188la(b); Murphy Decl. ,-r,-r 22-23. Section 702 also requires the Government to conduct the data acquisition with the assistance of an electronic communication service provider, and the Government must do so "in a manner consistent with the [F]ourth [A]mendment." 50 U.S.C. § 188Ia(b)(5), (g)(2)(A)(vi), (b); Murphy Decl. ,-r,-r 22-23.
Unlike the surveillance programs under Section 215 ofthe USA PATRIOT Act or Section 402 of FISA, Section 702 of FISA is a targeted content-collection program, not a bulk collection program. See Murphy Decl. ,-r,-r 23, 26. As such, PRISM collection can only target non-U.S. persons located abroad who possess or are likely to receive or communicate foreign intelligence information authorized for acquisition. !d. ,-r,-r 22-23.

5 Before the FISC approves a Section 702 certification, it must find that: (I) the Government's targeting

procedures reasonably

are "reasonably designed" to ensure that believed to be located outside the United

any acquisition of data is limited to "persons States" and will not intentionally acquire

communications known at the time of acquisition to be (i)(2)(B)(i); (2) the Government's certification contains

purely domestic, 50 U.S .C. § 188la(b), all statutorily required elements, including,

inter

alia an attestation that a significant purpose of the acquisitions is to obtain foreign-intelligence

information, id. § 1881 a(g)(2)(A)(v), (i)(2)(A); (3) the Government's minimization procedures meet

FISA's requirements, id. § 188la(i)(2)(C); and (4) the Government's targeting and minimization

procedures are consistent with both FISA and the Fourth Amendment, id. § 1881a(i)(3)(A).

7

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 8 of 35
The identities of persons targeted under this program are classified, as are the identities of the electronic communications service providers that assist in the acquisition. !d. ~ 27. D. The Initial Litigation
Shortly after Edward Snowden's disclosure of classified material-which revealed some of the NSA's surveillance programs for the first time6-plaintiffs filed suit in both of these cases. See Klayman I, Compl., June 6, 2013 [Dkt. #1]; Klayman II, Compl., June 12, 2013 [Dkt. #1]. As relevant here, Snowden's "leaks" revealed, among other things, that a FISC order dated April25, 2013 compelled Verizon Business Network Services (" VBNS") to produce to the NSA on "an ongoing daily basis ... all call detail records or 'telephony metadata' created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls." Klayman I, Defs.' Opp'n Pis.' Mots. Prelim. Inj. Ex. F ("Apr. 25, 2013 FISC Order") [Dkt. #25-7]; see also Klayman I, Defs.' Opp'n Pis.' Mots. Prelim. Inj. 21 n.9 [Dkt. #25] ("The Government has acknowledged the authenticity of an unlawfully disclosed Secondary Order of the FISC dated April 25, 2013, which listed Verizon Business Network Services, Inc. (VBNS) as a recipient of that order at that time."). As
6 See, e. g., Glenn Greenwald, NSA Collecting Phone Records ofMillions of Verizon Customers Daily, THE GUARDIAN (LONDON) (June 5, 20 13), https://www.theguardian.com/world/20 13/jun/06/nsa-phonerecords-verizon-court-order.
8

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 9 of 35
subscribers of Verizon, plaintiffs alleged that their communications were likely among those collected through the Government's program.7
In general, plaintiffs' original complaints alleged that the Government uses the information collected through the surveillance programs I outlined above to create comprehensive profiles on U.S. citizens, including intimate details about their lives and personal associations. See, e.g., Klayman II, 3d Am. Compl. ~~ 1-3. According to plaintiffs, the NSA' s use of their personal information restricts their "abilities to communicate via telephone, e-mail, social media and otherwise on the Internet, out of

7 The parties to both cases largely overlap, but there are some differences. Larry Klayman ("Klayman"),

Charles and Associates,

Mary Ann Strange ("the Stranges"), P.C. (collectively referred to as "the

and J.J. Little ("Little") and Little Plaintiffs"), are parties

his to

law both

firm, J.J. Little & complaints. See

Klayman/, 4th Am. Compl. ~~ 9-18; Klayman II, 3d Am. Compl. ~~ 11-19,22. Klayman, an attorney, is

no stranger to the couttroom, having served as a former prosecutor at the U.S. Department of Justice.

Klayman!, 4th Am. Campi. p. 2. He is also the chairman and general counsel of Freedom Watch, a

public interest and advocacy organization. !d. ~ 9. Klayman alleges that be has been a subscriber and

user ofVerizon Wireless ("Verizon") at all material times, and that because of his public criticism of the

Obama administration and his international communications, he believes his communications have

"inevitably" been accessed by the Government. !d. ~ 9- I6.

The Stranges are the father and stepmother of a Navy SEAL who was killed in Afghanistan in

20 II. !d. ~ 17. Like Klayman , the Stranges are subscribers of Verizon, and they believe defendants have

accessed their phone, Internet, and computer records because they have been vocal about their criticism of

President Obama, his administration, and the U.S. military. !d. Little is a criminal defense lawyer who

has litigated against the Government, which he believes places him "in the line of tire of Government

surveillance by the Government Defendants." !d. ~ I 8. Little alleges that surveillance of him and his law

firm implicates "breaches of attorney-client privilege and work product." !d. Little and his firm are

subscribers ofVerizon The complaint

Business Network Services ("VBNS") and Verizon. in Klayman II adds Michael Ferrari ("Ferrari") and Matt

Garrison

("Garrison")

as

additional parties. Klayman II, 3d Am. Compl. ~~ 20-21. Ferrari and Garrison are private investigators

who claim that their communications were certainly monitored by defendants because they frequently

engage in e-mail and telephone communications with foreign countries. !d. Ferrari alleges that he is a

subscriber, consumer and user of Sprint, Google/Grnail, Yahoo!, and Apple, while Garrison alleges that

he is a consumer and user of Facebook, Google, YouTube, and Microsoft products. !d.

9

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 10 of 35

fear that their confidential, private, and often privileged communications are being and will be overheard by the NSA's surveillance program." !d. 4J 49.
In the most recent versions of the complaints in these two consolidated cases, plaintiffs challenge the NSA' s bulk collection of telephony metadata under Section 215, the Section 402 program, the PRISM program, and another program plaintiffs refer to as MUSCULAR. 8 See Klayman I, 4th Am. Compl. 4J4J 44, 46, 51, 54, 59-60, 67; Klayman II, 3d Am. Compl. 4J4J 10, 58, 63-64, 70, 73. In both cases, plaintiffs claim that the challenged surveillance programs violated-and continue to violate-their First, Fourth, and Fifth Amendment rights. Klayman I, 4th Am. Compl. 4J4J 51-53, 58-60, 66-67; Klayman II, 3d Am. Compl. 4J4J 57-58, 62-64, 70-72. With respect to their First Amendment rights, plaintiffs insist that defendants' actions "chill, if not 'kill,' speech by instilling in Plaintiffs and over a hundred million of [sic] Americans the fear that their personal and business conversations with other U.S. citizens and foreigners are in effect tapped and illegally surveyed." Klayman I, 4th Am. Compl. 4J 59; see also Klayman II, 3d Am. Compl. 4J 63. Plaintiffs further allege that their freedoms of expression and association were chilled because they refrained from contacting other people via cell

8 The record contains little information on the so-called MUSCULAR program, but in Klayman II,

plaintiffs allege that defendants "authorized broad and intrusive collections of records of individuals

through the PRISM and MUSCULAR surveillance programs, thereby giving obtain telephone and Internet data for a specified amount oftime." Klayman

Detemdants authority to II, 3d Am. Compl. ~I 58.

They also allege that "through a government program enlitled 'MUSCULAR, ' the FBI, CIA, and NSA

have been intercepting Google and Yahoo! as

information o it travels over

f the entirely of American fiber optic cable from on

citizenry from Internet companies e data center to anolher." Id. ~ 8.

such as Because

plaintiffs treat the MUSCULAR program together with the PRISM program, 1 will do so as well. See id.

~54 ("The Government Defendants, through the use of the continuing PRISM and MUSCULAR

programs, illegally and unconstitutionally surveilled each of the Plaintiffs' telephone, Internet and social

media communications.").

10

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 11 of 35
phone out of fear of retaliation by the Government defendants. Klayman I, 4th Am. Compl. ~ 60; Klayman II, 3d Am. Compl. ~ 64. To support their claim of a Fourth Amendment violation, plaintiffs allege that the challenged surveillance programs constituted unreasonable searches and seizures of their phone records without reasonable suspicion, particularity, or probable cause. Klayman I, 4th Am. Compl. ~~51-53; Klayman II, 3d Am. Compl. ~~ 70-72. The allegations supporting plaintiffs' Fifth Amendment claim are relatively sparse, but plaintiffs appear to suggest that they have a liberty interest-guaranteed by the Fifth Amendment-in being free from intrusion into their phone records. Klayman I, 4th Am. Compl. ~~ 65-67; Klayman II, 3d Am. Compl.
~~56-58.
As a result of these alleged violations, plaintiffs assert that they have suffered "severe emotional distress and physical harm, pecuniary and economic damage, loss of services, and loss of society." Klayman I, 4th Am. Compl. ~~55, 61, 68; Klayman II, 3d Am. Compl. ~~59, 65, 74. To remedy these harms, plaintiffs seek compensatory and punitive damages, and attorneys' fees and costs, in excess of $12 billion in Klayman I, and in excess of $20 billion in Klayman II. Klayman I, 4th Am. Compl. ~ 70; Klayman II, 3d Am. Compl. ~ 76. Both complaints also request injunctive reliefthat (1) enjoins the challenged surveillance activities; and (2) requires the Government to prepare an accounting of, expunge from Government records, and return to the service providers any
11

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 12 of 35
data collected that pertains to plaintiffs' communications. Klayman I, 4th Am. Compl. ~ 71; Klayman II, 3d Am. Compl. ~ 77.
In October 20 13, four months after filing their complaints, plaintiffs moved for preliminary injunctions in both cases. See Klayman I, Pis.' Mot. Prelim. Inj. [Dkt. #13]; Klayman II, Pis.' Mot. Prelim. Inj. [Dkt. #10]. And in December ofthat year, I enjoined the Government from further collecting plaintiffs' call records. Klayman v. Obama, 957 F. Supp. 2d 1, 43-44 (D.D.C. 2013), vacated and remanded, 800 F.3d 559 (D.C. Cir. 20 15) (per curiam). In so ruling, I held that plaintiffs Klayman and Charles Strange had standing to challenge both the bulk collection of metadata under these programs and the analysis of that data through the NSA's electronic querying process. !d. at 8, 26-29. On the merits, I found it significantly likely that plaintiffs would be able to show that these programs violated their reasonable expectation of privacy and therefore constituted a Fourth Amendment search, and that the searches were unreasonable. !d. at 30-42. But in light of the "significant national security interests at stake," I voluntarily stayed my order pending the Government's appeal. !d. at 43. To say the least, that opinion unleashed a fire storm of press and public discussion. 9 E. The USA FREEDOM Act
While my December 2013 injunction in Klayman I was stayed pending appeal, the other branches began to grapple with the significant constitutional questions raised by the
9 See, e.g., Spencer Ackerman, NSA Collection ofPhone Metadata Likely in Breach ofFourth Amendment - Read the Judge's Ruling, THE GUARDIAN (LONDON) (Dec. 16, 20 13), bttps ://www.theguardian.com/ world/ interactive/20 13/dec/16/nsa-collection-phone-metadata-district-court-ruling; Devlin Barrett, Judge Deals Blow to NSA Phone Spying, WALL ST. J. (Dec. 16, 20 13), https://www.wsj.com/articles/nsa-phone-
12

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 13 of 35
NSA's surveillance programs, and they accordingly took steps to weigh in on the issue. In early 2014, President Barack Obama voiced many of the same concerns articulated in my December 20 13 opinion. See Remarks on United States Signals Intelligence and Electronic Surveillance Programs, 2014 DAILY COMP. PRES. Doc. 30,2 (Jan. 17, 2014) ("[I]n our rush to respond to a very real and novel set of threats, the risk of Government overreach-the possibility that we lose some of our core liberties in pursuit of securityalso became more pronounced."). And in March of that year, he announced that he would seek legislation to replace the Section 215 program with "a mechanism to preserve the capabilities we need without the Government holding this bulk metadata," in order to "give the public greater confidence that their privacy is appropriately protected." Presidential Statement on the National Security Agency's Section 215 Bulk Telephony Metadata Program, 2014 DAILY COMP. PRES. Doc. 213, 1 (Mar. 27, 2014).
spyi ng-8216almost-ce rtainly8217-unconstitutional-judge-says- 13 87222634· Ma-x Ehrenfre und, Snowden Cla ims NSA Surveillance 'Collapsing,' W ASI-L Po T (Dec. 17, 2013) https://www.washingtonpost.com/ world/****-security/snowden-claims-nsa-surveillance-collapsing/20 13/ 12/ 1717f8f577c-6726-lle3-ae5622de072140a2_story.html?utm_term=.03094e93ade7; Josh Gerstein, Judge: NSA Program Likely Unconstitutional, POUTI CO (Dec. 17, 20 13), https://www. politico.com/story/20 13/12/national-securityagency-phones-judge-1 01203; David Ingram & Mark Hosenball, US. Judge Says Phone Surveillance Program Likely Unlawful, CHICAGO TRIBUNE (Dec. 16, 2013 ), http://articles.chicagotribune.com/20 1312-16/news/sns-rt-us-usa-sec urity-ruling-20 13 1216_l_phone-surveiHance-program-metadata-collectionprogram-u-s-surveillance-court; Kevin Johnson & Richard Wo lf, Federal Judge Rules Against NSA Snpsay-isnugr,vUeiSllAanTcOe-DfoAuYrt(hD-aemc.e1n6d,m2e0n1t3/4),0h4t1tp9s9:5///w; Cwhwa.ruliseatSoadvaayg.ceo, Jmu/dstgoeryQ/nueewstsio/nnastiLoeng/a20li1ty31o1fN2/.1S6.A/ju. dPgheo-ne Records, N.Y. TIMES (Dec. 16, 2013), http://www.nytimes.com/2013/12/17/us/politics/federai-Judgerules-against-nsa-phone-data-program.html; David G. Savage Judge Says NSA Phone Dqta Collection Is Probably Unconslilutional, L .A. TIMES (Dec. I6, 20 13), http://www.latimes.com/nation/la-na-nsalawsuit-20131 217- tory.html; Alexandra Sifferlin, Judge Says NSA Program Likely Unconstitutional, TIME (Dec. 16, 2013), http://swampland.time.com/20 13/ 12/16/judge-says-nsa-program-likelyunconstitutional/.
13

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 14 of 35
Congress, too, responded in kind. On June 2, 2015, it enacted the USA FREEDOM Act, Pub. L. No. 114-23, 129 Stat. 268, which prohibits the Government from obtaining telephony metadata in bulk. See id. § 103, 129 Stat. at 272. The President quickly signed the USA FREEDOM Act into law, making the bulk collection ofmetadata unlawful, effective November 29, 2015. See id. §§ 103, 109, 129 Stat. at 272, 276. Importantly, the USA FREEDOM Act amends both Section 402 ofFISA and Section 215 of the USA PATRIOT Act to prevent bulk collection by the Government. I d. § 101, 129 Stat. at 269 ("Additional Requirements for Call Detail Records"); id. § 103, 129 Stat. at 272 ("Prohibition on Bulk Collection of Tangible Things"); id. § 201, 129 Stat. at 277 ("Prohibition on Bulk Collection"); see 50 U.S.C. §§ 186l(b)(2), 1842(c).
In place of bulk collection under Section 215, the USA FREEDOM Act requires targeted searches, whereby the Government must submit an application to the FISC identifying "a specific selection term," such as a telephone number, "to be used as the basis for production" of the call-detail records sought. See USA FREEDOM Act §§ 10l(a)(3)(C)(i), 103(a), 129 Stat. 270, 272; see Murphy Decl. ~ 14. As part ofthe NSA's transition to this new targeted collection program, the Government sought authority for-and the FISC approved-the following minimization procedures: (1) the Government would retain certain data in order to comply with its evidence preservation obligations; and (2) the Government would retain a three-month period of technical access, ending on February 29, 2016, so that NSA technical personnel could verify the
14

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 15 of 35
accuracy of productions under the new targeted system. See Murphy Decl. ~ 16; Murphy Dec!. Ex. B ("Nov. 24, 2015 FISC Order"). F. The Litigation on Remand
Although I enjoined the NSA's surveillance program in December 2013, the Court of Appeals did not issue its opinion until August 28, 2015. When it finally did, it vacated my preliminary injunction on the ground that plaintiffs, as subscribers of Verizon, rather than VBNS-the sole provider the Government has acknowledged as participating in the surveillance program-had not shown a substantial likelihood of standing to pursue their claims. See Obama v. Klayman, 800 F.3d 559, 564 (D.C . Cir. 2015) (Brown, J.); id. at 565, 568-69 (Williams, J.). As such, the Circuit did not address my ruling that the surveillance program likely constituted an unconstitutional search under the Fourth Amendment.
With little time left before the intermediate bulk collection program was set to lapse, plaintiffs moved for-and I granted-leave to file amended complaints to address the standing issue. See Klayman I, Min. Entry, Sept. 16, 2015; Klayman II, Min. Entry, Feb. 11, 2016. As relevant here, these complaints added the Little Plaintiffs-both of whom allege they have been subscribers to VBNS at all material times-as parties to both actions. See Klayman I, 4th Am. Compl. ~ 18; Klayman II, 3d Am. Campi. ~ 22. Plaintiffs also bolstered the complaint in Klayman I by pleading additional facts to support their allegation that Verizon was a participating telecommunications service provider in the challenged surveillance programs. Klayman I, 4th Am. Compl. ~~ 47-48.
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Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 16 of 35
With the Section 215 bulk-collection program set to expire on November 29, 2015, I warned plaintiffs at a status conference on September 2, 2015 that, if they wanted to litigate their Fourth Amendment claims, it was "time to move" because "the clock is running. And there isn't much time ...." Klayman I, Status Hr'g Tr. 23:6, 15:5-6, Sept. 2, 2015 [Dkt. #143]. Accordingly, on September 21, 2015, plaintiffs renewed their motion for a preliminary injunction against the programs, and also sought to prohibit the Government from destroying "any records relating to the Plaintiffs until this case is tried and all appeals are heard, and only then to purge them from government retention." Klayman I, Pis.' Renewed Mot. Prelim. Inj ., Proposed Order ("Pis.' Proposed Order") [Dkt. #149-3]. On November 9, 2015, I granted the Little Plaintiffs a preliminary injunction barring bulk collection of records about their calls under Section 215, but I denied relief to the other plaintiffs. Klayman v. Obama, 142 F. Supp. 3d 172, 178 (D.D.C. 20 15). This time, however, I did not stay my injunction. !d. at 198. Not surprisingly, the Government immediately appealed, and our Circuit granted their request for a stay of my injunction pending appeal. Order, Klayman v. Obama, No. 15-5307 (D.C. Cir. Nov. 16, 2015), 2015 WL 9010330.
Less than ten days later, the USA FREEDOM Act went into effect, and the Government accordingly moved to vacate the injunction and dismiss their appeal as moot. In an unpublished order dated April 4, 2016, the Court of Appeals granted the Government's motion, vacating the injunction and dismissing the appeal as moot. See Order, Klayman v. Obama, No. 15-5307 (D.C. Cir. Apr. 4, 2016), Doc. No. 1606954. Once again on remand to this Court, the individual-capacity defendants moved to dismiss
16

