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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

ANNA J. SMITH

Plaintiff,

Case No. 2:13-CV-257-BLW

v.

MEMORANDUM DECISION

BARACK OBAMA, President of the United States, et al.,

Defenda

nts.

INTRODUCTION The Court has before it plaintiff Smith’s motion for injunctive relief and defendants’ motion to dismiss. The Court heard oral argument on May 14, 2014, and took the motions under advisement. For the reasons expressed below, the Court will grant the defendants’ motion to dismiss and deny Smith’s motion for injunctive relief.
BACKGROUND The Fourth Amendment protects the right of privacy by forbidding unreasonable searches and seizures. With few exceptions, a citizen cannot be searched in violation of her reasonable expectation of privacy unless a judge has found there is probable cause to believe that she is committing a crime. This Fourth Amendment protection is violated here, Smith alleges, because the National Security Administration (NSA) is searching her telephone records without showing first that there is probable cause to believe she is engaged in criminal behavior. She asks the Court to enjoin the NSA from collecting and analyzing her telephone data.
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For more than seven years, the NSA has been collecting and analyzing the telephone records of Americans to detect terrorist threats. While the agency does not listen to conversations, or identify the callers’ names and addresses, it does collect the telephone numbers of all parties to a call, along with the duration and time of that call, and stores this data for five years.
The NSA’s collection and analysis protocols must be periodically approved by the Foreign Intelligence Surveillance Court (FISC). The FISC prohibits the NSA from accessing the stored telephone data for any purpose other than counterterrorism or technical maintenance of the system. See Shea Declaration (Dkt. No. 15-2) at ¶ 31.
The NSA uses its vast trove of data to identify the telephone numbers of calls that terrorists make and receive. Before the NSA can access its telephone data, the FISCapproved protocols require the agency to first make an internal finding – authorized by one of twenty-two designated NSA officials – that a particular telephone number is associated with a terrorist organization. Id. at ¶ 32.
Once the NSA makes its internal determination, it may run a query through its data bank to collect (1) the telephone data of persons who made calls to – or received calls from – the suspected terrorist, and (2) the telephone data of persons who made calls to – or received calls from – the telephone numbers for any person who had direct telephone contact with the suspected terrorist. Id. at ¶ 23. In prior years, the scope of the query extended to a third level but “the NSA has taken immediate steps to implement restrictions [imposed by the President] limiting its review of queries to two [levels] only
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and the Government is now working with the FISC to incorporate this restriction into the FISC’s orders.” Id.
Smith alleges that her own telephone data has been swept up into the NSA’s broad net in violation of her Fourth Amendment rights.1 She asks the Court to enjoin the agency from collecting and using this telephone data from her calls.2
ANALYSIS The Fourth Amendment is concerned with surveillance that (1) involves a “trepassory intrusion on property” or (2) “violates a subjective expectation of privacy that society recognizes as reasonable.” See U.S. v. Jones, 132 S.Ct. 945, 954-55 (Sotomayor, J., concurring). It is the latter interest that Smith urges here. She claims that the NSA’s collection efforts violate her expectation of privacy in her telephone records. Smith has no expectation of privacy in the telephone numbers that she dials. See Smith v Maryland, 442 U.S. 735 (1979). A person using the telephone “voluntarily convey[s] numerical information to the telephone company” and “assume[s] the risk that the company [will] reveal to police the numbers he dialed.” Id. at 744. But the data collected by the NSA goes beyond the telephone numbers that Smith dials, and reaches into her personal information. For example, the NSA’s collection of
1 Smith originally alleged additional claims but has conceded that they should be dismissed, leaving only the Fourth Amendment claim for resolution.
2 The Court finds that Smith – a Verizon customer – has standing to bring this action. See Klayman v. Obama, 957 F.Supp.2d 1, 26-28 (D.D.C.2013) (granting standing to individual plaintiffs to challenge NSA collection of their telephone records from Verizon after finding “strong evidence” that NSA has collected Verizon metadata for the last seven years and run queries that necessarily analyzed that data).
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the time and duration of phone calls is revealing: Would most citizens want to keep private the fact that they called someone at one in the morning and talked for an hour or two?
And what about location? Would most phone users expect to keep private (1) their location at any moment and (2) their travel path over time? The NSA collects “trunk identifier” data, see Shea Declaration, supra at ¶ 15, that shows the location where a cell-phone call enters the “trunk” system to be relayed eventually to the number being called. See Leslie Groll, What Kind of Phone Data Can the NSA Collect Exactly?, FOREIGN POLICY (June 6, 2013).3 While this would not pinpoint a phone user’s precise location, it would narrow it down considerably. Id.4; see also State v. Earls, 70 A.3d 630, 637 (N.J.Sup.Ct. 2013) (holding that New Jersey’s constitution requires police to obtain warrant before collecting cell phone location data and noting that carriers have data that “can locate cell-phone users within buildings, and even within individual floors and rooms within buildings”). Moreover, the data also includes “comprehensive communications routing information.” See Shea Declaration, supra at ¶ 15. While this phrase is ambiguous, it may mean that for a single call, all the trunk identifiers are collected by the NSA, allowing the agency to track “how a cell phone user moves from