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 17 of 35
the claims against them for plaintiffs' failure to effect service, and I granted their motions on September 20, 2016. Klayman I, 9/20116 Mem. Order [Dkt. #175]; Klayman II, 9/20/ 16 Mem. Order [Dkt. #120].
Because plaintiffs' complaints have been amended several times since defendants' motions for partial dismissal were filed in January of 2014, I ordered defendants to brief a renewed dispositive motion. See Klayman I, 9/20/16 Mem. Order at 4-5. The Government accordingly filed a consolidated motion to dismiss both Klayman I and Klayman II for lack ofjurisdiction. The Government's motion is now ripe for my decision.
STANDARD OF REVIEW Article III ofthe Constitution limits the judicial power ofthe United States to adjudicating "cases" and "controversies." Valley Forge Christian Call. v. Ams. United for Separation ofChurch & State, Inc., 454 U.S. 464, 471 (1982). "Three inter-related judicial doctrines- standing, mootness, and ripeness, ensure that federal courts assert jurisdiction only over ' [c]ases' and ' [c]ontroversies" ' consistent with their authority under Article III. Williams v. Lew, 77 F. Supp. 3d 129, 132 (D.D.C. 2015) (internal quotation marks omitted). Importantly here, the Supreme Court has noted that the standing inquiry is "especially rigorous when reaching the merits of the dispute would force [the judiciary] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional." Raines v. Byrd, 521 U.S. 811, 819-20 ( 1997). This is, of course, because "[r]elaxation of standing requirements is directly related to the expansion of judicial power." United States v. Richardson, 418 U.S. 166,
17

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 18 of 35
18 8 (1974) (Powell, J., concurring). And regardless of whether a plaintiff had standing to sue when he initially filed his complaint, the doctrine of mootness bars a federal court from adjudicating that plaintiffs claim if"events have so transpired that the [court's] decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future." Chamber a/Commerce v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011) (quoting Clarke v. United States, 915 F.2d 699,701 (D.C. Cir. 1990)).
Here, defendants have filed a motion to dismiss pursuant to Rule 12(b)(l) of the Federal Rules of Civil Procedure, and thus they seek dismissal of plaintiffs' complaints based on lack of subject matter jurisdiction. Under Rule 12(b)(l), "[a] defendant may make a factual attack on the Court's subject matter jurisdiction ... as opposed to a facial attack based solely on the complaint." Finca Santa Elena, Inc. v. US. Army Corps of Eng'rs, 873 F. Supp. 2d 363,368 (D.D.C. 2012). When a defendant makes a factual attack on jurisdiction-as defendants do here-"no presumption of truthfulness applies to the factual allegations" in the plaintiffs complaint. Richards v. Duke Univ., 480 F. Supp. 2d 222, 232 (D.D.C. 2007) (quoting Ohio Nat'! Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). I therefore am "not obliged to accept [plaintiffs'] allegations as true and may examine evidence to the contrary and reach [my] own conclusion on the matter." Finca Santa Elena, Inc., 873 F. Supp. 2d at 368 (quoting 5B Charles Alan Wright & Arthur Miller, Federal Practice and Procedure§ 1350 (3d ed. 2004)).
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Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 19 of 35
ANALYSIS A. Plaintiffs' Challenge to Section 215 Surveillance
1. Plaintiffs' Claims for Declaratory and Prospective Injunctive Relief Defendants argue that the statutorily mandated cessation of the Section 215 bulk collection program has mooted plaintiffs' claims for declaratory and prospective injunctive relief. See Klayman I, Defs.' Reply Supp. Mot. Dismiss Klayman I & Klayman II for Lack ofSubj. Matter Jurisdiction 3 [Dkt. #184]. Because the Government's challenged conduct is now prohibited-both by federal statute and by an order of the FISC-I agree with defendants that plaintiffs' challenge to the Section 215 program no longer presents an Article III case or controversy. As discussed above, the USA FREEDOM Act-which was largely motivated by the same concerns I articulated in my December 2013 opinion in this case10-expressly prohibits the bulk collection of telephony metadata under Section 215. See USA FREEDOM Act§§ 103, 109, 129 Stat. at 272, 276; 50 U.S.C. § 1861(c)(3). Effective November 29, 2015, the bulk collection of telephony metadata authorized under Section 21 5 was replaced by a process for targeted production of call-detail records by telecommunications service providers, pursuant to FISC order. USA FREEDOM Act § 101, 129 Stat. at 269-70; Murphy Decl. ~ 13. In accordance with Congress's directive
10 See, e.g., Mark Coppenger, Snowdenism: A Moral Assessment, PROVIDENCE, Spring 2017, at 37, 39 ( Although Judge Leon s ruling was later overturned by an appeals court on a technicality, Congress enacted major reforms to the program based on many of the same concerns."); Alan Rubel, Legal Archetypes and Metadata Collection, 34 WIS.lNT' L L.J. 823, 837-38 (2017) ("The legislation was inspired by the controversy surrounding the bulk metadata program, and makes important modifications to the business records provisions upon which the program was based.").
19

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 20 of 35
in the USA FREEDOM Act, the final FISC order authorizing bulk collection of telephony metadata under Section 215 expired on November 28,2015. See Aug. 27, 2015 FISC Order at 4. Despite the November 29,2015 deadline, on November 24,2015, the FISC authorized temporary, limited access to the collected metadata by NSA personnel through February 29, 20 16, but it did so "solely for the purpose of verifying the completeness and accuracy of call detail records produced under the targeted (i.e., nonbulk) production orders" issued by the FISC under the USA FREEDOM Act's targeted collection program. Nov. 24, 2015 FISC Order at 6. And even this limited access ended over twenty months ago. !d.
Both of plaintiffs' requests for declaratory and prospective injunctive relief are accordingly mooted by this change in law. First, plaintiffs' request for a "cease and desist order to prohibit" the bulk collection of their telephony metadata under Section 215 is moot because the USA FREEDOM Act prohibits bulk collection. See Klayman I, 4th Am. Compl. ,-r 71. Indeed, "[i]t is well established that a case must be dismissed as moot if new legislation addressing the matter in dispute is enacted while the case is still pending." Am. Bar Ass 'n v. Fed. Trade Comm 'n, 636 F.3d 641, 643 (D.C. Cir. 2011). Second, plaintiffs' request for a "cease and desist order to prohibit" the NSA from querying plaintiffs' metadata allegedly collected pursuant to Section 215 is also moot because the FISC has prohibited the NSA from accessing this data for intelligence analysis purposes. See Klayman I, 4th Am. Compl. ,-r 71; Klayman JJ, 3d Am. Compl. ,-r 47; Nov. 24,2015 FISC Order at 6; Murphy Dec!. ,-r 17. Because ofthis intervening action by Congress and the FISC, it is clear that a decision by this Court would "neither
20

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 21 of 35
presently affect" plaintiffs' rights nor "have a more-than-speculative chance of affecting them in the future," and thus plaintiffs' claims no longer present a live Article III case or controversy. Chamber ofCommerce, 642 F.3d at 199 (quoting Clarke, 915 F.2d at 701).
Plaintiffs rejoin that the voluntary-cessation exception to the mootness doctrine applies here, and thus that their claims are not moot. Klayman I, Pis.' Opp'n to Defs.' Mot. Dismiss Klayman I & Klayman II for Lack of Subj. Matter Jurisdiction 14-15 ("Pls.' Opp ' n") [Dkt. #182]. I disagree. "The rationale supporting voluntary cessation as an exception to mootness is that, without an order from the Court preventing [the defendant] from continuing the allegedly illegal practice, the defendant [would be] free to return to its old ways-thereby subjecting the plaintiff to the same harm but, at the same time, avoiding judicial review." Jackson v. US. Parole Comm 'n, 806 F. Supp. 2d 201, 207-08 (D.D.C. 2011) (internal quotation marks omitted). Here, defendants are plainly not "free" to reinstitute the Section 215 bulk collection program because the USA FREEDOM Act expressly bars them from doing so. Cf Am. Bar Ass 'n, 636 F.3d at 648 ("[When] intervening legislation simply nullifie[s] the [agency program] .... [, t]his scenario is not within the compass of the voluntary cessation exception to mootness."); Campbell v. Clinton, 203 F.3d 19, 34 n.14 (D.C. Cir. 2000) ("The President's cessation of the attack on Yugoslavia was not ' voluntary' within the [Supreme] Court's meaning [of voluntary cessation]; the war ended because the United States won, not because the President sought to avoid litigation."). And even if the Government attempted to restart the program by seeking FISC approval of a bulk collection of telephony metadata, the FISC could not grant the request. See Nov. 24, 2015 FISC Order at 3 (noting that the
21

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 22 of 35

USA FREEDOM Act "clearly forecloses the issuance [of orders permitting] additional bulk collection after November 28, 2015" (emphasis omitted)). The voluntary cessation exception to the mootness doctrine therefore does not apply in this case. 11
Plaintiffs again counter that the USA FREEDOM Act is "riddled with loopholes" that would "allow the intelligence agencies to collect all kinds of personal data without prior court approval." Pis.' Opp'n 13, 26. As an example of a loophole that "create[s] plenty of 'wiggle room' for the intelligence agencies to continue to operate unchecked," plaintiffs cite Section 102 of the USA FREEDOM Act. !d. at 12. That Section provides that the Attorney General may require the "emergency production" of documents or other tangible things without a FISC order, for a period not to exceed seven days, if he "reasonably determines that the factual basis for the issuance of [a FISC] order under [Section 215] to approve such production of tangible things exists." USA FREEDOM Act§ 102, 129 Stat. at 271; 50 U.S.C. § 1861(i)(l)(B); Pis.' Opp'n 13. But even under this emergency exception, the statute is clear that the Attorney General has no authority to require bulk collection; he may authorize collection based only on specific selection terms that he reasonably determines to be associated with foreign terrorist activity. See USA FREEDOM Act§ 102, 129 Stat. at 271; 50 U.S .C. § 1861(i)(l)(B). And the

11 Pla in tiffs also insist that the Government has engaged in a " pattern and practice of deception and

di sregard fo r the law,' such that [p]la intiffs have c learly establ ished at minimum ' reasonable probability'

th at futu re hann wi ll ari se." Pis.' Opp n 17. Plai nti ffs have not, however, identifie d any factual basis to

su pport their that governm

c laim th at ent officia

defendants have engaged in a pattern of ls w ill conduct themse lves properly and

deception. And th is
in good fai th ." in re

Co urt Navy

must 'presume Chaplaincy,

85 0 F. upp. 2d 86,94 (D.D.C. 201 2). But as I have a lready noted, even if defe ndants were attempting to

deceive this Court, and even if they tried to resurrect the Section 215 bulk collectio n progra m in the

future, the FISC could not sanction bulk surveillance. See Nov. 24,2015 FISC Order at 3. Plaintiffs'

argument accordingly fails on this point.

22

Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 23 of 35
Attorney General's determinations are, of course, subject to mandatory review by the FISC. See USA FREEDOM Act§ 102, 129 Stat. at 271; 50 U.S.C. § 1861(i)(l)(C). Thus, plaintiffs' fear that the USA FREEDOM Act "in many ways actually expands the scope of wide-scale unconstitutional surveillance" is unsupported by the text of the statute. Pis. ' Opp'n 12.
Plaintiffs' final argument on this point is that they should at least be permitted to engage in jurisdictional discovery in order to show that their telephony metadata was collected and queried as part of the Section 215 program. !d. at 17. Unfortunately for plaintiffs, the facts they seek to obtain through discovery cannot possibly establish jurisdiction in this case. To obtain jurisdictional discovery, plaintiffs are required to make a "detailed showing" that "include[s] some facts about what additional discovery could produce" to establish jurisdiction. Shaheen v. Smith, 994 F. Supp. 2d 77, 89 (D.D.C. 2013). Without such a showing, it would be '"inappropriate to subject [defendants] to the burden and expense of discovery'" before dismissing this case on jurisdictional grounds. App Dynamic ehfv. Vignisson, 87 F. Supp. 3d 322, 329 (D.D.C. 20 15) (quoting Atlantigas Corp. v. Nisource, 290 F. Supp. 2d 34, 53 (D.D.C. 2003)). Here, plaintiffs have identified the discovery they wish to pursue: evidence showing whether their metadata was collected as part of the Section 215 bulk collection program. Pis.' Opp'n 6, 17-18. But even if plaintiffs were able to establish-through jurisdictional discovery-that the NSA had, in fact, collected their telephony metadata, they still would not be able to overcome the jurisdictional defect in this case. Because bulk collection under Section 215 is now prohibited by statute, plaintiffs' claims for injunctive relief
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Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 24 of 35
against bulk collection are moot, regardless of whether the Government actually collected and queried plaintiffs' telephony metadata pursuant to the Section 215 program in the past. Plaintiffs' request for jurisdictional discovery is accordingly denied, and their claims for declaratory and prospective injunctive relief related to the Section 215 bulk collection program must be dismissed as moot.
2. Plaintiffs' Claim for Expungement In addition to their request for injunctions against further bulk collection and querying of their telephony metadata, plaintiffs also request that any of their metadata that was collected pursuant to Section 215 be "expunged from federal government records." Klayman I, 4th Am. Compl.~ 71; Klayman II, 3d Am. Compl.~ 77. Because I conclude that plaintiffs lack standing to pursue this injunctive relief, their request must also be denied. To establish Article III standing, plaintiffs must show, among other things, that their injury is '"fairly trace[able] ... to the challenged action' of [defendants]." Bhd. of Locomotive Eng'rs v. Surface Transp. Bd., 457 F.3d 24,28 (D.C. Cir. 2006) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Importantly, an Article III court may only redress injury "'that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court."' Nw. Airlines, Inc. v. Fed. Aviation Admin., 795 F.2d 195, 203-04 (D.C. Cir. 1986) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). Similarly, our Circuit has "consistently held that self-inflicted harm doesn't
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Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 25 of 35
satisfy the basic requirements for standing." Nat 'l Family Planning & Reprod. Health Ass 'n v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006).
Here, defendants have retained the remaining call-detail records at the request of plaintiffs-in this litigation-and third parties in other similar cases. As discussed above, the FISC's November 24, 2015 order required the Government to destroy all bulk telephony metadata produced under the Section 215 program once its preservation obligations in civil litigation had been lifted. See Murphy Decl. ~ 18; Nov. 24, 2015 FISC Order at 8. And as of the date of this opinion, the only metadata that the Government still retains from its bulk collection under Section 215 is metadata that is subject to a preservation obligation in this and other litigation. Murphy Decl. ~ 18. Indeed, it was plaintiffs who explicitly requested that this Court enter an order that would prohibit defendants from "destroy[ing] any records relating to the Plaintiffs until this case is tried and all appeals are heard." Klayman I, Pis.' Renewed Mot. Prelim. Inj. Proposed Order [Dkt. #149-3]. And the same is true in the other civil litigation concerning the Government's challenged surveillance programs. See, e.g., Preservation Order A, D, Jewel, No. 4:08-cv-4373-JSW (N.D. Cal. Nov. 16, 2009); Preservation Order A, E, First Unitarian Church, No. 4:13-cv-3287-JSW (N.D. Cal. Mar. 21, 2014). 12 As such, any injury plaintiffs may suffer as a result of this retention is either self-inflicted or traceable
12 But even without such an order, defendants are correct that they have "a duty 'to preserve potentially relevant evidence," and that they run the risk of sanctions if they fail to do so. Zhi Chen v. District of Columbia, 839 F. Supp. 2d 7, 12 (D.D.C. 20 II) (quoting D'Onofrio v. SFX Sports Grp., Inc. No. 06-687, 20 I0 WL 3324964, at *5 (D.D.C. Aug. 24 20 I0)). Plaintiffs are essentially requesting that this Court order defendants both to preserve the remaining metadata they collected under Section 215 for the purposes of this litigation, and to destroy that very same metadata. Particularly in light of defendants' court-ordered preservation obligations, I will not grant this seemingly contradictory demand.
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to the actions of third parties who are not before this Court. Plaintiffs accordingly lack standing to pursue their claims for expungement of the remaining bulk telephony metadata.
B. Plaintiffs' Challenge to FISA's Pen-Trap Provision In addition to their challenges to the Government's now defunct surveillance
program under Section 215 of the USA PATRIOT Act, plaintiffs seek a "cease and desist order to prohibit" the NSA from collecting or querying bulk Internet metadata pursuant to Section 402 ofFISA, and an order requiring the "expunge[ment] from federal government records" of any data the NSA collected as part of this program. Klayman II, 3d Am. Compl. ~ 77. Defendants insist that plaintiffs' claims do not present an Article III case or controversy because the NSA ceased FISC-authorized bulk collection of Internet metadata-and destroyed all metadata collected pursuant to Section 402-in December of 2011. See Klayman I, Defs.' Mem. Supp. Mot. Dismiss Klayman I & Klayman II for Lack of Subj. Matter Jurisdiction 31 ("Defs.' Mem.") [Dkt. #178-1 ]. Unfortunately for plaintiffs, defendants are correct.
Eighteen months before plaintiffs filed this suit, the NSA had already discontinued its bulk collection program under FISA and destroyed the accumulated metadata. See Murphy Decl. ~~ 19-21. And four years after the Section 402 program was discontinued, Congress enacted the USA FREEDOM Act, which prohibits bulk collection of metadata under FISA's pen-trap provision. USA FREEDOM Act§ 201, 129 Stat. at 277; 50 U.S.C. § 1842(c)(3). Thus, even assuming that plaintiffs' Internet metadata had been collected pursuant to Section 402, this Court could not grant plaintiffs the relief they
26

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request because that metadata was destroyed eighteen months prior to the filing of plaintiffs' complaints. As such, plaintiffs have failed to show an injury that could be redressed by the injunctive relief they request, and this Court accordingly lacks jurisdiction to hear their claim. 13
Plaintiffs insist that this Court should not credit the evidence defendants have presented to show that bulk data collection under Section 402 ended in 2011. They assert that the declaration of Wayne Murphy, the Director of Operations of the NSA, "is hardly credible evidence, particularly since the NSA has a history of deceit, lying to this and other courts, and lawless conduct." Pis.' Opp'n 19. They insist that "[i]fDirector of National Intelligence James Clapper is willing to lie and commit perjury, under oath, before Congress," I should not take Murphy's declaration at face value. !d. Unfortunately for plaintiffs, these accusations fall far short of satisfying their burden under Federal Rule of Civil Procedure 12(b)(l). Once the Government introduced Murphy's declaration, the burden shifted to plaintiffs to prove "by a preponderance of the evidence that the [C]ourt has subject matter jurisdiction to hear the case." Harris v. Koenig, 722 F. Supp. 2d 44, 49 (D.D.C. 2010). Plaintiffs, however, have not pointed to any evidence to contest Murphy's sworn statement that the bulk collection oflnternet
'-' Plaintiffs alternatively argue that the voluntary cessation exception to the mootness doctrine applies here because defendants voluntarily discontinued the program and destroyed the related metadata. Pis.' Opp'n 19. But because defendan ts discontinued the program and destroyed the related metadata eighteen months before plaintiffs even filed these suits, the mootness doctrine--let alone the voluntary cessation exception to that doctrine- does not apply. See, e.g., Friends ofthe Earth, Inc. v. Laidlaw Envt 'l Servs., 528 U.S. 167, 191 (2000) (" [B]y the time mootness is an issue, the case has been brought and litigated."). Additionally, there is no risk that defendants could reinstitute the bulk Internet metadata collection program because it has been prohibi ted by the USA FREEDOM Act. See USA FREEDOM Act § 20 I, 129 Stat. at 277; 50 U.S.C . § 1842(c)(3). Plaintiffs' argument on this point is accordingly of no avail.
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metadata was discontinued in 2011. As such, plaintiffs have failed to refute the Government's Rule 12(b)(l) evidence, and they therefore have not established a live Article III case or controversy as to the surveillance program conducted under Section 402.
C. Plaintiffs' Challenge to the PRISM Program Plaintiffs next challenge the PRISM program, which-unlike the Section 215
program or the bulk collection of Internet metadata pursuant to Section 402 of FISA-is an ongoing targeted collection program conducted under FISA Section 702. See 50 U.S.C. § 1881a. As discussed above, under the PRISM program, the Government uses selectors-like e-mail addresses of non-U.S. persons located abroad-to collect online communications. See Murphy Decl. ~~ 22-26. Plaintiffs generally allege that defendants unconstitutionally intercepted their telephonic and Internet communications pursuant to the PRISM program. Klayman II, 3d Am. Compl. ~~ 41, 53. And while plaintiffs' arguments on this point are slightly re-packaged, they are largely the same as those I addressed in my first opinion in this case.
In my December 2013 opinion granting plaintiffs' motion for a preliminary injunction, I rejected plaintiffs' challenges to the PRISM program on the ground that they did not allege sufficient facts to show that the NSA had actually targeted any of their communications. Klayman, 957 F. Supp. 2d at 8 n.6. I based my ruling on the Supreme Court's decision in Clapper, 568 U.S. at 398, in which the Court concluded that the plaintiffs in that case lacked standing to challenge the very same statutory provision as the one challenged here. That was so, according to the Court, because it was speculative
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whether "potential future surveillance is certainly impending or is fairly traceable to § 1881a." Clapper, 568 U.S. at 414. In rejecting plaintiffs' claims, I noted that "plaintiffs here have not even alleged that they communicate with anyone outside the United States at all, so their claims under Section 702 are even less colorable than those of the plaintiffs in Clapper." Klayman, 957 F. Supp. 2d at 8 n.6 Although plaintiffs have since amended their complaint in Klayman II to bolster their claim of standing on this basis, I find that they still fail to allege facts sufficient to satisfy their Article III burden.
In the most recent version of their complaint in Klayman II, plaintiffs allege specific facts intended to show that they do, in fact, communicate with persons abroad who are likely to have been monitored under the PRISM program. Specifically, plaintiffs claim that "Klayman frequents and routinely telephones and e-mails individuals and high-ranking government officials in Israel, a high-conflict area where the threat of terrorism is always present." Klayman II, 3d Am. Compl. ~ 12. Klayman proceeds to list various meetings and communications he has had with persons in Israel, Spain, the United Kingdom, and several other European nations "which have very large Muslim populations and where terrorist cells are located." !d. ~~ 12-17. He also recounts an occasion in which he was participating in a radio interview about the NSA, when the show experienced "a tech meltdown." !d. ~ 16. Klayman states-in conclusory fashion-that this event made "clear that the NSA was attempting to harass him." !d. The Stranges have also bolstered their standing claim by alleging that they "make telephone calls and send and receive e-mails to and from foreign countries" and that they "have received threatening e-mails and texts from overseas, in particular Afghanistan."
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!d. ,[19. The other remaining plaintiffs variously allege that they make and receive telephone calls and send and receive e-mails to and from foreign countries. !d. ~~ 20-21. Based on these new allegations, plaintiffs insist that they have "pled specific facts that strongly support [their] contention that their metadata was collected under the PRISM Program, and that it remains substantially at risk of such collection." Pis.' Opp'n 22. I disagree.
Notwithstanding these efforts to salvage their suit, plaintiffs' allegations remain plainly insufficient under the standard the Supreme Court articulated in Clapper. In Clapper, the plaintiffs alleged that the very fact that the PRISM program was operational gave them "no choice but to assume that any of[their] international communications may be subject to government surveillance, and [they] have to make decisions ... in light of that assumption." 568 U.S. at 411. The Supreme Court rejected these allegations out of hand, reasoning that the plaintiffs had "set forth no specific facts demonstrating that the communications of their foreign contacts will be targeted." !d. at 412. The Court ultimately concluded that there were too many steps in the plaintiffs' speculative chain of causation for their claims to pass muster under Article III, especially because Section 1881 a "at most authorizes-but does not mandate or direct-the surveillance that [plaintiffs] fear." !d.
The Court proceeded to set forth four additional breaks in the Clapper plaintiffs' chain of causation that doomed their standing. First, even if the plaintiffs could show that their foreign contacts would be targeted, they had no facts showing that the Government would use the PRISM program, rather than other methods of surveillance, to do so. !d.
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Second, even if the plaintiffs could show that the Government would seek FISC authorization to surveil their foreign contacts under the PRISM program, they could do nothing more than speculate as to whether the FISC would actually authorize that surveillance. !d. at 413. Third, even if the Government were to obtain FISC approval, the plaintiffs set forth no facts to support the conclusion that the Government would succeed in obtaining the targeted communications. !d. at 414. And fourth, even if the plaintiffs could demonstrate that the Government would successfully obtain communications of their foreign contacts, they pleaded no facts suggesting that the plaintiffs' own communications with those foreign contacts would be incidentally collected. !d. Thus, the Court concluded that the Clapper plaintiffs' speculative chain of causation failed to satisfy Article III.
The same is true here. In fact, most of plaintiffs' allegations that they communicate with unidentified persons in foreign countries fall far short even of the Clapper plaintiffs' allegations, which the Supreme Court held to be inadequate. Among other defects, plaintiffs here have not alleged any facts tending to show that: (1) their foreign contacts would be targeted by the PRISM program; (2) defendants would seek FISC authorization to surveil their foreign contacts under the PRISM program; (3) defendants would actually succeed in obtaining communications from plaintiffs' foreign contacts; or (4) plaintiffs' communications with their foreign contacts would be among those collected pursuant to the PRISM program. See Clapper, 568 U.S. at 411414. While Klayman has alleged more facts than the other plaintiffs to support his challenge to the PRISM program, his assertions that his foreign contacts have, in fact,
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been targeted by the Government under the PRISM program "are necessarily conjectural," because the identities of PRISM targets are classified. /d. at 412; Murphy Decl. ~27.
Plaintiffs take issue with this line of reasoning, arguing that, by classifying the identities of persons targeted by the PRISM program, the Government is able to "escape liability for [its] illegal activities," by depriving plaintiffs of the evidence they need to establish Article III standing. Pis.' Opp'n 23. But the Supreme Court expressly rejected this very same argument in Clapper. First, the Court noted that "[t]he assumption that if [plaintiffs] have no standing to sue, no one would have standing, is not a reason to find standing." Clapper, 568 U.S. at 420 (internal quotation marks omitted). Second, the Court recognized that the PRISM program was not insulated from judicial review because "Congress created a comprehensive scheme in which the [FISC] evaluates the Government's certifications, targeting procedures, and minimization proceduresincluding assessing whether the targeting and minimization procedures comport with the Fourth Amendment." /d. at 421. Therefore, while plaintiffs may disagree with Congress's decision to enact Section 188la-and they may be dissatisfied with the FISC's rulings pursuant to that statute-these issues are irrelevant to my assessment of plaintiffs' standing in this case. I d. Plaintiffs' challenge to the PRISM program is accordingly dismissed.
D. Plaintiffs' Constitutional Claims for Damages Finally, plaintiffs attempt to advance constitutional tort claims for compensatory
and punitive damages. Specifically, they assert Bivens claims against both the individual 32

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defendants-who have since been dismissed from this action-as well as the Government defendants for violations of their First, Fourth, and Fifth Amendment rights. Klayman I, 4th Am. Compl. ~~ 49-69; Klayman II, 3d Am. Compl. ~~ 55-75. The Government insists, however, that I lack jurisdiction to hear plaintiffs' claims because they are barred by sovereign immunity. Defs.' Mem. 38. I agree.
"[I]t is well established that '[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.'" Debrew v. Atwood, 792 F.3d 118, 124 (D.C. Cir. 2015) (quotingFDICv. Meyer, 510 U.S. 471,475 (1994)). The burden of proving that the Government has unequivocally waived its immunity belongs to plaintiffs, and that waiver must be "unequivocally expressed in the statutory text." TriState Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C. Cir. 2003). Here, plaintiffs have identified no statutory waiver of sovereign immunity that would allow a claim for money damages against the Government in these circumstances.
And this omission in plaintiffs' briefing is not surprising, given the fact that "federal constitutional claims for damages are cognizable only under Bivens, which runs against individual governmental officials personally." Loumiet v. United States, 828 F.3d 935 , 945 (D.C. Cir. 2016); see also Bivens v. Six Unknown Named Agents ofFed. Bureau ofNarcotics, 403 U.S. 388 (1971 ). Although plaintiffs insist that they have plans to "file a motion ... to serve the Individual Defendants, in their individual capacities" to "allow this crucial matter to proceed substantively," the fact remains that the individual defendants were dismissed from this case, and thus plaintiffs' constitutional claims
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against them cannot proceed. 14 Pis.' Opp'n 26; see Klayman I, 9/20116 Mem. Order ("[T]he complaint is DISMISSED as to the individual federal defendants."); Klayman II, 9/20/16 Mem. Order ("[T]he complaint is DISMISSED as to the government officials in their individual capacities."). Because "sovereign immunity is jurisdictional in nature"and I conclude that the Government has not waived its sovereign immunity here-I lack jurisdiction to assess plaintiffs' constitutional damages claims. Tri-State Hasp. Supply Corp., 341 F.3d at 575.
CONCLUSION While the zeal and vigilance with which plaintiffs have sought to protect our Constitutional rights is indeed laudable, this Court, in the final analysis, has no choice but to dismiss these cases for plaintiffs' failure to demonstrate the necessary jurisdiction to proceed. I do so today, however, well aware that I will not be the last District Judge who will be required to determine the appropriate balance between our national security and privacy interests during this never-ending war on terror. Hopefully by the time these issues are next joined, our Supreme Court will have had the opportunity to provide us with further guidance on the parameters of our privacy interests in this era of everincreasing electronic communication. If not, concerned citizens such as these will
14 It is wotih noting that, even if the individual federal defendants were properly before this Court as defendants, recent Supreme Court precedent makes it unclear whether plaintiffs could even maintain a Bivens action against them at all. Cf Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (20 17) ("[T]he Court has made clear that expanding the Bivens remedy is now a 'disfavored' judicial activity. This is in accord with the Cowi's observation that it has consistently refused to extend Bivens to any new context or new category of defendants. Indeed, the Court has refused to do so for the past 30 years." (internal citations and quotation marks omitted)).
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Case 1:13-cv-00881-RJL Document 137 Filed 11/21/17 Page 35 of 35 continue to shoulder the heavy yoke that vigilance to our Constitutional liberties surely requires.
Thus, for all the reasons stated herein, Defendants' Motion to Dismiss is GRANTED. Plaintiffs' complaints are both DISMISSED with prejudice. A separate Order consistent with this decision accompanies this Memorandum Opinion.
2L~WtJ
RICHARDJ. United States District Judge
35

 
 ORAL ARGUMENT REQUESTED CASE NO. 17-5281/5282 (CONSOLIDATED) IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
LARRY KLAYMAN, et al Plaintiffs-Appellants, v.
BARACK OBAMA, et al Defendants-Appellees.
APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
APPELLANTS’ INITIAL BRIEF
Larry Klayman, Esq. Klayman Law Group, P.A. 2020 Pennsylvania Ave. N.W. Suite 800 Washington, D.C. 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com Attorney for Plaintiffs-Appellants
Dated: September 4, 2018

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A.

Parties

Larry Klayman is an individual and a Plaintiff/Appellant. Charles Strange is

an individual and a Plaintiff/Appellant. Mary Ann Strange is an individual and a

Plaintiff/Appellant. Michael Ferrari is an individual and a Plaintiff/Appellant. Matt

Garrison is an individual and a Plaintiff/Appellant. J.J. Little & Associates, P.C. is

a professional corporation and a Plaintiff/Appellant. Barack Obama is an

individual and a Defendant/Appellee. Eric Holder is an individual and a

Defendant/Appellee. Keith Alexander is an individual and a Defendant/Appellee.

Roger Vinson is an individual and a Defendant/Appellee. The United States of

America is a Defendant/Appellee. The National Security Agency is a

Defendant/Appellee. There were no amici in the district court.

B.

Rulings

Appellants appeal from the U.S. District Court for the District of Columbia’s

order granting the Defendants/Appellees’ Consolidated Motion to Dismiss and all

other rulings averse to Appellants in this matter. App. ___.

C.

Related Cases

This case was previously before this Court in appeal numbers 14-05004, 14-

05005, 14-05016, 14-05017, 14-05208, 14-05209, and 15-05307. This case is

related to Montgomery v. Comey et al, 1:17-cv-01074, which is currently on appeal before this Court in appeal number 18-5097.
CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure (“FRAP”) 26.1, Appellants are not officers, directors, or majority shareholders of any publicly traded corporation.

TABLE OF CONTENTS JURISDICTIONAL STATEMENT ........................................................................ 1 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ........................... 1 STATEMENT OF THE CASE ................................................................................ 1 SUMMARY OF THE ARGUMENT ...................................................................... 5 STANDARD OF REVIEW ..................................................................................... 6
ARGUMENT ........................................................................................................... 8 THE DISTRICT COURT ERRED BY FINDING APPELLANTS’ CLAIMS MOOT WITHOUT EVEN ALLOWING DISCOVERY AFTER REMAND. ...................................................................................................... 8 THE DISTRICT COURT ERRED BY FINDING APPELLANTS DID NOT HAVE STANDING TO PURSUE THEIR SECTION 215 AND PRISM CLAIMS ....................................................................................................... 14
CONCLUSION ...................................................................................................... 19

Table of Authorities Cases ABA v. FTC, 636 F.3d 641 (D.C. Cir. 2011)............................................... 11, 12, 13 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ................................................................. 7 Bell Atlantic Corp. v. Twombly, 500 U.S. 544 (2007) .......................................... 6, 8 Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (U.S. 2013)............................. 17, 18 Croixland Properties Ltd. v. Corcoran, 174 F.3d 213 (D.C. Cir. 1999) .................. 6 Erickson v. Pardus, 551 U.S. 89 (2007) ................................................................... 8 Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993)......................................................................................................... 6 Peters v. National R.R. Passenger Corp., 966 F.2d 1483 (D.C. Cir. 1992) ............. 6 Schuler v. United States, 617 F.2d 605 (D.C. Cir. 1979).......................................... 6 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).................................................. 8
Statutes 28 U.S.C. § 1291....................................................................................................... 1 28 U.S.C. § 1331....................................................................................................... 1 50 U.S.C. § 1881(a) ................................................................................................ 15 50 U.S.C. § 1881(b) ................................................................................................ 15 FISA § 215 .............................................................................................. 8, 10, 11, 14 FISA § 402 ...................................................................................................... 8, 9, 10 FISA § 702 .............................................................................................................. 14 USA Freedom Act................................................................. 1, 5, 8, 9, 10, 11, 12, 14

JURISDICTIONAL STATEMENT The basis for the U.S. District Court for the District of Columbia’s (“District Court”) subject-matter jurisdiction is pursuant to 28 U.S.C. § 1331 under Federal Question Jurisdiction. The basis for the U.S. Court of Appeals for the District of Columbia Circuit’s jurisdiction is pursuant to 28 U.S.C. § 1291 because this appeal is from a final judgment that disposes of all parties’ claims. Pursuant to the order of the Court, Appellants’ Initial Brief is due September 4, 2018
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 1. Did the District Court err by granting Appellees’ Consolidated Motion to Dismiss on November 21, 2017 before even allowing Appellants an opportunity to conduct discovery, especially given the intelligence agency Appellees’ pattern and practice of willful disregard for the law and constitutional rights of millions of Americans?
STATEMENT OF THE CASE As the District Court has undeniably already recognized, this is the case at the pinnacle of national importance. Despite the passage of the USA FREEDOM Act, the issues set forth initially in 2013 when this case was originally filed are still as pressing, if not even more so, today. The fact remains that our own Government, led by Appellees, has committed the biggest violation of constitutional rights in American history, and they continue to do so without repercussion. This Court
1

must, respectfully, stand up the for constitutional rights of Americans – including
members of this Court – and simply say, “enough is enough.”1
Appellant Larry Klayman (“Mr. Klayman”) once argued in front of the
District Court on November 18, 2013, “[w]e have never seen in the history of this
country this kind of violation of the privacy rights of the American citizens. We
live in an Orwellian state.” App. ___. At the time, the District Court concurred,
finding, “…the almost-Orwellian technology that enables the Government to store
and analyze the phone metadata of every telephone user in the United States is
unlike anything that could have been conceived in 1979.” ECF No. 48 at 49. See
also id. at 41 (“…empower the government to conduct wide-ranging ‘DNA
dragnets’ that raise justifiable citations to George Orwell”).
1 Indeed, it would at least appear that the Honorable Richard Leon of the District Court may have subconsciously sought to dismiss this case as a matter of human nature to reduce his docket, as he is now on senior status and was also presiding over the AT&T/Time Warner case. Other courts have acted in a different fashion. See American Civil Liberties Union v. Clapper, 1:13-cv-3394 (S.D. N.Y.). The ACLU case also challenged the NSA’s bulk metadata collection program, and while the lower court dismissed it, the U.S. Court of Appeals for the Second Circuit held, “the telephone metadata program exceeds the scope of what Congress has authorized and therefore violates [Section 215 of the Patriot Act]. Accordingly, we VACATE the district court's judgment dismissing the complaint and REMAND the case to the district court for further proceedings consistent with this opinion. The Second Circuit has valiantly stood up to the intelligence agencies, and it is therefore incumbent upon this Court to do the same, which is the only hope that millions of Americans who are being illegally and unconstitutionally spied upon have at meaningful change.
2

The intelligence agencies’ conscious disregard for the law has been ongoing for decades, and there is no reason to believe that, all of a sudden, they will begin to respect the constitutional rights of Plaintiffs, and all Americans, which is why Appellant should have, at a minimum, been allowed discovery before the Court dismissed their claims. In 2014, the Honorable Reggie Walton, who is now a member of the District Court wrote a scathing opinion and order, accusing intelligence agencies of callous and lawless disregard for the truth and the law, while he was part of the Foreign Intelligence Services Court. App. ___. At the heart of the Walton Order was the Department of Justice’s (in representing the intelligence agencies) blatant misrepresentations on behalf of the NSA and other intelligence agencies, to the FISC court regarding whether certain parties had made requests to have their collected metadata preserved for litigation. Despite the fact that the parties, Jewel and First Unitarian, had contacted the government and made a “specific request” that the government inform the FISC of their existence, the government lies in a later pleading, stating that the parties “did not make a ‘specific request’ that the government inform this Court about the preservation orders….” App. ____. Judge Walton writes scathingly about the Department of Justice’s deception, stating that, “[a]s the government is aware, it has a heightened duty of candor to the Court in ex parte proceedings. Regardless of the government's perception of the materiality of the preservation orders in Jewel and
3