3 Available at http://blog.foreignpolicy.com/posts/2013/06/06/what_kind_of_phone_data_can_the_nsa_collect_exactly
4 Trunk identifier data may 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-know-about-yourphone-calls.html.
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one cell phone tower to another while traveling.” FOREIGN POLICY, supra. The speed with which the phone moves from tower to tower could indicate, for example, whether the device is being used in a car or while walking down the street.
Compare these intrusions to those faced in Smith: There, the Baltimore police collected the telephone numbers dialed by a suspected robber for about two days. This simple comparison reveals a looming gulf between Smith and this case. But the Ninth Circuit has bridged some of that chasm. In United States v. Reed, 575 F.3d 900 (9th Cir. 2009), the Circuit held that “there is no Fourth Amendment expectation of privacy” in data that includes the number dialed along with the length and time of the call. Id. at 914. The Circuit has also applied Smith in holding that e-mail and internet users have no expectation of privacy in the “to/from addresses of e-mail messages, the IP addresses of websites visited and the total amount of data transmitted to or from an account.” U.S. v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008). To the extent that an individual’s telephone data collected by a cell-phone provider is no different than an individual’s power consumption records collected by an electric utility, the Circuit has held that utility customers lack a reasonable expectation of privacy in such business records. U.S. v. Golden Valley Elec. Ass’n, 689 F.3d 1108, 1116 (9th Cir.2012).
Although the Ninth Circuit has not resolved the precise issue faced here, other courts have done so: Two of these decisions apply Smith to find that the NSA is not violating the Fourth Amendment. See A.C.L.U. v Clapper, 959 F.Supp. 2d 724 (S.D.N.Y. 2013); U.S. v. Moalin, 2013 WL 6079518 (S.D.Cal. 2013).
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But these cases do not address a subject lurking in the shadows here: The possibility that the NSA is tracking the location of calls using the trunk identifier data discussed above. In Jones, five Justices wrote that the government surveillance of one’s public movements for 28 days using a GPS device violated a reasonable expectation of privacy and constituted a Fourth Amendment search. See also, Case Comment, Fourth Amendment – Warrantless Searches, 127 Harv.L.Rev. 2164 (2014) (concluding that “[b]ecause the disclosure of [cell-site location information] is not necessarily voluntary, individuals still may hold an expectation of privacy in their cell-site data even under Smith”).
The NSA denies that it is tracking location. Teresa Shea, the NSA’s Director of the Signals Intelligence Directorate represents to the Court that “[t]he metadata collected by the Government pursuant to these [FISC] orders also does not include cell site locational information.” Shea Declaration, supra at ¶ 15. A similar representation was made by the NSA’s General Counsel, Robert Litt when he stated that “I want to make perfectly clear we do not collect cellphone location information under this program, either GPS information or cell site tower information.”5 Finally, the FISC orders submitted to the Court expressly prohibit the NSA from collecting any addresses
5 See Klayman, 957 F.Supp.2d at 36 n. 57 (citing 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).
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associated with the telephone numbers it collects, apparently precluding the collection and analysis of location data. See Order (Dkt. No. 15-6) at pg. 3.
Smith’s briefing and argument were not extensive on this issue. While there is speculation that the NSA is tracking location, there is no evidence of that, and the agency denies it. Under these circumstances, the Court will not assume that the NSA’s privacy intrusions include location tracking.
Because Jones does not apply, the weight of the authority favors the NSA. The Supreme Court’s decision in Smith, supplemented by the Circuit’s decisions in Reed, Forrester, and Golden Valley, and the two District Court decisions on point, Clapper and Moalin, support a finding that there is no Fourth Amendment violation here.
The contrary view is stated by Klayman v. Obama, 957 F.Supp.2d 1 (D.D.C.2013), a thoughtful and well-written decision by Judge Richard Leon. He distinguished Smith by finding that the scope and duration of the NSA’s collection is far beyond the individual pen register at issue in Smith. Of critical importance to Judge Leon was that Smith could never have anticipated the ubiquity of cell-phones and the fact that “people in 2013 have an entirely different relationship with phones than they did thirty-four years ago.” Id. at 36. As he eloquently observes, “[r]ecords 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.” Ultimately, he held that the plaintiffs had a likelihood of success on their Fourth Amendment claim, and he enjoined the NSA from collecting their telephone records, although he stayed his decision pending appeal.
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Judge Leon’s decision should serve as a template for a Supreme Court opinion. And it might yet. Justice Sotomayor is inclined to reconsider Smith, finding it “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” See U.S. v. Jones, 132 U.S. 945, 957 (2012) (Sotomayor, J., concurring). The Fourth Amendment, in her view, should not “treat secrecy as a prerequisite for privacy.” Id.
But Smith was not overruled, and it continues – along with the Circuit decisions discussed above – to bind this Court. This authority constrains the Court from joining Klayman. Accordingly, the Court will grant the defendants’ motion to dismiss and deny Smith’s motion for injunctive relief. The Court will issue a separate Judgment as required by Rule 58(a).