Shubert to its February 25 Motion, the government was on notice, as of February 26, 2014, that the plaintiffs in Jewel and First Unitarian believed that orders issued by the U.S. District Court for the Northern District of California required the preservation of the FISA telephony metadata at issue in the government's February 25 Motion.” App. ___.
The government, upon learning this information, should have made the FISC aware of the preservation orders and of the plaintiffs' understanding of their scope, regardless of whether the plaintiffs had made a "specific request" that the FISC be so advised. Not only did the government fail to do so, but the E-mail Correspondence suggests that on February 28, 2014, the government sought to dissuade plaintiffs' counsel from immediately raising this issue with the FISC or the Northern District of California. App. ___. Thus, as Judge Walton found, not only did the Department of Justice, in representing the intelligence agencies, blatantly attempt to deceive the court regarding its preservation obligations, it actively tried to cover up its deception by trying to “dissuade plaintiffs’ counsel from immediately raising this issue.” App. ___. This clearly demonstrates the lengths to which the intelligence agencies are willing to go to, in this case, destroy data that might be used as evidence of their illegal activities against them. Incredibly, this pattern and practice of blatant dishonest and lawless behavior has also been manifest over the course of this litigation, as the District Court explicitly questioned – on the record – Appellees’ propensity for deception, stating, “[c]andor of this type defies common sense and
4

does not exactly inspire confidence!” Klayman I, ECF No. 48 at 38. See also id. at 62, n. 64 (“Such candor is as refreshing as it is rare.”).
These instances of severe misconduct, which are ongoing, clearly evidence why the District Court’s order granting dismissal of Appellants’ claims was premature, since Appellants were denied a chance to take discovery. In doing so, the District Court has taken Appellees’ word at face value, which is surprising given its own comments about their lack of candor and the fact that it has been widely reported that the conduct that Appellees disingenuously claim to have been ceased are still ongoing, if not amplified. This Court must therefore step in as the guardian for the millions of Americans whose constitutional rights are being grossly violated by Appellees.
SUMMARY OF THE ARGUMENT The District Court erroneously held that Appellants’ causes of action were mooted out by the passage of the USA FREEDOM Act, which is incorrect on two grounds: (1) history has clearly shown that Appellees have no regard for the law or Constitution, so a change in the law has no deterrent effect, and (2) the doctrine of voluntary cessation applies. Furthermore, Appellants have properly alleged facts that show that they have standing to challenge the illegal and unconstitutional spying and surveillance being conducted on them. ///
5

STANDARD OF REVIEW Whether the District Court properly granted Appellees Motion to Dismiss and entered judgment on the pleadings in favor of Appellees is a question of law, which this Court reviews de novo. Peters v. National R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992); see also Croixland Properties Ltd. v. Corcoran, 174 F.3d 213, 215 (D.C. Cir. 1999). In doing so, this Court must treat all the factual allegations of the complaint as true, see Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993) (reviewing de novo the district court’s dismissal of claims), and must grant plaintiff[s] “the benefit of all inferences that can be derived from the facts alleged,” Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979). Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In several cases, the U.S. Supreme Court addressed the standards for deciding motions to dismiss a complaint for failure to state a claim. First, in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Court held that facts alleging that companies engaged in parallel business conduct, but not indicating the existence of an actual agreement, did not state a claim under the Sherman Act. The Court stated that in an antitrust action, the complaint must contain “enough factual matter (taken as true) to suggest that an agreement was
6

made,” explaining that “[a]sking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading state; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.” Id. at 556. The Court also explained, more generally, that “. . . a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,” yet “must be enough to raise a right to relief above the speculative level” and give the defendant fair notice of what the claim is and the grounds upon which it rests. Id. at 555. In other words, Plaintiffs-Appellants here need only allege “enough facts to state a claim to relief that is plausible on its face” and to “nudge[] the[] claims[] across the line from conceivable to plausible.” Id. at 570.
Subsequently, in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Court elaborated. There, the Court held that a pretrial detainee alleging various unconstitutional actions in connection with his confinement failed to plead sufficient facts to state a claim of unlawful discrimination. The Court stated that the claim for relief must be “plausible on its face,” i.e., the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949. In this regard, determining whether a complaint states a plausible claim for relief is necessarily “a context-specific task.” Id. at 1950. Therefore, if a complaint alleges enough facts to
7

state a claim for relief that is plausible on its face, such as here, a complaint may not be dismissed for failing to allege additional facts that the plaintiff would need to prevail at trial. Twombly, 550 U.S. at 570; see also Erickson v. Pardus, 551 U.S. 89, 93 (plaintiff need not allege specific facts, the facts alleged must be accepted as true, and the facts need only give defendant “fair notice of what the *** claim is and the grounds upon which it rests” (quoting Twombly, 550 U.S. at 555).
Where the requirements of Rule 8(a) are satisfied, even “claims lacking merit may be dealt with through summary judgment.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). In this regard, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Twombly, 550 U.S. at. 556.
ARGUMENT I. THE DISTRICT COURT ERRED BY FINDING APPELLANTS’
CLAIMS MOOT WITHOUT EVEN ALLOWING DISCOVERY AFTER REMAND The District Court erroneously found that Appellants’ challenges to Section 215 of the USA PATRIOT Act (“Section 215”) and Section 402 of the Foreign Intelligence Surveillance Act (“Section 402”) are moot. The District Court reasoned that Appellants’ Section 215 claims are mooted out by the passage of the USA FREEDOM Act, which purportedly replaced Section 215 bulk collection of
8

telephone metadata with targeted production of call-detail records by telecommunications service providers. App. ___. The District Court further reasoned that Appellants’ Section 402 claims were mooted because of the NSA’s own assertions that it had discontinued the program and destroyed the metadata as well as the passage of the USA FREEDOM Act. App. ___. However, given the Appellees’ pattern and practice of disregard for the law, a change in the law is likely to have little to no effect on reducing the scope of their mass-scale unconstitutional surveillance programs. The only solution is a standing permanent injunction from this Court, so that Appellees can be haled into court when they commit these illegal acts, and be made to account for their actions.
As set forth above, the District Court’s dismissal of these claims is based entirely on the acceptance at face value of Appellees’ own assertions that the misconduct alleged in Appellants’ complaint is no longer occurring. This is especially baffling given the Appellees’ long standing pattern and practice of willfully deceiving the courts to cover up their mass-scale illegal and unconstitutional surveillance and spying programs, which the District Court experienced first hand during the litigation. Indeed, as laid out in the statement of the case, Appellees’ word simply cannot be trusted, as they have proven time and time again to have simply no regard for the rule of law, the Constitution, or the truth. By way of analogy, the District Court’s decision to dismiss Appellants’
9

claims due to the passage of the USA FREEDOM Act prohibiting the conduct set forth by Appellants in their complaint is akin to it dismissing a wrongful death claim against an alleged killer because murder is prohibited by law. Given the fact that Appellees have clearly shown that the law means little to nothing to them with regard to their illegal and unconstitutional surveillance programs, it is clear that Appellants should have, at a minimum, been allowed discovery to determine whether the misconduct under Section 215 and Section 402 has truly ceased (one can almost guarantee it has not) instead of taking a repeat offender’s word that it has. This defies all logic and reason.
Furthermore, regardless of whether Appellees have ceased the unconstitutional conduct under Section 215 and Section 402 (they have not), the doctrine of voluntary cessation renders Appellants’ claims not moot. Appellees claim, and the District Court erroneous concurred, that the reason that Appellants’ claims are moot because Congress has enacted the USA FREEDOM Act of 2015 However, what the USA FREEDOM Act conveniently fails to set forth is that the USA FREEDOM Act is replete with loopholes that create plenty of “wiggle room” for the intelligence agencies to continue to operate unchecked, and in many ways actually expands the scope of wide-scale unconstitutional surveillance, without probable cause, on Americans. First, the USA FREEDOM Act creates extremely broad “emergency” powers that allow the intelligence agencies to collect all kinds
10

of personal data without prior court approval. See Section 102 (“Emergency
Authority”). Critics of the USA FREEDOM Act have recognized these expansive
loopholes, stating that, “[t]he latest draft opens up an unacceptable loophole that
could enable the bulk collection of Internet users’ data...”2 A letter sent to Congress
by a bipartisan coalition of 60 advocacy groups summarizes the loopholes in the
USA FREEDOM Act perfectly:
The USA Freedom Act has significant potential to degrade, rather than improve, the surveillance status quo… At best, even if faithfully implemented, the current bill will erect limited barriers to Section 215, only one of the various legal justifications for surveillance, create additional loopholes, and provide a statutory framework for some of the most problematic surveillance policies, all while reauthorizing the Patriot Act.3
In addition to the expansive “wiggle room” and loopholes explicitly written into
the USA FREEDOM Act, which maintain the status quo, if not expand the scope
of wide-scale surveillance, the Appellees have engaged in a longstanding pattern
and practice of ignoring existing law and acting in an unchecked capacity in its
intelligence collection efforts. As such, any argument that Appellants have been
rendered moot by passage of the USA FREEDOM Act under ABA v. FTC, 636
2 Christian Brazil Bautista, Congress Passes Bill That May Allow the NSA to Continue Gathering Phone Records, Digital Trends, May 22, 2014, available at: http://www.digitaltrends.com/mobile/congress-passes-nsa-reform-bill/ 3 James Richard Edwards, The USA Freedom Act Eroding America’s Rights, Communities Digital News, Jun. 5, 2015, available at: http://www.commdiginews.com/politics-2/the-usa-freedom-act-eroding-americasrights-42779/
11

F.3d 641 (D.C. Cir. 2011) is erroneous under the doctrine of voluntary cessation.
Clearly, with the incontrovertible loopholes built into the USA FREEDOM
Act, any cessation of the Appellees’ illegal and unconstitutional conduct would
be voluntary, at best.
The court in ABA recognized that voluntary cessation is an exception to the
doctrine of mootness. Id. at 647-48.
As a general rule, a defendant's ‘voluntary cessation of allegedly illegal conduct does not deprive [a court] of power to hear and determine the case.’ Voluntary cessation will only moot a case if ‘there is no reasonable expectation . . . that the alleged violation will recur’ and ‘interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.’ The defendant carries the burden of demonstrating ‘that there is no reasonable expectation that the wrong will be repeated,’ and ‘[t]he burden is a heavy one.’
Id. at 648 (internal citations omitted). As set forth in ABA, the Defendant has the
heavy burden of showing that there is no reasonable expectation that the wrong
will be repeated, id, which the Appellees cannot come close to meeting. Indeed, the
Appellees have engaged in a longstanding pattern and practice of acting outside of
the law and ignoring the Constitution when conducting intelligence gathering, as
set forth in the statement of the case, and there is foolish, at best, believe that the
passage of the USA FREEDOM Act will do anything to curtail this. Indeed, the
USA FREEDOM Act does little to limit the scope of illegal and unconstitutional
surveillance, leaving significant loopholes that the intelligence agencies, have and
will undoubtedly continue to, exploit.
12

The second element of voluntary cessation—complete eradication of the effects of the alleged violation—are also purportedly met by the passage of the USA FREEDOM Act, as it clearly now—on paper— purports to prohibit the activity that Appellants seek to enjoin. However, it is clear that the rule of law means little to nothing to Appellees. In actuality, only permanent injunctive relief will do anything to curtail the ongoing and future instances of illegal and unconstitutional surveillance.
In ABA, the court held that the voluntary cessation doctrine did not apply when the “Clarification Act” expressly amended the definition of a creditor under the “FACT Act.” Id. at 646. The American Bar Association was challenging the inclusion of law firms and legal professionals as creditors under the FACT Act, but this challenge was mooted out when the definition of creditor was amended to not include legal professionals. Unlike the instant matter, in ABA there was no evidence that the FTC had engaged in a pattern and practice of disregarding the law, or that there was any risk that the FTC would continue to exercise its Extended Enforcement Policy to include legal professionals as creditors. As such, the Court held that the voluntary cessation exception did not apply. Here, however, Appellees have engaged in a longstanding pattern and practice of operating outside of the law and Constitution in its intelligence gathering efforts, and as such, the risk of the continued employment of the methods that Appellants seek to enjoin is
13

very real. The Appellees simply cannot show that there is no “reasonably expectation” that the conduct will not be repeated, as set forth by ABA. Appellees’ contention that they are not “free” to recommence broad collection of metadata and to query the collected data are disingenuous at best, given the enormous loopholes contained in the USA FREEDOM Act, and their history of simply ignoring the law. As such, Appellees and the District Court cannot rely on the mootness doctrine, and permanent injunctive relief from this Court is the only solution. This would preserve the status quo and provide the lower court oversight and contempt powers if the permanent injunction is violated. In effect, this would provide insurance that the Fourth Amendment and the law in general would now be respected and adhered to. II. THE DISTRICT COURT ERRED BY FINDING APPELLANTS DID
NOT HAVE STANDING TO PURSUE THEIR SECTION 215 AND PRISM CLAIMS The District Court further erred when it held that Appellants lacked standing to pursue expungement of their metadata collected pursuant to Section 215, as well as to challenge the collection of their personal information under Section 702 of the Foreign Intelligence Surveillance Act (“PRISM”). With regard to Appellants claim for expungement under Section 215, the District Court found that Appellants lacked standing simply because they had asked Appellees to comply with their duty to preserve evidence for the purpose of
14

litigation, which this Court deemed to have been a “self-inflicted harm.” App. ___. It is clear that the relief requested by Appellants was not for Appellees to immediately destroy the metadata collected under Section 215 - which would have been illegal destruction of evidence – and that Appellants did ask Appellees to simply preserve evidence for the sake of the litigation. This is not the “injury.” The actual injury occurred the moment when the Appellees collected Appellants’ metadata. No one forced Appellees to engage in a pattern and practice of unconstitutional surveillance and data collection. This is the actual injury, not the mere assertion of a party’s duty not to destroy evidence. If this logic held true, then just about no party would ever have standing, lest they allow the other side to destroy evidence.
The District Court further erred by holding that Appellants had not pled sufficient facts to show that their information had been targeted under the PRISM program. Under PRISM, the Government engaged in a surveillance program “targeting…persons reasonably believed to be located outside of the United States to acquire foreign intelligence information.” 50 U.S.C. § 1881(a). By statute, PRISM is subject to limitations, insofar as an acquisition authorized thereunder
(1) may not intentionally target any person known at the time of acquisition to be located in the United States; (2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States; (3) may not intentionally target a United States person
15

reasonably believed to be located outside the United States; (4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and (5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States. 50 U.S.C. § 1881(b). Indeed, Appellants have pled specific facts that strongly support Plaintiffs’ contention that their metadata was collected under the PRISM Program, and that it remains substantially at risk of such collection. For instance, Appellant Klayman has specifically pled that he has engaged in communications with persons in foreign regions and nations that are almost certainly to have been the target of the PRISM Program. For example, in Klayman II Appellant Klayman has alleged that he communicates via telephone and e-mail with, among others, (1) Mark Regev, the press secretary for Prime Minister Benjamin Netanyahu, (2) Ron Nachman, the former mayor of Ariel, Israel, (3) Danny Danon, a member of Israel’s legislative body who is currently serving as the Deputy Minister of Defense, and (4) Aaron Klein, a reporter who hosts a radio show on WABC in New York, who lives in Israel and whose show originates in Israel. ECF No. 106-1 ¶¶ 13-1. All of the persons listed above are highly influential members in or around the government of Israel, “a high-conflict area where the threat of terrorism is always present.” ECF No. 106-1 ¶ 12.
16

Furthermore, the Strange Appellants specifically allege that they “make telephone calls and send and receive e-mails to and from foreign countries and have received threatening e-mails and texts from overseas, in particular Afghanistan.” ECF No. 106-1 ¶ 19. Afghanistan is indisputably a “hot-bed” for terrorist activity.
Both Appellant Klayman and the Strange Appellants’ allegations meet the requirements set forth by Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (U.S. 2013). In Clapper, the Supreme Court held that the plaintiffs lacked Article III standing to challenge the PRISM Program because they could that show that the “threatened injury …[was] certainly impending to constitute injury in fact.” Id. at 1147. However, the majority in Clapper based its ruling on the plaintiffs’ broad statements that they “believe that some of the people with whom they exchange foreign intelligence information are likely targets of surveillance under [the PRISM Program]” because “they communicate by telephone and e-mail with people the Government ‘believes or believed to be associated with terrorist organizations,’ ‘people located in geographic areas that are a special focus’ of the Government's counterterrorism or diplomatic efforts, and activists who oppose governments that are supported by the United States Government.” Id. at 1145. On the other hand, here, Appellants have set forth specific persons that they contacted in high-risk terrorism regions in the world, particularly in the Middle East and
17

Central Asia. As the dissent correctly, and ably points out, plaintiffs in Clapper
and by extension, Appellants here have standing to challenge the PRISM Program.
The threatened injury in Clapper, and here, clearly go far beyond
“speculative,” as the Government Defendants would have this Court believe.
“Several considerations, based upon the record along with commonsense
inferences, convince me that there is a very high likelihood that Government,
acting under the authority of [the PRISM Program], will intercept at least some of
the communications just described.” Id. at 1157 (Dissent).
First, the plaintiffs have engaged, and continue to engage, in electronic communications of a kind that the 2008 amendment, but not the prior Act, authorizes the Government to intercept…. Second, the plaintiffs have a strong motive to engage in, and the Government has a strong motive to listen to, conversations of the kind described…. Third, the Government's past behavior shows that it has sought, and hence will in all likelihood continue to seek, information about alleged terrorists and detainees through means that include surveillance of electronic communications…. Fourth, the Government has the capacity to conduct electronic surveillance of the kind at issue. To some degree this capacity rests upon technology available to the Government.
Id. at 1158-59 (Dissent). These factors are all clearly applicable to the facts at bar,
and as such, the threatened injury—that the Government will continue, as it
demonstrably has in the past, to harvest Appellants’ data under the PRISM
Program—clearly rises about the “speculative” level. In effect, the past is a
prologue for Appellees’ continuing illegal and unconstitutional conduct, as they
18

wrongly believe they are exempt, as intelligence agencies which engage in spying, from the law!
The District Court erroneously sides with Appellees’ primary assertion in this regard that Appellants cannot possibly show that they communicated with targets of the PRISM Program because the targets of the PRISM Program are classified. App. ___. Thus, regardless of the amount compelling evidence set forth by Appellants that their communications were collected under the PRISM Program, they would still never be able to demonstrate that their information was actually collected because the information is deemed classified, by the Appellees themselves. The inherent flaw in this line of reasoning is readily apparent. Regardless of whether this information is classified, the District Court and Judge Leon, who possesses the necessary security clearance, could have conducted an in camera review to determine whether Appellants’ information was collected. Appellees’ refusal to do so and consent to this secure method of discovery strongly creates an evidentiary inference that this information was, in fact, collected. Their blanket denials in the past have proved to be false.
CONCLUSION For the foregoing reasons, the District Court’s decision should be reversed, and Appellants awarded costs. As the District Court itself has recognized, this case involves a matter at the pinnacle of national importance. The intelligence agency
19

Appellees have for far too long operated unchecked by any moral code, much less

the law or Constitution. In allowing them to do so, the courts as well as the

legislators have, in effect, “created a monster” that continues to grow in power. At

this point, there is not even any sense disputing the fact that Appellees are engaged

in massive scale unconstitutional and illegal surveillance of millions of Americans,

as it has been widely reported in nearly every news outlet. Yet, they are still

allowed to operate with impunity.

This Court must intervene. The only solution is permanent injunctive relief,

so that policymakers and decisionmakers may finally be held to account for their

illegal misconduct. It has already been shown that a mere change in the law is

entirely ineffective. Our nation was built on a system of checks and balances. This

Court must perform its duty to reasonably “check” the intelligence agencies before

it is too late.

Dated: September 4, 2018

Respectfully Submitted,

/s/ Larry Klayman_______

Larry Klayman, Esq. Klayman Law Group, P.A. 2020 Pennsylvania Ave. N.W. Suite 800 Washington, D.C. 20006 Tel: (310) 595-0800 Email: leklayman@gmail.com

Attorney for Plaintiffs-Appellants

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CERTIFICATE OF COMPLIANCE 1. This document complies with the type-volume limit of Fed. R. App. P. 32(a)(7)(B)(i) because, excluding the parts of the document exempted by Fed. R. App. P. 32(f) this document contains 4,653 words. 2. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Microsoft Word 15.28 in 14-point Times New Roman.

Dated: September 4, 2018

/s/ Larry Klayman_______

21

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed electronically and served through the court’s ECF system to all counsel of record or parties listed below on September 4, 2018
/s/ Larry Klayman_______
22

 
 USCA Case #17-5281 Document #1771929

Filed: 02/05/2019 Page 1 of 4

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 17-5281
LARRY ELLIOTT KLAYMAN AND CHARLES STRANGE, APPELLANTS

September Term, 2018
FILED ON: FEBRUARY 5, 2019

MARY ANN STRANGE, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, APPELLEE

v.

BARACK HUSSEIN OBAMA, ET AL., APPELLEES

Consolidated with 17-5282
Appeals from the United States District Court for the District of Columbia (No. 1:13-cv-00851) (No. 1:13-cv-00881)

Before: ROGERS, SRINIVASAN, and PILLARD, Circuit Judges.
J U D G M E N T
The court considered this appeal on the record from the United States District Court for the District of Columbia, and on the briefs and arguments of the parties. The court has given the issues full consideration and has determined that they do not warrant a published opinion. See D.C. CIR. R. 36(d). It is hereby
ORDERED AND ADJUDGED that the judgment of the District Court be AFFIRMED.
Appellants are individuals who claim that the United States government has spied on them. They challenge as unconstitutional three separate forms of surveillance: bulk telephony metadata collection under Section 215 of the USA PATRIOT Act of 2001, codified as amended at 50 U.S.C. § 1861; bulk electronic metadata collection under Section 402 of the Foreign Intelligence Surveillance Act (FISA), codified as amended at 50 U.S.C. § 1842; and the so-called PRISM program for targeted collection under Section 702 of FISA, codified as amended at 50 U.S.C. § 1881a.

1

USCA Case #17-5281 Document #1771929

Filed: 02/05/2019 Page 2 of 4

When Appellants filed suit in 2013, Section 215 of the PATRIOT Act authorized the government to seek orders from the Foreign Intelligence Surveillance Court (FISC) “requiring the production of any tangible things . . . for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” 50 U.S.C. § 1861(a)(1) (2012). Pursuant to that authority, the government established a bulk telephony metadata collection program, indiscriminately collecting telephony metadata from telephone service providers and storing it for up to five years. NSA analysts could query the collected metadata using selectors as to which there was a reasonable, articulable suspicion that the selectors were associated with terrorists abroad.
In 2015, Congress enacted significant changes to the governing statutory regime. See USA FREEDOM Act of 2015, Pub. L. No. 114-23, §§ 101–107, 129 Stat. 268, 269–73. Unlike its predecessor, the provision that replaced Section 215 does not authorize bulk collection, instead requiring FISC applications and orders to contain specific selectors. See 50 U.S.C. § 1861(b)(2)(A), (c)(3). The FISC may issue an order only if it finds that there are reasonable grounds to believe the targeted metadata are relevant to a qualifying investigation and, in the case of an order for production of call detail records on an ongoing basis, “there is a reasonable, articulable suspicion that [the] specific selection term is associated with a foreign power [or its agent] engaged in international terrorism.” Id. § 1861(b)(2)(B)–(C).
From 2004 until December 2011, the government also operated a bulk electronic metadata collection program under Section 402 of FISA, known as the “pen register, trap and trace” provision. But by the end of 2011, the program had been discontinued and all the metadata gathered thereunder had been destroyed. Statutory amendments since 2011 have altered the government’s ability to revive the program; specifically, the statute now requires collection to be tethered to a specific selector. See 50 U.S.C. § 1842(c)(3).
Section 702 of FISA authorizes targeted content-collection by the government of non-U.S. persons located outside the United States. See 50 U.S.C. § 1881a(a)–(b). If they wish to exercise this power, the Attorney General and the Director of National Intelligence must certify to the FISC that the surveillance adheres to certain minimization procedures and substantive guidelines. See 50 U.S.C. § 1881a(h)(2). Surveillance under that authority is ongoing pursuant to a program known as PRISM.
Appellants brought an action seeking, inter alia, an injunction prohibiting future surveillance, declaratory relief, and expungement of any metadata in the government’s possession collected from past surveillance. The district court granted the defendants’ motion to dismiss, holding that the challenge to Section 215 surveillance was moot and that Appellants lacked standing to pursue their Section 402, PRISM, and expungement claims. Appellants now appeal.
Appellants first seek an injunction and declaratory relief on the basis that the bulk collection of telephony metadata under Section 215 is unconstitutional. That claim is moot. The telephony metadata collection program was terminated during the pendency of the case. And the “voluntary cessation” doctrine does not save the claim from dismissal on mootness grounds because an act of Congress, not the volition of the defendants, compelled the termination of the program. See ABA v. FTC, 636 F.3d 641, 648 (D.C. Cir. 2011).

2

USCA Case #17-5281 Document #1771929

Filed: 02/05/2019 Page 3 of 4

Appellants contend that the new statutory regime is riddled with loopholes that in effect permit the government to continue wide-scale surveillance. Any cessation, the reasoning goes, is therefore voluntary rather than statutorily compelled. But the USA FREEDOM Act specifically forbids the kind of bulk collection challenged in this suit. See 50 U.S.C. § 1861(b)(2)(A), (c)(3). The cessation of the program therefore was not voluntary.
Appellants also lack standing to seek expungement of metadata previously collected under Section 215. The five-year cap on data retention under Section 215 yields to accommodate the government’s evidence-preservation orders in litigation challenging the collection program. The data covered by the preservation orders cannot be queried by NSA analysts and is subject to extensive minimization procedures. Importantly, it must be discarded after the evidencepreservation obligations expire. Appellants acknowledge that the government must preserve the metadata until the termination of litigation, and neither party contests that the government must dispose of the metadata once litigation concludes. Accordingly, the district court held that Appellants lacked standing because the injury complained of—the retention of the data—is selfinflicted and not fairly traceable to the government’s conduct. Appellants dispute that holding, arguing that their injury is not the preservation of the metadata but rather its alleged past collection. But if Appellants’ injury is only the initial collection of the metadata, as they argue, that injury is not redressable by the relief they seek (expungement). The upshot therefore is the same: Appellants lack standing to pursue the claim.
Similarly, Appellants lack standing to challenge the Section 402 electronic metadata collection. The unrefuted evidence shows that the government terminated the challenged program and disposed of the collected electronic metadata before the present suit was filed. There is no risk that the government will resume its old ways; the USA FREEDOM Act amended Section 402 to forbid the reinstatement of bulk electronic metadata collection. See 50 U.S.C. § 1842(c)(3). Appellants therefore fail to show injury in connection with their claim concerning Section 402, with the result that they cannot establish standing.
Nonetheless, Appellants urge the court to address their claims because they speculate that the government might have secretly continued its bulk collection in violation of the amended statute. The government, however, produced uncontroverted evidence that the challenged programs had ceased, which the district court credited. Appellants provide no reason to doubt that finding, let alone enough evidence showing it was clear error.
Finally, as the district court held, Appellants lack standing to challenge the targeted collection program known as PRISM. The Supreme Court’s decision in Clapper v. Amnesty International USA, 568 U.S. 398 (2013), involved a challenge to the statute that provides the authority for the PRISM program. Clapper establishes that Appellants cannot rest their alleged injury on bare speculation that their contacts abroad will be targeted simply because they reside “in geographic areas” that they believe to be “a special focus” of the U.S. government. Id. at 406. Instead, they must allege injury that is “certainly impending” without relying on a “highly attenuated chain of possibilities.” Id. at 410. Appellants here allege no more than that they communicate with various individuals in countries Appellants imagine might attract government surveillance. They provide no more specific reason to suspect their contacts are targets of the PRISM program or that their own communications will be collected. They therefore have failed to allege the kind of actual or imminent injury required by Clapper.
3

USCA Case #17-5281 Document #1771929

Filed: 02/05/2019 Page 4 of 4

In sum, Appellants lack standing to challenge the PRISM and Section 402 programs and to seek expungement of metadata collected under Section 215, and their other challenges to the Section 215 program are moot. The district court’s dismissal therefore is affirmed.
Pursuant to D.C. CIR. R. 36(d), this disposition will not be published. The Clerk is directed to withhold issuance of the mandate until seven days after resolution of any timely petition for rehearing or rehearing en banc. See FED. R. APP. P. 41(b); D.C. CIR. R. 41(a)(1).
Per Curiam
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Ken Meadows Deputy Clerk

4

 
 Case: 1:13-cv-881 As of: 11/29/2018 12:48 PM EST 1 of 24
APPEAL,CLOSED,JURY,TYPE−J
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:13−cv−00881−RJL

KLAYMAN et al v. OBAMA et al Assigned to: Judge Richard J. Leon Demand: $20,000,000,000 Cases: 1:13−cv−00851−RJL
1:14−cv−00092−RJL Case in other court: 14−05005
14−05017 USCA, 14−05208 17−05282 Cause: 28:1331 Federal Question: Bivens Act Plaintiff LARRY KLAYMAN
Plaintiff MICHAEL FERRARI
Plaintiff CHARLES STRANGE
Plaintiff MATT GARRISON
Plaintiff J.J. LITTLE & ASSOCIATES, P.C.
Plaintiff MARRY ANN STRANGE

Date Filed: 06/11/2013 Date Terminated: 11/21/2017 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Larry E. Klayman FREEDOM WATCH, INC. 2020 Pennsylvania Avenue, NW Suite 345 Washington, DC 20006 (301) 595−0800 Email: leklayman@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Larry E. Klayman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Larry E. Klayman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Larry E. Klayman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Larry E. Klayman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Larry E. Klayman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.

Case: 1:13-cv-881 As of: 11/29/2018 12:48 PM EST 2 of 24

Defendant
ERIC H. HOLDER, JR. Individually and in his professional capacity as U.S. Attorney General TERMINATED: 09/21/2016

represented by Bryan Scott Dearinger U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch P.O. Box 883, Benjamin Franklin Station Washington, DC 20044 (202) 514−3489 Fax: (202) 616−8202 Email: bryan.dearinger@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

James J. Gilligan U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 514−3358 Fax: (202) 616−8470 Email: james.gilligan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

James R. Whitman U.S. DEPARTMENT OF JUSTICE Civil Division Ben Franklin Station P.O. Box 7146 Washington, DC 20044 (202) 616−4169 Fax: (202) 616−4314 Email: james.whitman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia A. Berman U.S. DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 616−8480 Fax: (202) 307−0442 Email: julia.berman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Berman UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Room 7132 Washington, DC 20530 (202) 514−2205 Fax: (202) 616−8470 Email: marcia.berman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rodney Patton U.S. DEPARTMENT OF JUSTICE Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530

Case: 1:13-cv-881 As of: 11/29/2018 12:48 PM EST 3 of 24

(202) 305−7919 Fax: (202) 616−8470 Email: rodney.patton@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant BARACK HUSSEIN OBAMA, II

represented by Bryan Scott Dearinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia A. Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rodney Patton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
KEITH B. ALEXANDER Individually and hi his professional capacity, Director of the National Security Agency TERMINATED: 09/21/2016

represented by Bryan Scott Dearinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia A. Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rodney Patton

Case: 1:13-cv-881 As of: 11/29/2018 12:48 PM EST 4 of 24

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant NATIONAL SECURITY AGENCY

represented by Bryan Scott Dearinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia A. Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rodney Patton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
DEPARTMENT OF JUSTICE OF THE UNITED STATES

represented by Bryan Scott Dearinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia A. Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rodney Patton (See above for address) LEAD ATTORNEY

Case: 1:13-cv-881 As of: 11/29/2018 12:48 PM EST 5 of 24
ATTORNEY TO BE NOTICED
Defendant FACEBOOK
Defendant MARK ZUCKERBERG
Defendant GOOGLE INC.
Defendant LARRY PAGE
Defendant YOUTUBE, LLC
Defendant SALAR KAMANGAR
Defendant APPLE
Defendant TIMOTHY COOK
Defendant MICROSOFT
Defendant STEVE BALLMER
Defendant SKYPE
Defendant TONY BATES
Defendant AOL
Defendant TIM ARMSTRONG
Defendant YAHOO! INC.
Defendant MARISSA MEYER
Defendant PALALK
Defendant

Case: 1:13-cv-881 As of: 11/29/2018 12:48 PM EST 6 of 24

JASON KATZ

Defendant AT&T

Defendant RANDALL L. STEPHENSON

Defendant
SPRINT COMMUNICATIONS COMPANY

Defendant DANIEL HEESE

Defendant
JEFFREY JAMES LITTLE also known as J.J.

represented by Larry E. Klayman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
ROGER VINSON Individually and in his professional capacity, Judge, U.S. Foreign Intelligence Surveillance Court TERMINATED: 09/21/2016

represented by James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
JAMES CLAPPER Individually and in his professional capacity, Director of National Intelligence TERMINATED: 09/21/2016

represented by James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rodney Patton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
JOHN O. BRENNAN Individually and in his professional capacity, Director of the Central Intelligence Agency TERMINATED: 09/21/2016

represented by James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rodney Patton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:13-cv-881 As of: 11/29/2018 12:48 PM EST 7 of 24

Defendant JAMES COMEY Individually and in his professional capacity, Director of the Federal Bureau of Investigation TERMINATED: 09/21/2016
Defendant NATIONAL SECURITY AGENCY
Defendant FEDERAL BUREAU OF INVESTIGATION
Defendant CENTRAL INTELLIGENCE AGENCY
Movant STEVEN D. LEONARD Movant DAVID ANDREW CHRISTENSON TERMINATED: 07/30/2014
Movant

represented by James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James R. Whitman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James J. Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DAVID ANDREW CHRISTENSON P.O. Box 9063 Miramar Beach, FL 32550 504−715−3086 PRO SE

Case: 1:13-cv-881 As of: 11/29/2018 12:48 PM EST 8 of 24

TIMOTHY DEMITRI BROWN TERMINATED: 07/30/2014

represented by TIMOTHY DEMITRI BROWN R10979−035 FLORENCE ADMAX U.S. PENITENTIARY Inmate Mail/Parcels PO BOX 8500 FLORENCE, CO 81226 PRO SE

Date Filed 06/12/2013 06/12/2013 06/12/2013 06/12/2013 06/12/2013 06/14/2013 09/30/2013 10/08/2013
10/09/2013
10/09/2013
10/29/2013
10/29/2013 10/29/2013

# Docket Text
1 COMPLAINT against All Plaintiffs with Jury Demand ( Filing fee $ 400 receipt number 0090−3357864) filed by LARRY E. KLAYMAN. (Attachments: # 1 Civil Cover Sheet Civil Cover Sheet)(Klayman, Larry) (Entered: 06/12/2013)
Case Assigned to Judge Richard J. Leon. (ls, ) (Entered: 06/12/2013)
2 CIVIL COVER SHEET (Amended) by LARRY E. KLAYMAN re 1 Complaint filed by LARRY E. KLAYMAN. Related document: 1 Complaint filed by LARRY E. KLAYMAN.(Klayman, Larry) (Entered: 06/12/2013)
3 NOTICE OF RELATED CASE by All Plaintiffs. Case related to Case No. 13−cv−851. (Klayman, Larry) (Entered: 06/12/2013)
4 STANDING ORDER. Signed by Judge Richard J. Leon on 6/12/13. (lcrjl1) (Entered: 06/12/2013)
5 NOTICE of Appearance by James R. Whitman on behalf of DEPARTMENT OF JUSTICE OF THE UNITED STATES, NATIONAL SECURITY AGENCY (Whitman, James) (Entered: 06/14/2013)
6 MOTION for Extension of Time to Certify Class Action by LARRY E. KLAYMAN (Attachments: # 1 Text of Proposed Order)(Klayman, Larry) (Entered: 09/30/2013)
7 REQUEST FOR SUMMONS TO ISSUE by LARRY E. KLAYMAN re 1 Complaint filed by LARRY E. KLAYMAN. Related document: 1 Complaint filed by LARRY E. KLAYMAN. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons, # 10 Summons, # 11 Summons, # 12 Summons, # 13 Summons, # 14 Summons, # 15 Summons, # 16 Summons, # 17 Summons, # 18 Summons, # 19 Summons, # 20 Summons, # 21 Summons, # 22 Summons, # 23 Summons, # 24 Summons, # 25 Summons, # 26 Summons, # 27 Summons)(Klayman, Larry) (Entered: 10/08/2013)
8 ELECTRONIC SUMMONS (7) Issued as to KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II, U.S. Attorney and U.S. Attorney General (znmw, ) (Entered: 10/09/2013)
9 Electronic Summons (21) Issued as to AOL, APPLE, TIM ARMSTRONG, AT&T, STEVE BALLMER, TONY BATES, TIMOTHY COOK, FACEBOOK, GOOGLE INC., DANIEL HEESE, SALAR KAMANGAR, JASON KATZ, MARISSA MEYER, MICROSOFT, LARRY PAGE, SKYPE, SPRINT COMMUNICATIONS COMPANY, RANDALL L. STEPHENSON, YAHOO! INC., YOUTUBE, LLC, MARK ZUCKERBERG. (Attachments: # 1 Notice and Consent)(znmw, ) (Entered: 10/09/2013)
10 MOTION for Preliminary Injunction by LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 −− Affidavit of Larry Klayman, # 3 Exhibit 2 −− Affidavit of Charles Strange, # 4 Text of Proposed Order)(Klayman, Larry) (Entered: 10/29/2013)
Minute Order. Scheduling Conference set for 10/31/2013 at 03:45 PM in Courtroom 18 before Judge Richard J. Leon. (lcrjl1, ) (Entered: 10/29/2013)
11 MOTION for Extension of Time to Certify Class Action by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Text of Proposed Order)(Klayman, Larry) (Entered: 10/29/2013)

Case: 1:13-cv-881 As of: 11/29/2018 12:48 PM EST 9 of 24

10/30/2013 10/30/2013 10/30/2013 10/30/2013 10/30/2013 10/30/2013 10/31/2013 10/31/2013 10/31/2013 10/31/2013 11/01/2013 11/06/2013 11/06/2013 11/08/2013