DATED: June 3, 2014

_________________________

B. Lynn Winmill

Chief

Judge

United States District Court

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PETER J. SMITH IV, ISB 6997 Lukins & Annis, P.S. 601 E. Front Avenue, Suite 502 Coeur d'Alene, ID 83814 Phone:208-667-0517 Fax: 208-664-4125 Email: psmith@lukins.com

LUCAS T. MALEK, ISB 8610 Luke Malek, Attorney at Law, PLLC 721 N 8th Street Coeur d'Alene, ID 83814 Phone: 208-661-3881 Email: Luke Malek@hotmail.com

Attorneys for the Plaintiff ANNA J. SMITH

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

ANNA J. SMITH, a Married Woman, Plaintiff,
vs.

CASE NO. 2:13-cv-00257 COMPLAINT

BARACK H. OBAMA, in his official capacity as President of the United States of America; 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; ERICH. 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 oflnvestigation,

Defendants.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1.

This lawsuit challenges the government's search and seizure of Plaintiff Anna

Smith's telephone records under Section 215 of the Patriot Act, 50 U.S.C. § 1861.1

2.

The government acknowledges that it is relying on Section 215 to collect

"metadata" about every phone call made or received by residents of the United States.

3.

The practice is akin to having a government official monitoring every call to

determine who Plaintiff Anna Smith spoke to, when Anna Smith talked, for how long, and from

where.

4.

The government now possesses information about Plaintiff Anna Smith,

including but not limited to her associations and public movements, revealing a wealth of detail

about her familial, political, professional, religious, and intimate associations.

5.

The government has confirmed the authenticity of an order issued six weeks ago

by the Foreign Intelligence Surveillance Court ("FISC") requiring Verizon Business Network

Services, Inc. to tum over, every day, metadata about the calls made by each of its subscribers

over the three-month period ending on July 19, 2013.

6.

Upon information and belief, Plaintiff Anna Smith believes a similar order was

sent to Verizon Wireless, which is a joint venture between Verizon Communications, Inc. and

Vodafone (hereinafter referred to as "Verizon Wireless").

7.

It is believed that Verizon Wireless is part of a program that has been in place for

seven years and that collects records of all telephone communications of every customer of a

major phone company, including Verizon Wireless.

1 "The Patriot Act" is formally referred to as Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of2001, Pub. L. No. 107-56, 115 Stat. 272.
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JURISDICTION AND VENUE

8.

This case arises under the Constitution and the laws of the United States and

presents a federal question within this Court's jurisdiction under Article III of the Constitution

and 28 U.S.C. § 1331. The Court also has jurisdiction under the Administrative Procedure Act, 5

U.S.C. § 702. The Court has authority to grant declaratory relief pursuant to the Declaratory

Judgment Act, 28 U.S.C. §§ 2201-2202. The Court has authority to award costs and attorneys

fees under 28 U.S.C. § 2412.

9.

Venue is proper in this district under 28 U.S.C. § 1391(b)(2), (c)(2).

PLAINTIFF 10. Plaintiff Anna Smith is a current Verizon Wireless subscriber and a resident of

Kootenai County, Idaho.

11. Plaintiff Anna Smith has been a customer of Verizon for at least 3 years and

previously was a customer of AT&T Wireless for 4 years.

DEFENDANTS 12. Defendant Barack H. Obama is the President of the United States. President

Obama has ultimate authority over executive branch of the government.

13. Defendant James R. Clapper is the Director of National Intelligence ("DNI").

Defendant Clapper has authority over the activities ofthe intelligence community.

14. Defendant Lt. Gen. Keith B. Alexander is the Director of the National Security

Agency ("NSA") and the Chief of the Central Security Service. Defendant Lt. Gen. Alexander

has authority for supervising and implementing all operations and functions of the NSA, the

agency responsible for conducting surveillance authorized by the challenged law.

15. Defendant Charles T. Hagel is the Secretary of Defense. Defendant Hagel has

authority over the Department of Defense, of which the NSA is a component.