12 MOTION For Leave of Court To Take FRCP Rule 30(B)(6) Deposition re 10 MOTION for Preliminary Injunction by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1 −− Government's Opposition to ACLU's Motion for Preliminary Injunction, # 2 Text of Proposed Order)(Klayman, Larry) (Entered: 10/30/2013)
13 MOTION for Extension of Time to File Response/Reply as to 10 MOTION for Preliminary Injunction by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II (Attachments: # 1 Text of Proposed Order)(Gilligan, James) (Entered: 10/30/2013)
14 MOTION For Leave of Court to Appear Telephonically re Set Hearings by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Text of Proposed Order)(Klayman, Larry) (Entered: 10/30/2013)
15 NOTICE of Consent by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE re 14 MOTION For Leave of Court to Appear Telephonically re Set Hearings (Klayman, Larry) (Entered: 10/30/2013)
MINUTE ORDER denying 14 Motion for Leave to Appear Telephonically. It is hereby ORDERED that plaintiffs' Motion for Leave to Appear Telephonically at the Scheduling Conference set for 10/31/2013 at 03:45 PM in Courtroom 18 before Judge Richard J. Leon is DENIED. Signed by Judge Richard J. Leon on 10/30/2013. (lcrjl1, ) (Entered: 10/30/2013)
16 MOTION to Continue Status Conference Concerning Preliminary Injunction by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Text of Proposed Order)(Klayman, Larry) (Entered: 10/30/2013)
MINUTE ORDER denying 16 Motion to Continue. It is hereby ORDERED that plaintiffs' Motion to Continue the Scheduling Conference set for 10/31/2013 at 03:45 PM in Courtroom 18 before Judge Richard J. Leon is DENIED. Signed by Judge Richard J. Leon on 10/31/2013. (lcrjl1, ) (Entered: 10/31/2013)
17 MOTION for Reconsideration re Order on Motion to Continue, by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Klayman, Larry) (Entered: 10/31/2013)
MINUTE ORDER denying 17 Motion for Reconsideration. It is hereby ORDERED that Plaintiffs' Motion for Reconsideration of 16 Plaintiffs' Motion to Continue is DENIED. Signed by Judge Richard J. Leon on 10/31/2013. (lcrjl1, ) (Entered: 10/31/2013)
Minute Entry: Status Conference held on 10/31/2013 before Judge Richard J. Leon: Plaintiff counsel not present. Transcript of the hearing will be sent to plaintiff counsel. Response to Preliminary Injunction Motion due by 11/11/2013. Reply due by 11/14/2013. Oral arugment set for 11/18/2013 at 11:30 AM in Courtroom 18 before Judge Richard J. Leon. (Court Reporter Patty Gels) (tb, ) (Entered: 11/01/2013)
18 MOTION For Leave to File Supplemental Declaration re 10 MOTION for Preliminary Injunction by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1 −− Declaration of Professor Edward Felten, # 2 Exhibit 2 −− Washington Post Article, # 3 Text of Proposed Order)(Klayman, Larry) (Entered: 11/01/2013)
MINUTE ORDER granting 18 MOTION for Leave to File Supplemental Declaration. It is hereby ORDERED that plaintiffs' motion is GRANTED and the Declaration of Professor Edward W. Felten is accepted for filing. Signed by Judge Richard J. Leon on 11/6/2013. (lcrjl1, ) (Entered: 11/06/2013)
19 Supplemental Declaration re 10 MOTION for Preliminary Injunction by LARRY E. KLAYMAN. (znmw, ) (Entered: 11/08/2013)
20 Unopposed MOTION for Leave to File Excess Pages in the Combined Opposition to Plaintiffs' Preliminary Injunction Motions by KEITH B. ALEXANDER,

Case: 1:13-cv-881 As of: 11/29/2018 12:48 PM EST 10 of 24

11/08/2013 11/12/2013
11/12/2013 11/12/2013
11/12/2013 11/12/2013 11/13/2013 11/14/2013 11/15/2013 11/15/2013 11/17/2013

DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 11/08/2013)
MINUTE ORDER granting 20 Motion for Leave to File Excess Pages. It is hereby ORDERED that the motion is GRANTED and that the page limit for Government Defendants' combined opposition is enlarged from 45 to 65 pages. Signed by Judge Richard J. Leon on 11/8/2013. (lcrjl1, ) (Entered: 11/08/2013)
21 Memorandum in opposition to re 10 MOTION for Preliminary Injunction filed by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II. (Attachments: # 1 Declaration (Declaration of James J. Gilligan), # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Text of Proposed Order)(Gilligan, James) (Entered: 11/12/2013)
22 Unopposed MOTION For Leave To File Reply Brief With Extended Pages And A Supplemental Declaration by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1 −− Supplemental Declaration of Professor Edward Felton, # 2 Text of Proposed Order)(Klayman, Larry) (Entered: 11/12/2013)
MINUTE ORDER granting 22 Motion for Leave to File Reply Brief with Extended Pages and a Supplemental Declaration. It is hereby ORDERED that the motion is GRANTED and that the page limit for Plaintiffs' reply is enlarged from 25 to 50 pages; and it is further ordered that the Supplemental Declaration of Professor Edward W. Felten is accepted for filing. Signed by Judge Richard J. Leon on 11/12/2013. (lcrjl1, ) (Entered: 11/12/2013)
23 MOTION for Extension of Time to Certify Class Action by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Text of Proposed Order)(Klayman, Larry) (Entered: 11/12/2013)
24 Supplemental Declaration of Dr. Edward Felton by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE. (jf, ) (Entered: 11/13/2013)
25 MOTION for Extension of Time to File Response/Reply to Plaintiffs' Two Preliminary Injunction Motions by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 11/13/2013)
26 REPLY to opposition to motion re 10 MOTION for Preliminary Injunction filed by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE. (Attachments: # 1 Exhibit 1−−, # 2 Exhibit 2 −− Supplemental Affidavit of Larry Klayman, # 3 Exhibit 3 −− NSA Touhy Request, # 4 Text of Proposed Order)(Klayman, Larry) (Entered: 11/15/2013)
MINUTE ORDER granting, nunc pro tunc, 25 Government Defendants' Motion for Extension of Time to File Combined Opposition to Plaintiffs' Two Motions for Preliminary Injunctions. Signed by Judge Richard J. Leon on 11/15/2013. (lcrjl1, ) (Entered: 11/15/2013)
27 NOTICE of Filing of Amended Proposed Order by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE re 10 MOTION for Preliminary Injunction (Attachments: # 1 Certificate of Service)(Klayman, Larry) (Entered: 11/15/2013)
28 MOTION to Amend/Correct 1 Complaint by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1 −− Amended Complaint, # 2 Text of Proposed Order)(Klayman, Larry) (Entered: 11/17/2013)

Case: 1:13-cv-881 As of: 11/29/2018 12:48 PM EST 11 of 24

11/17/2013 11/23/2013 11/23/2013 11/23/2013
11/23/2013 11/25/2013 11/25/2013 11/26/2013
11/26/2013 11/26/2013

29 MOTION for Leave to File Supplemental Affidavit re 10 MOTION for Preliminary Injunction by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1 −− Affidavit of David Siler, # 2 Text of Proposed Order)(Klayman, Larry) (Entered: 11/17/2013)
MINUTE ORDER granting 28 Plaintiffs' Motion for Leave to File Amended Complaint. It is hereby ORDERED that the motion is GRANTED and that Plaintiffs' Amended Complaint is accepted for filing. Signed by Judge Richard J. Leon on 11/23/2013. (lcrjl1, ) (Entered: 11/23/2013)
MINUTE ORDER granting 29 Plaintiffs' Motion for Leave to File Supplemental Affidavit. It is hereby ORDERED that the motion is GRANTED and that the Supplemental Affidavit of David M. Siler is accepted for filing. Signed by Judge Richard J. Leon on 11/23/2013. (lcrjl1, ) (Entered: 11/23/2013)
30 AMENDED COMPLAINT against KEITH B. ALEXANDER, AOL, APPLE, TIM ARMSTRONG, AT&T, STEVE BALLMER, TONY BATES, TIMOTHY COOK, DEPARTMENT OF JUSTICE OF THE UNITED STATES, FACEBOOK, GOOGLE INC., DANIEL HEESE, ERIC H. HOLDER, JR, SALAR KAMANGAR, JASON KATZ, MARISSA MEYER, MICROSOFT, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II, LARRY PAGE, PALALK, SKYPE, SPRINT COMMUNICATIONS COMPANY, RANDALL L. STEPHENSON, YAHOO! INC., YOUTUBE, LLC, MARK ZUCKERBERG with Jury Demand filed by LARRY E. KLAYMAN, MICHAEL FERRARI, CHARLES STRANGE, MATT GARRISON.(znmw, ) (Entered: 11/25/2013)
31 AFFIDAVIT of David M. Siler by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE. (znmw, ) (Entered: 11/25/2013)
32 NOTICE of Filing of Affidavits by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1 −− Transcript of ACLU v. Clapper Proceeding)(Klayman, Larry) (Entered: 11/25/2013)
33 MOTION for Extension of Time to Certify Class Action by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Text of Proposed Order)(Klayman, Larry) (Entered: 11/25/2013)
34 TRANSCRIPT OF PROCEEDINGS before Judge Richard J. Leon held on 11/18/13; Date of Issuance:11/26/13. Court Reporter/Transcriber Patty Gels, Telephone number 202−354−3236, Court Reporter Email Address : Patty_Gels@dcd.uscourts.gov.<P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.<P></P> Redaction Request due 12/17/2013. Redacted Transcript Deadline set for 12/27/2013. Release of Transcript Restriction set for 2/24/2014.(Gels, Patty) (Entered: 11/26/2013)
35 NOTICE of Filing of Bench Briefs by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1 −− Bench Brief on Jurisdiction, # 2 Exhibit 2 −− Bench Brief on Admissibility of Snowden Statements)(Klayman, Larry) (Entered: 11/26/2013)
36 SUPPLEMENTAL MEMORANDUM to re 10 MOTION for Preliminary Injunction (Government Defendants' Supplemental Brief in Opposition to Plaintiffs' Motions for Preliminary Injunctions) filed by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II. (Attachments: # 1 Exhibit A)(Gilligan, James) (Entered: 11/26/2013)

Case: 1:13-cv-881 As of: 11/29/2018 12:48 PM EST 12 of 24

11/26/2013 12/02/2013 12/04/2013 12/16/2013 12/16/2013
12/16/2013 12/16/2013 12/16/2013 12/17/2013 01/03/2014 01/06/2014 01/06/2014 01/08/2014

37 MEMORANDUM by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE. (Attachments: # 1 Exhibit 1 −− Binder Part 1, # 2 Exhibit 1 −− Binder Part 2, # 3 Exhibit 2 −− Gov't Opposition in In Re Epic)(Klayman, Larry) (Entered: 11/26/2013)
38 MOTION for Leave to Supplement the Record by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Klayman, Larry) (Entered: 12/02/2013)
39 Memorandum in opposition to re 38 MOTION for Leave to Supplement the Record filed by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II. (Attachments: # 1 Text of Proposed Order)(Gilligan, James) (Entered: 12/04/2013)
40 MEMORANDUM AND OPINION. Signed by Judge Richard J. Leon on 12/16/13. (tb, ) (Entered: 12/16/2013)
41 ORDER: For the reasons set forth in the Memorandum Opinion entered this date, it is hereby ordered that the 10 Motion for Preliminary Injunction is DENIED; it is further ordered that the Motion for Preliminary Injunction in Klayman v. Obama, Civil Action 13−851 is GRANTED as to plaintiff's Larry Klayman and Charles Strange and DENIED as to plaintiff Mary Ann Strange; and it is further ordered that this Order is STAYED pending appeal. Signed by Judge Richard J. Leon on 12/16/13. SEE ORDER FOR MORE DETAILS. (tb, ) (Entered: 12/16/2013)
42 NOTICE of Appearance by Marcia Berman on behalf of KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II (Berman, Marcia) (Entered: 12/16/2013)
43 MOTION for Extension of Time to Respond to Plaintiffs' Amended Complaints in Light of Memorandum Opinion Issued Today by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II (Attachments: # 1 Text of Proposed Order)(Berman, Marcia) (Entered: 12/16/2013)
44 ENTERED IN ERROR.....MOTION for Extension of Time by KEITH B. ALEXANDER, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II, U.S. DEPARTMENT OF JUSTICE, DEPARTMENT OF JUSTICE OF THE UNITED STATES (Attachments: # 1 Text of Proposed Order)(rdj) Modified on 12/17/2013 (rdj). (Entered: 12/17/2013)
45 MOTION for Extension of Time to Certify Class Action by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Text of Proposed Order)(Klayman, Larry) (Entered: 12/17/2013)
46 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 40 Memorandum & Opinion, 41 Order on Motion for Preliminary Injunction,, by KEITH B. ALEXANDER, ERIC H. HOLDER, JR, BARACK HUSSEIN OBAMA, II, DEPARTMENT OF JUSTICE OF THE UNITED STATES, NATIONAL SECURITY AGENCY. Fee Status: No Fee Paid. Parties have been notified. (Berman, Marcia) (Entered: 01/03/2014)
47 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the fee was an Appeal by the Government re 46 Notice of Appeal to DC Circuit Court,. (znmw, ) (Entered: 01/06/2014)
48 MOTION for Leave to File Amicus Brief by STEVEN D. LEONARD (Attachments: # 1 Exhibit Amicus Brief)(jf, ) (Entered: 01/06/2014)
49 MOTION to Stay Proceedings Against the Government Defendants Pending Appeal of Preliminary Injunction by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II (Attachments: # 1 Text of Proposed Order)(Gilligan, James) (Entered: 01/08/2014)

Case: 1:13-cv-881 As of: 11/29/2018 12:48 PM EST 13 of 24

01/10/2014 01/10/2014
01/10/2014
01/13/2014 01/15/2014
01/15/2014 01/21/2014 01/21/2014 01/21/2014 01/22/2014 01/24/2014 01/30/2014 01/30/2014 02/03/2014 02/10/2014

USCA Case Number 14−5005 for 46 Notice of Appeal to DC Circuit Court, filed by NATIONAL SECURITY AGENCY, KEITH B. ALEXANDER, ERIC H. HOLDER, JR., DEPARTMENT OF JUSTICE OF THE UNITED STATES, BARACK HUSSEIN OBAMA, II. (jf, ) (Entered: 01/10/2014)
50 NOTICE OF CROSS APPEAL as to 40 Memorandum & Opinion, 41 Order on Motion for Preliminary Injunction,, by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE. Filing fee $ 505, receipt number 0090−3588436. Fee Status: Fee Paid. Parties have been notified. (Klayman, Larry) (Entered: 01/10/2014)
51 MOTION to Dismiss (The Government Defendants' Partial Motion To Dismiss and Memorandum in Support) by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II (Attachments: # 1 Text of Proposed Order)(Gilligan, James) (Entered: 01/10/2014)
52 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 50 Notice of Cross Appeal,. (znmw, ) (Entered: 01/13/2014)
53 Memorandum in Opposition re 49 MOTION to Stay Proceedings Against the Government Defendants Pending Appeal of Preliminary Injunction filed by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE. (Attachments: # 1 Exhibit 1 − Transcript of Oct. 31, 2013, # 2 Exhibit 2 − Transcript of Nov. 18, 2013)(Klayman, Larry) Modified event title on 1/16/2014 (znmw, ). (Entered: 01/15/2014)
54 NOTICE Praecipe Regarding Class Actions by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Klayman, Larry) (Entered: 01/15/2014)
MINUTE ORDER denying as moot 12 Motion for Leave to Take Deposition. It is hereby ORDERED that the motion is DENIED as moot. Signed by Judge Richard J. Leon on 1/21/2014. (lcrjl1, ) (Entered: 01/21/2014)
MINUTE ORDER denying as moot 13 Government Defendants' Motion for Extension of Time to File Response to Plaintiffs' Motions for Preliminary Injunctions. It is hereby ORDERED that the motion is DENIED as moot. Signed by Judge Richard J. Leon on 1/21/2014. (lcrjl1, ) (Entered: 01/21/2014)
MINUTE ORDER denying 38 Motion for Leave to Supplement the Record. It is hereby ORDERED that the motion is DENIED. Signed by Judge Richard J. Leon on 1/21/2014. (lcrjl1, ) (Entered: 01/21/2014)
Set/Reset Hearings: Status Conference set for 2/3/2014 02:30 PM in Courtroom 18 before Judge Richard J. Leon. (tb, ) (Entered: 01/22/2014)
USCA Case Number 14−5017 for 50 Notice of Cross Appeal, filed by MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE, MICHAEL FERRARI. (jf, ) (Entered: 01/24/2014)
55 MOTION for Leave to File Second Amended Complaint by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1 −− Second Amended Complaint, # 2 Text of Proposed Order)(Klayman, Larry) (Entered: 01/30/2014)
56 RESPONSE re 51 MOTION to Dismiss (The Government Defendants' Partial Motion To Dismiss and Memorandum in Support) filed by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE. (Klayman, Larry) (Entered: 01/30/2014)
Minute Entry:Status Conference held on 2/3/2014 before Judge Richard J. Leon. (Court Reporter Patty Gels) (tb, ) (Entered: 02/04/2014)
57 RESPONSE re 55 MOTION for Leave to File Second Amended Complaint in Klayman II filed by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II. (Dearinger, Bryan) (Entered:

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02/10/2014 02/10/2014 02/10/2014 02/12/2014 02/17/2014
02/17/2014
02/18/2014 02/25/2014 02/26/2014 02/27/2014
03/04/2014 03/06/2014 03/07/2014

02/10/2014)
58 MOTION for Leave to Supplement the Record by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1 −− Newspaper articles)(Klayman, Larry) (Entered: 02/10/2014)
59 NOTICE of Filing of Proposed Order by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE re 58 MOTION for Leave to Supplement the Record (Klayman, Larry) (Entered: 02/10/2014)
60 REPLY to opposition to motion re 51 MOTION to Dismiss (The Government Defendants' Partial Motion To Dismiss and Memorandum in Support) filed by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II. (Gilligan, James) (Entered: 02/10/2014)
61 MOTION for Leave to File Surreply To Reply In Support Of The Government Defendants Partial Motion To Dismiss And Surreply by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Text of Proposed Order)(Klayman, Larry) (Entered: 02/12/2014)
62 ENTERED IN ERROR.....SUPPLEMENTAL MEMORANDUM to re 61 MOTION for Leave to File Surreply To Reply In Support Of The Government Defendants Partial Motion To Dismiss And Surreply filed by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE. (Attachments: # 1 Exhibit 1 −− New York Times Disclosures on N.S.A. Interception of Foreign Law Firm Communications)(Klayman, Larry) Modified on 2/18/2014 (znmw, ). (Entered: 02/17/2014)
63 SUPPLEMENTAL MEMORANDUM to re 61 MOTION for Leave to File Surreply To Reply In Support Of The Government Defendants Partial Motion To Dismiss And Surreply (Corrected) filed by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE. (Attachments: # 1 Exhibit 1 −− New York Times Disclosures on N.S.A. Interception of Foreign Law Firm Communications)(Klayman, Larry) (Entered: 02/17/2014)
NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry 62 Supplemental Memorandum was entered in error and was refiled by counsel as Docket Entry 63 Supplemental Memorandum. (znmw, ) (Entered: 02/18/2014)
64 NOTICE Praecipe by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1 −− Reply filed by the Government Defendants)(Klayman, Larry) (Entered: 02/25/2014)
67 MOTION to Join, MOTION to Intervene by DAVID ANDREW CHRISTENSON (jf, ). (Entered: 03/07/2014)
65 Memorandum in opposition to re 61 MOTION for Leave to File Surreply To Reply In Support Of The Government Defendants Partial Motion To Dismiss And Surreply, 58 MOTION for Leave to Supplement the Record and 63 MOTION for Leave to File Surreply To Reply In Support Of The Government Defendants Partial Motion To Dismiss And Surreply (Corrected) filed by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II. (Attachments: # 1 Text of Proposed Order)(Dearinger, Bryan) (Entered: 02/27/2014)
66 REPLY to opposition to motion re 61 MOTION for Leave to File Surreply To Reply In Support Of The Government Defendants Partial Motion To Dismiss And Surreply, 58 MOTION for Leave to Supplement the Record filed by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE. (Klayman, Larry) (Entered: 03/04/2014)
69 MOTION to Join and for Leave by TIMOTHY DEMITRI BROWN (jf, ) (Entered: 03/10/2014)
68 NOTICE Regarding Order of the Foreign Intelligence Surveillance Court by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN