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16. Defendant Eric H. Holder is the Attorney General of the United States. Attorney General Holder has authority over the Department of Justice and the Federal Bureau of Investigation ("FBI") and is responsible for overseeing aspects of the challenged statute.
17. Defendant Robert S. Mueller III is the Director of the FBI and is responsible for applications made to the FISC under Section 215 of the Patriot Act.
BACKGROUND
The Foreign Intelligence Surveillance Act 18. In 1978, Congress enacted the Foreign Intelligence Surveillance Act ("FISA") to govern surveillance conducted for foreign-intelligence purposes. The statute created the FISC, a court composed of eleven federal district court judges. FISC is empowered to grant or deny government applications for surveillance orders in foreign-intelligence investigations. 19. Congress enacted FISA after years of in-depth congressional investigation by the committees chaired by Senator Frank Church (the former Senator from Idaho) and Representative Otis Pike, which revealed that the Executive Branch had engaged in widespread warrantless surveillance of United States citizens-including journalists, activists, and members of Congress-"who engaged in no criminal activity and who posed no genuine threat to the national security."
Section 215 of the Patriot Act 20. Section 215 of the Patriot Act is often referred to as FISA's "business records" provision. 21. Section 215 expanded the scope of the items that the FBI may obtain using this authority from "records" to "any tangible things (including books, records, papers, documents, and other items)."
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22. FISA requires only the records or things sought be "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."
23. Production orders issued under Section 215 are accompanied by gag orders generally forbidding recipients from revealing "that the Federal Bureau oflnvestigation has sought or obtained tangible things."
24. Recipients may challenge gag orders "[n]ot less than 1 year after the date of the issuance of the production order." Ifa recipient challenges a gag order, the FISC must treat the government's claim "that disclosure may endanger the national security of the United States or interfere with diplomatic relations ... as conclusive."
25. On June 5, 2013, The Guardian disclosed that, under Section 215, the NSA acquires the metadata for every phone call made or received by customers of Verizon Wireless "on an ongoing daily basis."
PLAINTIFF'S ALLEGATIONS 26. Plaintiff Anna Smith is a mom and a neonatal intensive care nurse. 27. Plaintiff Anna Smith's primary means of communication is with her cell phone. 28. Plaintiff Anna Smith's communicates with her family, friends, employer, her children's teachers, her doctor, her legal counsel, and nearly every one else by way of her cell phone. 29. None of these communications relate in anyway to international terrorism or clandestine intelligence activities. 30. Rather, these communications are being monitored simply because they are occurring.
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31. As an American citizen, Plaintiff Anna Smith possesses a Constitutional Right to be free of monitoring by her government.
32. Moreover, some of these communications, including communications between Plaintiff Anna Smith and her doctor, are extremely private and confidential.
33. Verizon Wireless provides information to the government about Plaintiff Anna Smith's wireless communications under a secret order issued by a secret court.
34. On June 5, 2013, The Guardian published a FISC order directing Verizon Business Network Services, Inc. to produce to the National Security Agency "on an ongoing daily basis ... all call detail records or 'telephony metadata'" of its customers' calls, including those "wholly within the United States." Secondary Order at 2, In re Application ofthe FBIfor an Order Requiring the Prod. ofTangible Things from Verizon Bus. Network Servs., Inc. on BehalfofMCI Commc 'n Servs., Inc. d/b/a Verizon Bus. Servs., No. BR 13-80 (FISC Apr. 25, 2013), available athttp://bit.ly/11FY393.
35. Plaintiff Anna Smith believes that a similar order was issued to Verizon Wireless on the same date (April 25, 2013) and it also expires on July 19, 2013. The order was issued ex parte, and there is no procedure for Plaintiff Anna Smith to challenge it in the FISC. Moreover, Plaintiff Anna Smith has no way of knowing it even exists.
36. Since news story was run by The Guardian, the government, including Defendant Clapper and President Obama have confirmed the existence of the program and provided additional detail.
37. Defendant Clapper stated: "[t]he judicial order that was disclosed in the press is used to support a sensitive intelligence collection operation"; "[t]he only type of information
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acquired under the Court's order is telephony metadata, such as telephone numbers dialed and length of calls"; and "[t]he [FISC] reviews the program approximately every 90 days."
38. President Obama acknowledged that the intelligence community is tracking phone numbers and the durations of calls.
39. Members of the congressional intelligence committees confirmed that the order extended the term of a seven-year program that the government uses to gather telephone records of all Americans.
40. As a customer of Verizon Wireless, Plaintiff Anna Smith is likely covered by a similar order of the FISC requiring Verizon Wireless to tum over all of Plaintiff Anna Smith's call records--on an ongoing basis.
41. Upon information and belief, Plaintiff Anna Smith's communications have been monitored for at least 7 years, while she was a wireless customer of Verizon Wireless and AT&T.
42. This monitoring is distressing and a violation of Plaintiff Anna Smith's Constitutional rights.
CAUSES OF ACTION 43. The Mass Call Tracking exceeds the authority granted by 50 U.S.C. § 1861, and thereby violates 5 U.S.C. § 706. 44. The Mass Call Tracking violates the First Amendment to the Constitution. 45. The Mass Call Tracking violates the Fourth Amendment to the Constitution.
PRAYER FOR RELIEF WHEREFORE the plaintiffs respectfully request that the Court: 1. Exercise jurisdiction over Plaintiff Anna Smith's Complaint;
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2. Declare that the Mass Call Tracking violates 50 U.S.C. § 1861 and 5 U.S.C. § 706;
3. Declare that the Mass Call Tracking violates the First and Fourth Amendments to the Constitution;
4. Permanently enjoin Defendants from continuing the Mass Call Tracking under any Verizon Wireless order or any successor thereto;
5. Order Defendants to purge from their possession all of the call records of Plaintiff Anna Smith's communications in their possession collected pursuant to the Mass Call Tracking;
6. Award Plaintiff Anna Smith fees and costs pursuant to 28 U.S.C. § 2412; 7. Grant such other and further relief as the deems just and proper. DATED this 12th day of June, 2013.
LUKINS & ANNIS, P.S.
Byc:p~ JS PETER J. SMITH IV, ISB 6997 Co-Counsel for Plaintiff ANNA J. SMITH
LUKE MALEK, ATTORNEY AT LAW, PLLC
~· &~ LUC:-=. MALEK, !SB 8610 Co-Counsel for Plaintiff ANNAJ. SMITH
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PETER J. SMITH IV, ISB 6997 Lukins & Annis, P.S. 601 E. Front Avenue, Suite 502 Coeur d’Alene, ID 83814 Phone: 208-667-0517 Fax: 208-664-4125 Email: psmith@lukins.com

LUCAS T. MALEK, ISB 8610 Luke Malek, Attorney at Law, PLLC 721 N 8th Street Coeur d’Alene, ID 83814 Phone: 208-661-3881 Email: Luke_Malek@hotmail.com

Attorneys for the Plaintiff ANNA J. SMITH

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

ANNA J. SMITH, vs.