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03/24/2014 03/24/2014 03/26/2014 04/07/2014 04/08/2014 04/11/2014 04/11/2014 04/14/2014
04/16/2014 04/24/2014 04/28/2014 04/28/2014

OBAMA, II (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Dearinger, Bryan) (Entered: 03/07/2014)
70 Memorandum in opposition to re 69 MOTION for Joinder (Motion to Intervene Filed by Timothy Demitri Brown) filed by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II. (Attachments: # 1 Text of Proposed Order)(Dearinger, Bryan) (Entered: 03/24/2014)
71 Memorandum in opposition to re 67 MOTION for Joinder MOTION to Intervene Filed by David Andrew Christenson filed by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II. (Attachments: # 1 Text of Proposed Order)(Dearinger, Bryan) (Entered: 03/24/2014)
72 MOTION for Telephonic Status Conference by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1 −− Associated Press article about Jimmy Carter, # 2 Exhibit 2 −− Transcript of President Obama's Remarks from March 25, 2014, # 3 Text of Proposed Order)(Klayman, Larry) (Entered: 03/26/2014)
MINUTE ORDER denying 72 Plaintiffs' Motion for Telephonic Status Conference. It is hereby ORDERED that the motion is DENIED. Signed by Judge Richard J. Leon on 4/7/2014. (lcrjl1, ) (Entered: 04/07/2014)
73 LEAVE TO FILE DENIED− DAVID ANDREW CHRISTENSON, Motion for Emergency Stay This document is unavailable as the Court denied its filing. "Leave to file Denied". Signed by Judge Richard J. Leon. (Attachments: # 1 Exhibit) (zrdj) (Entered: 04/08/2014)
74 MOTION To Remove Stay On Preliminary Injunction Order Of December 16, 2013 re 40 Memorandum & Opinion, 41 Order on Motion for Preliminary Injunction,, by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Klayman, Larry) (Entered: 04/11/2014)
75 NOTICE of Filing of Exhibit 1 by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE re 74 MOTION To Remove Stay On Preliminary Injunction Order Of December 16, 2013 re 40 Memorandum & Opinion, 41 Order on Motion for Preliminary Injunction,, (Klayman, Larry) (Entered: 04/11/2014)
76 MOTION for Order to Show Cause Why Defendants Should Not Be Sanctioned For Making Material Misrepresentations To This Court And Request For Evidentiary Hearing by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1 −− Letter from Director Clapper to Senator Wyden Confirming Internet Data Has Been Harvested, # 2 Exhibit 2 −− Article Confirming that NSA Admits to Wrongdoing, # 3 Text of Proposed Order)(Klayman, Larry) (Entered: 04/14/2014)
77 REPLY to opposition to re (95 in 1:13−cv−00851−RJL, 69 in 1:13−cv−00881−RJL) MOTION for Joinder filed by TIMOTHY DEMITRI BROWN. "Leave to file Granted" signed by Judge Richard J. Leon (jf, ) (Entered: 04/17/2014)
78 LEAVE TO FILE DENIED by David Andrew Christenson − Summary Judgment. This document is unavailable as the Court denied its filing.. "Leave to filed DENIED" Signed by Judge Richard J. Leon on 04/24/2014. (jf, ) Modified on 4/24/2014 (jf, ). (Entered: 04/24/2014)
79 NOTICE Praecipe by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1 −− Motion To Strike and for Sanctions, # 2 Exhibit 2 −− Opposition to Motion to Strike and for Sanctions, # 3 Exhibit 3 −− Reply in Support of Motion to Strike and for Sanctions)(Klayman, Larry) (Entered: 04/28/2014)
80 Memorandum in opposition to re 74 MOTION To Remove Stay On Preliminary Injunction Order Of December 16, 2013 re 40 Memorandum & Opinion, 41 Order on Motion for Preliminary Injunction,, filed by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR,

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05/01/2014 05/01/2014 05/12/2014 05/14/2014 07/02/2014 07/30/2014
07/30/2014
08/22/2014 08/25/2014 08/28/2014

NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II. (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 04/28/2014)
MINUTE ORDER denying 74 Plaintiffs' Motion to Remove Stay on Preliminary Injunction Order of December 16, 2013. It is hereby ORDERED that the motion is DENIED. Signed by Judge Richard J. Leon on 5/1/2014. (lcrjl1, ) (Entered: 05/01/2014)
81 Memorandum in opposition to re 76 MOTION for Order to Show Cause Why Defendants Should Not Be Sanctioned For Making Material Misrepresentations To This Court And Request For Evidentiary Hearing filed by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II. (Attachments: # 1 Text of Proposed Order)(Berman, Julia) (Entered: 05/01/2014)
82 REPLY to opposition to motion re 76 MOTION for Order to Show Cause Why Defendants Should Not Be Sanctioned For Making Material Misrepresentations To This Court And Request For Evidentiary Hearing filed by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE. (Klayman, Larry) (Entered: 05/12/2014)
83 SUPPLEMENTAL MEMORANDUM to re 82 Reply to opposition to Motion, filed by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE. (Attachments: # 1 Exhibit 1 −− NY Times article: "Justice Dept. Criticized on Spying Statements")(Klayman, Larry) (Entered: 05/14/2014)
84 NOTICE of New Case Authority by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1 −− Riley v. California (case law))(Klayman, Larry) (Entered: 07/02/2014)
MINUTE ORDER. It is hereby ORDERED that Government Defendants' Motion for Extension of Time to Respond to Plaintiffs' Amended Complaints in Light of Memorandum Opinion Issued Today 43 is GRANTED nunc pro tunc. It is further ORDERED that Motion for Leave to File Amicus Brief by STEVEN D. LEONARD 48 is DENIED. It is further ORDERED that Plaintiffs' Motion for Leave to File Second Amended Complaint 55 is GRANTED. It is further ORDERED that Plaintiffs' Motion to Supplement the Record Concerning Recent Anonymous NSA Public Disclosures Over Metadata Collection 58 is DENIED. It is further ORDERED that Plaintiffs' Motion for Leave to File Surreply to Reply in Support of the Government Defendants' Partial Motion to Dismiss 61 is DENIED. It is further ORDERED that Motion to Join and/or Motion to Intervene by DAVID ANDREW CHRISTENSON 67 is DENIED. And it is further ORDERED that MOTION to Join and for Leave by TIMOTHY DEMITRI BROWN 69 is DENIED. SO ORDERED. Signed by Judge Richard J. Leon on 7/30/2014. (lcrjl1, ) (Entered: 07/30/2014)
MINUTE ORDER granting 49 Government Defendants' Motion for Stay of Proceedings Against the Government Defendants Pending Appeal of Preliminary Injunction. It is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that all proceedings against the Government Defendants in the above−captioned action are hereby STAYED pending the Government Defendants' appeal to the United States Court of Appeals for the District of Columbia Circuit from this Court's December 16, 2013, preliminary injunction in Case No. 13−cv−851. Signed by Judge Richard J. Leon on 7/30/2014. (lcrjl1, ) (Entered: 07/30/2014)
85 NOTICE OF APPEAL as to (111 in 1:13−cv−00851−RJL, 14 in 1:14−cv−00092−RJL, 78 in 1:13−cv−00881−RJL) Leave to File Denied, (105 in 1:13−cv−00851−RJL, 8 in 1:14−cv−00092−RJL, MINUTE ORDER in 1:13−cv−00881−RJL) Leave to File Denied by DAVID ANDREW CHRISTENSON. Fee Status: No Fee Paid. Parties have been notified. (jf, ) Modified on 8/25/2014 (jf, ). (Entered: 08/25/2014)
86 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Fee remains to be paid and another notice will be transmitted when the fee has been paid in the District Court re 85 Notice of Appeal,. (jf, ) (Entered: 08/25/2014)
USCA Case Number 14−5208 for 85 Notice of Appeal, filed by DAVID ANDREW CHRISTENSON. (kb) (Entered: 08/29/2014)

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09/08/2014 10/20/2014 10/20/2014
10/21/2014 12/11/2014 03/20/2015 04/01/2015 04/03/2015 04/06/2015 04/07/2015 04/13/2015
04/20/2015

87 MOTION for Leave to Appeal in forma pauperis by DAVID ANDREW CHRISTENSON (jf, ) (Entered: 09/11/2014)
88 ORDER of USCA (certified copy) as to (29 in 1:14−cv−00092−RJL) Notice of Appeal, filed by DAVID ANDREW CHRISTENSON ; USCA Case Number 14−5207. ORDERED, on the court's own motion, that these cases be held in abeyance pending the district court's resolution of appellant's motions for leave to proceed on appeal in forma pauperis. (kb) (Entered: 10/20/2014)
MINUTE ORDER denying without prejudice 87 Motion for Leave to Appeal in forma pauperis. It is hereby ORDERED that the motion for leave to appeal in forma pauperis is DENIED without prejudice. Plaintiff is directed to file an affidavit accompanying the motion for permission to appeal in forma pauperis, for which there is a form available on the D.C. Circuit Court of Appeals' web site, in which Plaintiff must affirm the inability to prepay the docket fees for the appeal because of Plaintiff's poverty. Once such affidavit is filed, the Court shall reconsider the motion for leave to appeal in forma pauperis. Signed by Judge Richard J. Leon on 10/20/2014. (lcrjl1) (Entered: 10/20/2014)
89 Supplemental Record on Appeal transmitted to US Court of Appeals re Order on Motion for Leave to Appeal in forma pauperis,, ;USCA Case Number 14−5208. (jf, ) (Entered: 10/21/2014)
90 LEAVE TO FILE DENIED− Additional Consideration on Affidavit and Request for Orders by John Stritzinger. This document is unavailable as the Court denied its filing. "Leave to file denied" Signed by Judge Richard J. Leon on 12/08/2014. (jf, ) (Entered: 12/11/2014)
91 MOTION for In Chambers and Ex Parte Interview of Witness Dennis Montgomery by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Text of Proposed Order)(Klayman, Larry) (Entered: 03/20/2015)
92 MOTION to Lift Stay re 40 Memorandum & Opinion, 41 Order on Motion for Preliminary Injunction,, by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Klayman, Larry) (Entered: 04/01/2015)
93 MOTION for Extension of Time to File Response/Reply as to 91 MOTION for In Chambers and Ex Parte Interview of Witness Dennis Montgomery by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II (Attachments: # 1 Text of Proposed Order)(Gilligan, James) (Entered: 04/03/2015)
MINUTE ORDER granting 93 Motion for Extension of Time to File Response/Reply. It is hereby ORDERED that defendants' motion is GRANTED. It is further ORDERED that defendants shall have up to and including 4/13/2015 to file their opposition to plaintiff's motion for in chambers and ex parte interview of witness. Signed by Judge Richard J. Leon on 4/6/2015. (lcrjl1, ) (Entered: 04/06/2015)
Set/Reset Deadlines: Response due by 4/13/2015. (tb, ) (Entered: 04/07/2015)
94 RESPONSE re 91 MOTION for In Chambers and Ex Parte Interview of Witness Dennis Montgomery (The Government Defendants Opposition To Plaintiffs Motion For In Chambers And Ex Parte Interview Of Witness Dennis Montgomery) filed by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11)(Gilligan, James) (Entered: 04/13/2015)
95 Memorandum in opposition to re 92 MOTION to Lift Stay re 40 Memorandum & Opinion, 41 Order on Motion for Preliminary Injunction,, filed by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II. (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 04/20/2015)

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04/23/2015 04/29/2015 05/12/2015
05/27/2015
05/29/2015 08/10/2015 08/28/2015 08/31/2015 08/31/2015 08/31/2015 09/02/2015 09/03/2015

96 REPLY to opposition to motion re 91 MOTION for In Chambers and Ex Parte Interview of Witness Dennis Montgomery filed by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE. (Klayman, Larry) (Entered: 04/23/2015)
97 REPLY to opposition to motion re 92 MOTION to Lift Stay re 40 Memorandum & Opinion, 41 Order on Motion for Preliminary Injunction,, filed by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE. (Klayman, Larry) (Entered: 04/29/2015)
98 SUPPLEMENTAL MEMORANDUM to re 91 MOTION for In Chambers and Ex Parte Interview of Witness Dennis Montgomery , 92 MOTION to Lift Stay re 40 Memorandum & Opinion, 41 Order on Motion for Preliminary Injunction,, and Notice of New Case Authority filed by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Klayman, Larry) (Entered: 05/12/2015)
99 MANDATE of USCA (certified copy) as to (29 in 1:14−cv−00092−RJL, 124 in 1:13−cv−00851−RJL, 85 in 1:13−cv−00881−RJL) Notice of Appeal, filed by DAVID ANDREW CHRISTENSON. ORDERED that the motions be denied and, on the court's own motion, the appeal be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). USCA Case Numbers 14−5207, 14−5208 and 14−5209. (rd) (Entered: 05/28/2015)
100 RESPONSE to Plaintiffs' Supplement to Motion to Lift Stay Pending Appeal and Motion for In Camera Interview and Notice of New Case Authority filed by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II. (Berman, Julia) (Entered: 05/29/2015)
101 SUPPLEMENTAL MEMORANDUM to re 92 MOTION to Lift Stay re 40 Memorandum & Opinion, 41 Order on Motion for Preliminary Injunction,, (Amended) filed by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE. (Attachments: # 1 Exhibit 1)(Klayman, Larry) (Entered: 08/10/2015)
Set/Reset Hearings: Status Conference set for 9/2/2015 12:00 PM in Courtroom 18 before Judge Richard J. Leon. (tb) (Entered: 08/28/2015)
102 MOTION to Continue the Status Conference Until the Following Week by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 08/31/2015)
MINUTE ORDER denying 102 Motion to Continue. It is hereby ORDERED that government defendants' Motion to Continue the Status Conference set for 9/2/2015 at 12:00PM in Courtroom 18 before Judge Richard J. Leon is DENIED. Signed by Judge Richard J. Leon on 8/31/15. (lcrjl3, ) (Entered: 08/31/2015)
103 RESPONSE re 102 MOTION to Continue the Status Conference Until the Following Week filed by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE. (Klayman, Larry) (Entered: 08/31/2015)
Minute Entry for proceedings held before Judge Richard J. Leon: Status Conference held on 9/2/2015. (Court Reporter: William Zaremba) (jth) (Entered: 09/02/2015)
104 TRANSCRIPT OF STATUS HEARING PROCEEDINGS before Judge Richard J. Leon held on September 2, 2015; Page Numbers: 1−48. Date of Issuance: September 3, 2015. Court Reporter/Transcriber: William Zaremba; Telephone number: (202) 354−3249; Court Reporter Email Address: WilliamPZaremba@gmail.com.

For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, PDF or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal

Case: 1:13-cv-881 As of: 11/29/2018 12:48 PM EST 19 of 24

identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

09/03/2015 09/08/2015 09/15/2015 10/06/2015 10/06/2015
02/03/2016 02/04/2016 02/05/2016 02/10/2016 02/11/2016
02/11/2016

Redaction Request due 9/24/2015. Redacted Transcript Deadline set for 10/4/2015. Release of Transcript Restriction set for 12/2/2015.(wz) (Entered: 09/03/2015)
105 NOTICE of Filing by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit A)(Klayman, Larry) (Entered: 09/03/2015)
106 MOTION for Leave to File Third Amended Complaint by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Klayman, Larry) (Entered: 09/08/2015)
107 RESPONSE re 106 MOTION for Leave to File Third Amended Complaint filed by KEITH B. ALEXANDER, DEPARTMENT OF JUSTICE OF THE UNITED STATES, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II. (Gilligan, James) (Entered: 09/15/2015)
108 NOTICE of Filing by MICHAEL FERRARI, MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE (Attachments: # 1 Exhibit 1)(Klayman, Larry) (Entered: 10/06/2015)
109 MANDATE of USCA (certified copy) as to (46 in 1:13−cv−00881−RJL) Notice of Appeal to DC Circuit Court, filed by NATIONAL SECURITY AGENCY, KEITH B. ALEXANDER, BARACK OBAMA, ERIC H. HOLDER, JR., DEPARTMENT OF JUSTICE OF THE UNITED STATES, (67 in 1:13−cv−00851−RJL) Notice of Cross Appeal, filed by LARRY E. KLAYMAN, MARY ANN STRANGE, CHARLES STRANGE, (50 in 1:13−cv−00881−RJL) Notice of Cross Appeal, filed by MATT GARRISON, LARRY E. KLAYMAN, CHARLES STRANGE, MICHAEL FERRARI, (64 in 1:13−cv−00851−RJL) Notice of Appeal to DC Circuit Court, filed by NATIONAL SECURITY AGENCY, KEITH B. ALEXANDER, U.S. DEPARTMENT OF JUSTICE, BARACK OBAMA, ERIC H. HOLDER, JR. ORDERED and ADJUDGED that the preliminary injunction entered by the District Court be vacated and the cases are hereby remanded for such further proceedings as may be appropriate, in accordance with the opinion of the court filed herein this date. USCA Case Number 14−5004; Consolidated with 14−5005, 14−5016 and 14−5017. (rd) (Entered: 10/14/2015)
Set/Reset Hearings: Status Conference set for 2/10/2016 (CORRECTION )at 12:00 PM in Courtroom 18 before Judge Richard J. Leon. (tb) Modified on 2/3/2016 (tb). (Entered: 02/03/2016)
110 Unopposed MOTION for Hearing (Status Conference) requested by Plaintiffs for week of February 15, 2016 by LARRY E. KLAYMAN (Klayman, Larry) (Entered: 02/04/2016)
MINUTE ORDER: In light of plaintiffs' 110 Motion for Hearing, it is hereby ORDERED that the Status Conference currently scheduled for February 10, 2016 at 12:00PM is continued until February 12, 2016 at 12:00PM. Signed by Judge Richard J. Leon on 2/5/16. (lcrjl3, ) (Entered: 02/05/2016)
Set/Reset Hearings: Status Conference set for 2/12/2016 at 12:00 PM in Courtroom 18 before Judge Richard J. Leon. (tb) (Entered: 02/10/2016)
111 NOTICE of Opposition in US Court of Appeals to Motion to Vacate Injunction by LARRY E. KLAYMAN re Order on Motion for Hearing, (Attachments: # 1 Exhibit Opposition in US Court of Appeals to Motion to Vacate Injunction, # 2 Exhibit Exhibit 1 to Opposition, # 3 Exhibit Exhibit 2 to Opposition, # 4 Exhibit Exhibit 3 to Opposition, # 5 Exhibit Exhibit 4 to Opposition)(Klayman, Larry) (Entered: 02/11/2016)
MINUTE ORDER: It is hereby ORDERED that the status conference currently set for February 12, 2016 at 12:00 PM is rescheduled for February 12, 2016 at 2:15 PM in