Plaintiff,

CASE NO. 2:13-cv-00257 AMENDED COMPLAINT

BARACK H. OBAMA, in his official capacity as President of the United States of America; 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,

Defendants.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. Plaintiff Anna Smith (“Anna”) challenges the government’s gathering of her telephone records and location information under Section 215 of the Patriot Act, 50 U.S.C. § 1861.1
JURISDICTION AND VENUE 2. Article III of the Constitution and 28 U.S.C. § 1331 provides jurisdiction to this Court because this case arises under the Constitution and the laws of the United States and presents a federal question. 3. The Court has authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. 4. The Court has authority to award costs and attorneys fees under 28 U.S.C. § 2412. 5. Venue is proper in this district under 28 U.S.C. § 1391(b)(2), (c)(2).
PLAINTIFF 6. Anna is a neonatal intensive care nurse and a mother of two daughters. 7. Anna is a current Verizon Wireless subscriber and a resident of Kootenai County, Idaho. 8. Anna has been a customer of Verizon for at least 3 years and previously was a customer of AT&T Wireless for 4 years.
DEFENDANTS 9. Defendant Barack H. Obama is the President of the United States. President Obama has ultimate authority over executive branch of the government.
1 “The Patriot Act” is formally referred to as Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.
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10. Defendant James R. Clapper is the Director of National Intelligence (“DNI”). Defendant Clapper has authority over the activities of the intelligence community.
11. Defendant Lt. Gen. Keith B. Alexander is the Director of the National Security Agency (“NSA”) and the Chief of the Central Security Service. Defendant Lt. Gen. Alexander has authority for supervising and implementing all operations and functions of the National Security Agency (“NSA”), the agency responsible for conducting surveillance authorized by the challenged law.
12. Defendant Charles T. Hagel is the Secretary of Defense. Defendant Hagel has authority over the Department of Defense, of which the NSA is a component.
13. Defendant Eric H. Holder is the Attorney General of the United States. Attorney General Holder has authority over the Department of Justice and the Federal Bureau of Investigation (“FBI”) and is responsible for overseeing aspects of the challenged statute.
14. Defendant James B. Comey is the Director of the FBI and is responsible for applications made to the Foreign Intelligence Surveillance Court (“FISC”) under Section 215 of the Patriot Act.
PLAINTIFF’S ALLEGATIONS
15. It is now commonly known and acknowledged that the Verizon Business Network Services, Inc. is ordered by FISC to provide metadata for each subscriber on its network on a daily basis to the government.
16. Upon information and belief, Anna believes a similar order was issued to Verizon Wireless, which is a joint venture between Verizon Communications, Inc. and Vodafone (hereinafter referred to as “Verizon Wireless”).
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17. Even if Verizon Wireless was not ordered to produce the metadata by the FISC, the government still captures Anna’s personal information because “nearly all calls eventually travel over networks owned by U.S. companies that work with the NSA.” This captures 99% of all phone traffic in the United States. Wall Street Journal, June 14, 2013 available at http://online.wsj.com/news/articles/SB10001424127887324049504578543800240266368 last accessed November 4, 2013.
18. As with many Americans, Anna’s primary means of communication is with her cell phone.
19. Anna communicates with her family, friends, employer, her children’s teachers, her doctor, her legal counsel, and nearly every one else with her cell phone.
20. None of these communications relate in anyway to international terrorism or clandestine intelligence activities.
21. Anna has a subjective expectation of privacy that metadata from these communications is not collected, stored and monitored by the government.
22. The collection of metadata constitutes a violation of a legitimate expectation of privacy and, as an American citizen, Anna asserts that she has a reasonable expectation of privacy that metadata of her calls is not being gathered, stored and monitored by the government.
23. Though Anna voluntarily provides this information to a third-party (Verizon Wireless), she reasonably expects that this information will not shared with the government without her knowledge and consent or, at least, without a showing of probable cause.
24. This monitoring is distressing and a violation of Anna’s Constitutional rights.
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CAUSES OF ACTION 25. The Mass Call Tracking exceeds the authority granted by 50 U.S.C. § 1861, and thereby violates 5 U.S.C. § 706. 26. The Mass Call Tracking violates the First Amendment to the Constitution. 27. The Mass Call Tracking violates the Fourth Amendment to the Constitution.
PRAYER FOR RELIEF WHEREFORE the plaintiffs respectfully request that the Court: 1. Exercise jurisdiction over this Complaint; 2. Declare that the Mass Call Tracking violates 50 U.S.C. § 1861 and 5 U.S.C. § 706; 3. Declare that the Mass Call Tracking violates the First and Fourth Amendments of the Constitution; 4. Permanently enjoin Defendants from continuing to gather metadata on Plaintiff Anna Smith; 5. Order Defendants to purge all of metadata of Plaintiff Anna Smith’s communications collected pursuant to the Mass Call Tracking; 6. Award Plaintiff Anna Smith fees and costs pursuant to 28 U.S.C. § 2412; 7. Grant such other and further relief as the Court deems just and proper. DATED this 4th day of November, 2013.
LUKINS & ANNIS, P.S.

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By PETER J. SMITH IV, ISB 6997 Co-Counsel for Plaintiff ANNA J. SMITH

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AMENDED COMPLAINT - 6
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No. 14-35555 ______________________________________________________________

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
______________________________________________________________

ANNA J. SMITH,

Plaintiff–Appellant, v.

BARACK OBAMA, et al.,

Defendant–Appellees. ______________________________________________________________

On Appeal from the United States District Court for the District of Idaho, Boise; Case No. 2:13-cv-00257-BLW
The Honorable B. Lynn Winmill, Chief District Judge ______________________

APPELLANT’S REPLY BRIEF ______________________

Peter J. Smith IV LUKINS & ANNIS, P.S. 601 E. Front Avenue, Suite 502 Coeur d’Alene, ID 83814 Phone: 208-667-0517 Fax: 208-664-4125 Email: psmith@lukins.com
Lucas T. Malek LUKE MALEK, ATTORNEY AT LAW, PLLC 721 N 8th Street Coeur d’Alene, ID 83814 Phone: 208-661-3881 Email: Luke_Malek@hotmail.com

Cindy Cohn David Greene Hanni Fakhoury Andrew Crocker ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 Facsimile: (415) 436-9993 Email: cindy@eff.org

Jameel Jaffer Alex Abdo Patrick Toomey AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004 Telephone: (212) 549 2500 Facsimile: (212) 549-2654 Email: jjaffer@aclu.org
Richard Alan Eppink AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701 Telephone: (208) 344-9750 Facsimile: (208) 344-7201 Email: reppink@acluidaho.org

Counsel for Plaintiff-Appellant Anna J. Smith

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TABLE OF CONTENTS
INTRODUCTION .....................................................................................................1
ARGUMENT ............................................................................................................2
I. THE LONG-TERM COLLECTION AND AGGREGATION OF MRS. SMITH’S CALL RECORDS VIOLATES THE FOURTH AMENDMENT ...............................................................................................2
A. The Long-Term Collection and Aggregation of Mrs. Smith’s Call Records Is a Search...............................................................................2
B. The Call-Records Program Is Unconstitutional Because It Is Unreasonable ....................................................................................... 11
1. The Call-Records Program Is Unconstitutional Because It Is Warrantless and No Exception to the Warrant Requirement Applies ......................................................................................11
2. The Call-Records Program Is Unreasonable ............................13
II. MRS. SMITH HAS STANDING TO CHALLENGE THE CALLRECORDS PROGRAM................................................................................19
III. THE DISTRICT COURT ERRED IN DENYING MRS. SMITH’S MOTION FOR A PRELIMINARY INJUNCTION .....................................25
CONCLUSION .......................................................................................................27
CERTIFICATE OF COMPLIANCE ......................................................................29
CERTIFICATE OF SERVICE................................................................................30

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TABLE OF AUTHORITIES
Federal Cases
ACLU v. Clapper, 959 F. Supp. 2d 724 (S.D.N.Y. 2013).....................................................20, 21
Al-Haramain Islamic Found. v. Dep't of Treasury, 686 F.3d 965 (9th Cir. 2011)...................................................................11, 12
Bailey v. United States, 133 S. Ct. 1031 (2013) ....................................................................................8
Bd. of Educ. v. Earls, 536 U.S. 822 (2002) ......................................................................................14
Berger v. New York, 388 U.S. 41 (1967) ........................................................................................19
Camara v. Mun. Court, 387 U.S. 523 (1967) ......................................................................................14
Chandler v. Miller, 520 U.S. 305 (1997) ......................................................................................14
Chimel v. California, 395 U.S. 752 (1969) ........................................................................................3
Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013) ..................................................................................24
Coolidge v. New Hampshire, 403 U.S. 443 (1971) ........................................................................................8
Illinois v. Caballes, 543 U.S. 405 (2005) ......................................................................................25
Jewel v. NSA, 673 F.3d 902 (9th Cir. 2011)...................................................................19, 20
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Katz v. United States, 389 U.S. 347 (1967) ..............................................................................5, 6, 19
Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013) ................................................13, 17, 22, 23
Kyllo v. United States, 533 U.S. 27 (2001) ....................................................................................9, 15
Laird v. Tatum, 408 U.S. 1 (1972) ..........................................................................................24
Maryland v. King, 133 S. Ct. 1958 (2013) ......................................................................14, 15, 17
Mich. Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) ................................................................................13, 14
Mincey v. Arizona, 437 U.S. 385 (1978) ........................................................................................8
OSU Student Alliance v. Ray, 699 F.3d 1053 (9th Cir. 2012).......................................................................21
Rakas v. Illinois, 439 U.S. 128 (1978) ........................................................................................7
Riley v. California, 134 S. Ct. 2473 (2014) ...........................................................................passim
Samson v. California, 547 U.S. 843 (2006) ......................................................................................18
Silverman v. United States, 365 U.S. 505 (1961) ......................................................................................15
Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602 (1989) ................................................................................13, 14

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Smith v. Maryland, 442 U.S. 735 (1979) ...............................................................................passim
Soldal v. Cook Cnty., 506 U.S. 56 (1992) ........................................................................................15
United States v. Buck, 548 F.2d 871 (9th Cir. 1977).........................................................................11
United States v. Calandra, 414 U.S. 338 (1974) ......................................................................................15
United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013).....................................................................5, 16
United States v. Crist, 627 F. Supp. 2d 575 (M.D. Pa. 2008) ...........................................................16
United States v. Garcia, 474 F.3d 994 (7th Cir. 2007)...........................................................................5
United States v. Jones, 132 S. Ct. 945 (2012) ..................................................................................3, 8
United States v. Knights, 534 U.S. 112 (2001) ......................................................................................18
United States v. Knotts, 460 U.S. 276 (1983) ....................................................................................3, 4
United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010) ................................................................3, 4, 8
United States v. Nerber, 222 F.3d 597 (9th Cir. 2000)...........................................................................4
United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010).........................................................................4