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02/11/2016 02/11/2016 02/11/2016
02/11/2016
02/11/2016
02/12/2016 02/12/2016 02/19/2016 03/04/2016
03/04/2016
03/07/2016 03/08/2016 03/10/2016

Courtroom 18 before Judge Richard J. Leon. Signed by Judge Richard J. Leon on 2/11/16. (lcrjl3, ) (Entered: 02/11/2016)
MINUTE ORDER denying as moot plaintiffs' 92 Motion to Lift Stay Pending Appeal. It is hereby ORDERED that this motion is DENIED as MOOT. Signed by Judge Richard J. Leon on 2/11/16. (lcrjl3, ) (Entered: 02/11/2016)
MINUTE ORDER denying plaintiffs' 91 Motion for In Chambers and Ex Parte Interview of Witness Dennis Montgomery. It is hereby ORDERED that this motion is DENIED. Signed by Judge Richard J. Leon on 2/11/16. (lcrjl3, ) (Entered: 02/11/2016)
MINUTE ORDER: It is hereby ORDERED that plaintiffs' 106 Motion for Leave to File Third Amended Complaint is GRANTED, and that plaintiffs' Third Amended Complaint is deemed filed as of the date of this Order. It is further ORDERED that the government defendants' 51 Partial Motion to Dismiss is DENIED as MOOT. Signed by Judge Richard J. Leon on 2/11/16. (lcrjl3, ) (Entered: 02/11/2016)
MINUTE ORDER denying plaintiffs' 76 Motion for Order to Show Cause Why Defendants Should Not Be Sanctioned For Making Material Misrepresentations To This Court And Request For Evidentiary Hearing. It is hereby ORDERED that this motion is DENIED. Signed by Judge Richard J. Leon on 2/11/16. (lcrjl3, ) (Entered: 02/11/2016)
112 Third AMENDED COMPLAINT against KEITH B. ALEXANDER, ERIC H. HOLDER, JR, BARACK H. OBAMA, JEFFREY JAMES ("J.J.") LITTLE, J.J. LITTLE & ASSOCIATES, P.C., MARRY ANN STRANGE, ROGER VINSON, JAMES CLAPPER, JOHN O. BRENNAN, JAMES COMEY, NATIONAL SECURITY AGENCY, FEDERAL BUREAU OF INVESTIGATION, CENTRAL INTELLIGENCE AGENCY with Jury Demand filed by LARRY E. KLAYMAN, MICHAEL FERRARI, CHARLES STRANGE, MATT GARRISON, JEFFREY JAMES ("J.J.") LITTLE, J.J. LITTLE & ASSOCIATES, P.C., MARRY ANN STRANGE.(td) (Entered: 02/12/2016)
Set/Reset Hearings: Status Conference reset for 2/12/2016 at 02:15 PM in Courtroom 18 before Judge Richard J. Leon. (tb) (Entered: 02/12/2016)
Minute Entry for proceedings held before Judge Richard J. Leon: Status Conference held on 2/12/2016. (Court Reporter William Zaremba.) (ztnr) (Entered: 02/17/2016)
113 MOTION to Quash Service on Defendant Alexander and Motion to Dismiss Individual Federal Defendants Under Rule 4(m) by KEITH B. ALEXANDER, JOHN O. BRENNAN, JAMES CLAPPER, JAMES COMEY, ERIC H. HOLDER, JR, BARACK H. OBAMA, ROGER VINSON (Whitman, James) (Entered: 02/19/2016)
114 Consent MOTION for Extension of Time to File Response/Reply as to 113 MOTION to Quash Service on Defendant Alexander and Motion to Dismiss Individual Federal Defendants Under Rule 4(m) of the Defendants, Motion for Extension to file Opposition filed by the Plaintiffs by LARRY E. KLAYMAN (Attachments: # 1 Text of Proposed Order)(Klayman, Larry) (Entered: 03/04/2016)
MINUTE ORDER granting plaintiff's 114 Consent Motion for Extension of Time to Respond to Defendant's Motion to Quash Service. It is hereby ORDERED that this motion is GRANTED and that plaintiff shall have up to and including March 9, 2016 in which to respond to defendant's motion to quash. Signed by Judge Richard J. Leon on 3/4/16. (lcrjl3, ) (Entered: 03/04/2016)
Set/Reset Deadlines: Response due by 3/9/2016. (tb) (Entered: 03/07/2016)
115 Memorandum in opposition to re 113 MOTION to Quash Service on Defendant Alexander and Motion to Dismiss Individual Federal Defendants Under Rule 4(m) for the Plaintiffs filed by LARRY E. KLAYMAN. (Klayman, Larry) (Entered: 03/08/2016)
116 REPLY to opposition to motion re 113 MOTION to Quash Service on Defendant Alexander and Motion to Dismiss Individual Federal Defendants Under Rule 4(m) filed by KEITH B. ALEXANDER, JOHN O. BRENNAN, JAMES CLAPPER, JAMES COMEY, ERIC H. HOLDER, JR, BARACK H. OBAMA, ROGER VINSON. (Whitman, James) (Entered: 03/10/2016)

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03/30/2016
04/05/2016 04/05/2016 04/18/2016
09/20/2016 09/20/2016 10/04/2016 10/10/2016
10/11/2016 11/02/2016
11/08/2016 11/17/2016

MINUTE ORDER STAYING CASE: It is hereby ORDERED that the above−captioned case is STAYED pending final disposition of the government defendants' appeal from this Court's November 9, 2015 preliminary injunction in Case No. 13−cv−851, which is now pending before the United States Court of Appeals for the District of Columbia Circuit, No. 15−5307. Signed by Judge Richard J. Leon on 3/30/16. (lcrjl3, ) (Entered: 03/30/2016)
117 NOTICE of Appellate Action by LARRY E. KLAYMAN (Klayman, Larry) (Entered: 04/05/2016)
118 MOTION to Lift Stay by LARRY E. KLAYMAN. (See Docket Entry 117 to view document). (znmw) (Entered: 04/06/2016)
119 RESPONSE re 118 MOTION to Lift Stay filed by KEITH B. ALEXANDER, JOHN O. BRENNAN, CENTRAL INTELLIGENCE AGENCY, JAMES CLAPPER, JAMES COMEY, DEPARTMENT OF JUSTICE OF THE UNITED STATES, FEDERAL BUREAU OF INVESTIGATION, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK H. OBAMA. (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 04/18/2016)
MINUTE ORDER granting 118 Motion to Lift Stay. It is hereby ORDERED that the stay in this case is lifted. Signed by Judge Richard J. Leon on 9/20/2016. (lcrjl3, ) (Entered: 09/20/2016)
120 MEMORANDUM ORDER: It is hereby ordered that defendant's 113 Motion to Quash Service and the Individual Federal Defendants Motion to Dismiss Under Fed. R. Civ. P. 4(m) is GRANTED and the complaint is DISMISSED as to the government officials in their individual capacities. Signed by Judge Richard J. Leon on 09/19/16. (tb) (Entered: 09/21/2016)
121 Joint STATUS REPORT by LARRY E. KLAYMAN. (Klayman, Larry) (Entered: 10/04/2016)
MINUTE SCHEDULING ORDER: Upon consideration of the parties' Joint Status Report and Proposed Briefing Schedules 121 , the Court hereby ADOPTS the federal defendants' proposal. It is hereby ORDERED that the defendants' reconstituted motion to dismiss is due by 11/10/2016; plaintiffs' response is due by 12/12/2016; defendants' reply is due by 12/23/2016. SO ORDERED. Signed by Judge Richard J. Leon on 10/10/2016. (lcrjl3, ) (Entered: 10/10/2016)
Set/Reset Deadlines: Dispositive Motions due by 11/10/2016. Response to Dispositive Motions due by 12/12/2016. Reply to Dispositive Motions due by 12/23/2016. (tb) (Entered: 10/11/2016)
122 Unopposed MOTION for Extension of Time to File Motion to Dismiss and to Amend the Briefing Schedule by KEITH B. ALEXANDER, JOHN O. BRENNAN, CENTRAL INTELLIGENCE AGENCY, JAMES CLAPPER, JAMES COMEY, DEPARTMENT OF JUSTICE OF THE UNITED STATES, FEDERAL BUREAU OF INVESTIGATION, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 11/02/2016)
MINUTE ORDER granting 122 Unopposed Motion for Extension of Time to File a Motion to Dismiss and to Amend the Current Briefing Schedule. Set/Reset Deadlines: Government's Motion to Dismiss due by 11/17/2016; response due by 12/22/2016; reply due by 1/12/2017. SO ORDERED. Signed by Judge Richard J. Leon on 11/8/2016. (lcrjl3, ) (Entered: 11/08/2016)
123 MOTION to Dismiss for Lack of Jurisdiction by KEITH B. ALEXANDER, JOHN O. BRENNAN, CENTRAL INTELLIGENCE AGENCY, JAMES CLAPPER, JAMES COMEY, DEPARTMENT OF JUSTICE OF THE UNITED STATES, FEDERAL BUREAU OF INVESTIGATION, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II (Attachments: # 1 Memorandum in Support, # 2 Exhibit (Exhibit 1 Part 1), # 3 Exhibit (Exhibit 1 Part 2), # 4 Exhibit (Exhibit 2), # 5 Exhibit (Exhibit 3), # 6 Exhibit (Exhibit 4), # 7 Text of Proposed Order)(Gilligan, James) (Entered: 11/18/2016)

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12/16/2016 12/19/2016 01/03/2017 01/06/2017 01/12/2017 01/17/2017 01/18/2017 02/03/2017
02/08/2017 02/10/2017
02/11/2017 02/15/2017

124 Consent MOTION for Extension of Time to File Response/Reply as to 123 MOTION to Dismiss for Lack of Jurisdiction by MICHAEL FERRARI, MATT GARRISON, J.J. LITTLE & ASSOCIATES, P.C., LARRY E. KLAYMAN, CHARLES STRANGE, MARRY ANN STRANGE (Attachments: # 1 Text of Proposed Order)(Klayman, Larry) (Entered: 12/16/2016)
MINUTE ORDER granting 124 Motion for Extension of Time to File Response re 123 Motion to Dismiss for Lack of Jurisdiction. It is hereby ORDERED that plaintiffs have up to and including 1/5/2017 to respond to the motion and defendants have up to and including 1/26/2017 to reply. Set/Reset Deadlines: responses due by 1/5/2017; replies due by 1/26/2017. Signed by Judge Richard J. Leon on 12/19/2016. (lcrjl3, ) (Entered: 12/19/2016)
125 Consent MOTION for Extension of Time to File Response/Reply as to 123 MOTION to Dismiss for Lack of Jurisdiction by MICHAEL FERRARI, MATT GARRISON, J.J. LITTLE & ASSOCIATES, P.C., LARRY E. KLAYMAN, CHARLES STRANGE, MARRY ANN STRANGE (Attachments: # 1 Text of Proposed Order)(Klayman, Larry) (Entered: 01/03/2017)
MINUTE ORDER granting 125 Plaintiffs' Second Consented Motion for Extension of Time to File Response re 123 MOTION to Dismiss for Lack of Jurisdiction. Set/Reset Deadlines: Response due by 1/12/2017. Reply due by 2/2/2017. Signed by Judge Richard J. Leon on 1/6/2017. (lcrjl3, ) (Entered: 01/06/2017)
126 Consent MOTION for Extension of Time to File Response/Reply as to 123 MOTION to Dismiss for Lack of Jurisdiction by MICHAEL FERRARI, MATT GARRISON, J.J. LITTLE & ASSOCIATES, P.C., LARRY KLAYMAN, CHARLES STRANGE, MARRY ANN STRANGE (Attachments: # 1 Text of Proposed Order)(Klayman, Larry) (Entered: 01/12/2017)
127 RESPONSE re 123 MOTION to Dismiss for Lack of Jurisdiction filed by MICHAEL FERRARI, MATT GARRISON, J.J. LITTLE & ASSOCIATES, P.C., LARRY KLAYMAN, CHARLES STRANGE, MARRY ANN STRANGE. (Klayman, Larry) (Entered: 01/17/2017)
MINUTE ORDER granting nunc pro tunc 126 Plaintiffs' Third Consented Motion for Extension of Time to File Response re 123 MOTION to Dismiss for Lack of Jurisdiction. Plaintiffs' response 127 filed 1/17/2017 shall be, and hereby is, considered timely. Replies due by 2/7/2017. SO ORDERED. Signed by Judge Richard J. Leon on 1/18/2017. (lcrjl3, ) (Entered: 01/18/2017)
128 Unopposed MOTION for Extension of Time to File Response/Reply in Support of the Government Defendants' Motion to Dismiss by KEITH B. ALEXANDER, JOHN O. BRENNAN, CENTRAL INTELLIGENCE AGENCY, JAMES CLAPPER, JAMES COMEY, DEPARTMENT OF JUSTICE OF THE UNITED STATES, FEDERAL BUREAU OF INVESTIGATION, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 02/03/2017)
MINUTE ORDER granting 128 Motion for Extension of Time to File Reply re 123 MOTION to Dismiss for Lack of Jurisdiction. Set/Reset Deadlines: Replies due by 2/10/2017. Signed by Judge Richard J. Leon on 2/8/2017. (lcrjl3, ) (Entered: 02/08/2017)
129 REPLY to opposition to motion re 123 MOTION to Dismiss for Lack of Jurisdiction (Reply Brief in Support of the Government Defendants Motion To Dismiss Klayman I and Klayman II for Lack of Subject Matter Jurisdiction) filed by KEITH B. ALEXANDER, JOHN O. BRENNAN, CENTRAL INTELLIGENCE AGENCY, JAMES CLAPPER, JAMES COMEY, DEPARTMENT OF JUSTICE OF THE UNITED STATES, FEDERAL BUREAU OF INVESTIGATION, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Gilligan, James) (Entered: 02/10/2017)
Set/Reset Deadlines: Reply due by 2/10/2017. (tb) (Entered: 02/11/2017)
130 SUPPLEMENTAL MEMORANDUM to re 127 Response to motion filed by MICHAEL FERRARI, MATT GARRISON, J.J. LITTLE & ASSOCIATES, P.C.,

Case: 1:13-cv-881 As of: 11/29/2018 12:48 PM EST 23 of 24

02/15/2017 03/08/2017 03/27/2017 04/10/2017
04/13/2017 04/13/2017 04/17/2017
04/24/2017 11/21/2017 11/21/2017
12/21/2017

LARRY KLAYMAN, CHARLES STRANGE, MARRY ANN STRANGE. (Klayman, Larry) (Entered: 02/15/2017)
131 CORRECTED SUPPLEMENTAL MEMORANDUM to re 130 Supplemental Memorandum, 127 Response to motion filed by MICHAEL FERRARI, MATT GARRISON, J.J. LITTLE & ASSOCIATES, P.C., LARRY KLAYMAN, CHARLES STRANGE, MARRY ANN STRANGE. (Klayman, Larry) Modified text on 2/16/2017 (td). (Entered: 02/15/2017)
132 Emergency MOTION for Hearing Status Conference by MICHAEL FERRARI, MATT GARRISON, J.J. LITTLE & ASSOCIATES, P.C., LARRY KLAYMAN, CHARLES STRANGE, MARRY ANN STRANGE (Klayman, Larry) (Entered: 03/08/2017)
133 MOTION to Compel DEFENDANTS TO PARTICIPATE IN THE REQUIRED FRCP 26(f) CONFERENCE by MICHAEL FERRARI, MATT GARRISON, J.J. LITTLE & ASSOCIATES, P.C., LARRY KLAYMAN, CHARLES STRANGE, MARRY ANN STRANGE (Attachments: # 1 Text of Proposed Order 1)(Klayman, Larry) (Entered: 03/27/2017)
134 Memorandum in opposition to re 133 MOTION to Compel DEFENDANTS TO PARTICIPATE IN THE REQUIRED FRCP 26(f) CONFERENCE filed by KEITH B. ALEXANDER, CENTRAL INTELLIGENCE AGENCY, JAMES CLAPPER, JAMES COMEY, DEPARTMENT OF JUSTICE OF THE UNITED STATES, FEDERAL BUREAU OF INVESTIGATION, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II. (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 04/10/2017)
MINUTE ORDER denying 133 MOTION to Compel by LARRY KLAYMAN, CHARLES STRANGE, MARY ANN STRANGE. It is hereby ORDERED that the requirement that the parties participate in a FRCP 26(f) conference is stayed until the Court rules upon 123 MOTION to Dismiss for Lack of Jurisdiction. Signed by Judge Richard J. Leon on 4/13/17. (lcrjl3, ) (Entered: 04/13/2017)
135 REPLY to opposition to motion re 133 MOTION to Compel DEFENDANTS TO PARTICIPATE IN THE REQUIRED FRCP 26(f) CONFERENCE filed by MICHAEL FERRARI, MATT GARRISON, J.J. LITTLE & ASSOCIATES, P.C., LARRY KLAYMAN, CHARLES STRANGE, MARRY ANN STRANGE. (Klayman, Larry) (Entered: 04/13/2017)
136 MOTION for Leave to File Surreply by KEITH B. ALEXANDER, JOHN O. BRENNAN, CENTRAL INTELLIGENCE AGENCY, JAMES CLAPPER, JAMES COMEY, DEPARTMENT OF JUSTICE OF THE UNITED STATES, FEDERAL BUREAU OF INVESTIGATION, ERIC H. HOLDER, JR, NATIONAL SECURITY AGENCY, BARACK HUSSEIN OBAMA, II (Attachments: # 1 Exhibit A (Proposed Surreply), # 2 Text of Proposed Order)(Gilligan, James) (Entered: 04/17/2017)
MINUTE ORDER denying as moot 136 Motion for Leave to File Surreply. Signed by Judge Richard J. Leon on 4/24/17. (lcrjl3, ) (Entered: 04/24/2017)
137 MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 11/21/2017. (jth) (Entered: 11/22/2017)
138 ORDER. This case comes before the Court upon defendants' consolidated (178) (123) Motion to Dismiss plaintiffs' complaints in these two related cases. Upon consideration of the motion, the pertinent portions of the record, and being otherwise fully advised on the matter, it is ORDERED that, for the reasons stated in the accompanying memorandum opinion, the motion is GRANTED. Plaintiff's claims are DISMISSED with PREJUDICE. SO ORDERED. Signed by Judge Richard J. Leon on 11/21/2017. (jth) (Entered: 11/22/2017)
139 NOTICE OF APPEAL TO DC CIRCUIT COURT by MICHAEL FERRARI, MATT GARRISON, J.J. LITTLE & ASSOCIATES, P.C., LARRY KLAYMAN, CHARLES STRANGE, MARRY ANN STRANGE. Filing fee $ 505, receipt number 0090−5260686. Fee Status: Fee Paid. Parties have been notified. (Klayman, Larry) (Entered: 12/21/2017)

Case: 1:13-cv-881 As of: 11/29/2018 12:48 PM EST 24 of 24

12/22/2017 12/26/2017

140 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 139 Notice of Appeal to DC Circuit Court,. (jf) (Entered: 12/22/2017)
USCA Case Number 17−5282 for 139 Notice of Appeal to DC Circuit Court, filed by J.J. LITTLE & ASSOCIATES, P.C., LARRY KLAYMAN, MARRY ANN STRANGE, MATT GARRISON, CHARLES STRANGE, MICHAEL FERRARI. (td) (Entered: 12/26/2017)