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United States v. Place, 462 U.S. 696 (1983) ......................................................................................24
United States v. Saboonchi, 990 F. Supp. 2d 536 (D. Md. 2014) ..............................................................16
United States v. Taketa, 923 F.2d 665 (9th Cir. 1991).........................................................................16
United States v. U.S. Dist. Ct. ("Keith"), 407 U.S. 297 (1972) ......................................................................................11
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) ......................................................................................15
United States v. Young, 573 F.3d 711 (9th Cir. 2009).........................................................................25
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) ......................................................................................14
Federal Statutes
18 U.S.C. § 2703 .....................................................................................................19
18 U.S.C. § 2709 .....................................................................................................19
18 U.S.C. § 3122 .....................................................................................................19
18 U.S.C. § 3125 .....................................................................................................19
18 U.S.C. §§ 2510–2522 .........................................................................................19
50 U.S.C. § 1842 .....................................................................................................19
Federal Rules
Fed. R. Crim. P. 17 ................................................................................................. 19

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Constitutional Provisions
U.S. Const., amend. IV.................................................................................... passim
Other Authorities
David S. Kris, On the Bulk Collection of Tangible Things, 1 Lawfare Research Paper Series No. 4 (Sept. 29, 2013) ..............................................................27
Jonathan Mayer & Patrick Mutchler, MetaPhone: The Sensitivity of Telephone Metadata (Mar. 12, 2014)................................................................................2
Kent German, Quick Guide to Cell Phone Carriers, CNET (May 27, 2014).........20
Letter from Att’y Gen. Eric Holder and Dir. of Nat’l Intel. James Clapper to Sen. Patrick Leahy (Sep. 2, 2014).........................................................................12
Memorandum for Staff Dir., H. Permanent Select Comm. on Intel. (June 29, 2009) .............................................................................................................27
Privacy and Civil Liberties Oversight Board, Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court (Jan. 23, 2014) ......................................................................................................passim
Peter Swire & Kenesa Ahmad, Encryption and Globalization, 13 Colum. Sci. & Tech. L. Rev. 416 (Nov. 16, 2011) .................................................................9
Presidential Review Group on Intelligence and Communications Technologies, Liberty and Security in a Changing World (Dec. 12, 2013) ..................passim
Strengthening Privacy Rights and National Security: Hearing Before the S. Comm. on the Judiciary, 113th Cong. (July 31, 2013) .................................21
Transcript: NSA Deputy Dir. John Inglis, NPR (Jan. 10, 2014, 6:19 AM) ............22
White House, Office of the Press Secretary, Fact Sheet: The Administration’s Proposal for Ending the Section 215 Bulk Telephony Metadata Program (Mar. 27, 2014) .............................................................................................12
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INTRODUCTION The government’s ongoing collection of Anna Smith’s call records violates the Fourth Amendment. The government contends that Smith v. Maryland, 442 U.S. 735 (1979), controls this case, but that case involved the collection of a single criminal suspect’s call records over a period of several days; it did not involve dragnet surveillance, which—as the Supreme Court has recognized—raises constitutional questions of an entirely different order. To accept the government’s view that the Constitution is indifferent to that distinction is to accept that the government may collect in bulk not just call records, but many other records as well. It is to accept that the government may also create a permanent record of every person Americans contact by email; every website they visit; every doctor or lawyer they consult; and every financial transaction they conduct. The Constitution does not condone that result. Mrs. Smith is entitled to preliminary relief because she is likely to succeed on the merits, but other factors also weigh in favor of preliminary relief. The callrecords program is causing irreparable injury to her privacy on an ongoing, daily basis. Further, both the balance of equities and the public interest weigh in favor of injunctive relief. Since Mrs. Smith commenced this action, the Privacy and Civil Liberties Oversight Board (“PCLOB”), the President’s Review Group on Intelligence and Communications Technologies (“PRG”), and even the President

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himself have concluded that the government can track the associations of suspected terrorists without collecting Americans’ phone records in bulk. Granting preliminary relief would mitigate Mrs. Smith’s injuries without compromising any legitimate governmental interest.
ARGUMENT I. THE LONG-TERM COLLECTION AND AGGREGATION OF MRS.
SMITH’S CALL RECORDS VIOLATES THE FOURTH AMENDMENT A. The Long-Term Collection and Aggregation of Mrs. Smith’s Call
Records Is a Search. The long-term collection and aggregation of Mrs. Smith’s call records is a search within the meaning of the Fourth Amendment. See Pl. Br. 21–26. When collected in bulk, call records reveal religious, familial, political, and intimate relationships; sleeping and work habits; health problems; and business plans. Id. at 22–24. When the records of one individual are aggregated with the records of many others, the records become even more revealing. See, e.g., Felten Decl. ¶ 64 (ERII 101); Jonathan Mayer & Patrick Mutchler, MetaPhone: The Sensitivity of Telephone Metadata (Mar. 12, 2014), http://bit.ly/1CqOaPK (study demonstrating use of telephony metadata to reveal who obtained an abortion, who sought medical treatment, or who owns particular kinds of firearms). The government contends that this case is controlled by Smith v. Maryland, but while that case involved the collection of call records, it did not involve the
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collection of call records over an extended period of time or in bulk. It held only that the Fourth Amendment is not implicated by the government’s collection of a single criminal suspect’s call records over a period of a few days.
The Fourth Amendment analysis is not indifferent to the scale and intrusiveness of the government’s surveillance. Just four years after it decided Smith, the Supreme Court explicitly recognized that the distinction between narrow surveillance and dragnet surveillance is a constitutionally significant one. See Pl. Br. 18 (discussing United States v. Knotts, 460 U.S. 276 (1983)). More recently, in United States v. Jones, 132 S. Ct. 945 (2012), five Justices concluded that the longterm tracking of an individual in public amounted to a search under the Fourth Amendment. See Pl. Br. 18–23; see also United States v. Maynard, 615 F.3d 544, 557 (D.C. Cir. 2010), aff’d sub nom. Jones, 132 S. Ct. 945. They reached this conclusion even though the Supreme Court had previously concluded that shorterterm tracking did not amount to a search. See Knotts, 460 U.S. at 281–82.
Thus, Smith no more controls in this case than Knotts controlled the outcome in Maynard or the reasoning of the concurrences in Jones. And it no more controls in this case than the Supreme Court’s prior search-incident-to-arrest cases, like Chimel v. California, 395 U.S. 752 (1969), controlled in Riley v. California, 134 S. Ct. 2473 (2014). As the Supreme Court recognized in Riley, any extension of past

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doctrine to surveillance that is substantially more intrusive “has to rest on its own bottom.” Id. at 2489.
The government characterizes the obvious and glaring distinctions between this case and Smith as “immaterial.” Gov’t Br. 44, 47. But this characterization disregards the express acknowledgment in Knotts and the later holding of this Court in United States v. Nerber that the duration of surveillance does matter. Knotts, 460 U.S. at 283–84 (stating that “different constitutional principles may be applicable” to “twenty-four hour surveillance”); United States v. Nerber, 222 F.3d 597, 600 (9th Cir. 2000). As this Court stated, “We reject the government’s broad argument that a court may never consider the severity of the governmental intrusion in determining whether a citizen has a legitimate expectation of privacy.” Nerber, 222 F.3d at 600. The government’s argument also fails to grapple with the reasoning of the D.C. Circuit’s decision in Maynard, which refused to extend Knotts to long-term location tracking, explaining that Knotts did not determine whether “prolonged surveillance” requires a warrant. Maynard, 615 F.3d at 558. This Court recently echoed that reasoning: “We, like the Seventh Circuit, believe that ‘[s]hould [the] government someday decide to institute programs of mass surveillance of vehicular movements, it will be time enough to decide whether the Fourth Amendment should be interpreted to treat such surveillance as a search.’” United States v. Pineda-Moreno, 591 F.3d 1212, 1217 (9th Cir. 2010) (alterations
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in original) (quoting United States v. Garcia, 474 F.3d 994, 998 (7th Cir. 2007)), vacated on other grounds, 132 S. Ct. 1533 (2012).
Finally, the government’s argument ignores the teaching of Riley: that quantitative changes can make a qualitative difference. In Riley, the government argued that “a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of [analogous] physical items.” Riley, 134 S. Ct. at 2488. The Supreme Court dismissed that argument:
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. Id. at 2488–89; see also United States v. Cotterman, 709 F.3d 952, 965 (9th Cir. 2013) (“Technology has the dual and conflicting capability to decrease privacy and augment the expectation of privacy.”). The upshot is this: legal principles developed in the context of the targeted and short-term collection of call records cannot be extended blindly to contexts involving the collection of call records over long periods of time and en masse. Rather, to decide the Fourth Amendment issue here, the Court must answer a question that the Supreme Court has never confronted—whether the government’s long-term collection and aggregation of call records invades a reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). For reasons already explained, it does. See Pl. Br. 21–26;

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see also Felten Decl. ¶¶ 38–64 (ERII 92–101); PCLOB, Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court 156–58 (Jan. 23, 2014), http://bit.ly/1d01flI (“PCLOB Report”); PRG, Liberty and Security in a Changing World 110–17 (Dec. 12, 2013), http://1.usa.gov/1cBct0k (“PRG Report”).1
The government contends that its collection of call records does not implicate the Fourth Amendment because call records consist of information entrusted by Americans to third-parties. See Gov’t Br. 39–40, 57–58. As Plaintiff has explained, however, Pl. Br. 24–26, the third-party doctrine has never operated with this kind of rigidity. If the transfer of information to a third party were enough to extinguish an expectation of privacy, the Fourth Amendment would not protect even the content of phone calls and emails—but even the government concedes that this kind of content is protected. A third party’s possession of information is surely relevant to the Katz analysis in some contexts, but it is not determinative. If

1 There are other important differences between the surveillance at issue here and the surveillance the Supreme Court considered in Smith. The call records collected by the NSA today include call duration, information about location (the “trunk identifier” provides a rough approximation of location), and identification information for the specific device used to make or receive the call. See Verizon Secondary Order (ERII 117). The government did not collect any of this information in Smith. Indeed, the pen register considered in Smith could not even indicate whether any particular call had been completed. 442 U.S. at 741.
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it were, many previous cases would have come out the other way. See Pl. Br. 24– 25 (citing cases).
The government’s contention that call records are unprotected because they are “business records,” see Gov’t Br. 40–43, is equally misguided. As an initial matter, it is not clear why Plaintiff’s call records should be characterized as business records—the government has not pointed to any evidence that Verizon Wireless uses the records to make business decisions. Moreover, the government has said previously that the call-records program is necessary because many telecommunications providers do not keep their subscribers’ call records for long periods. In other words, the program is predicated on the reality that some phone carriers do not maintain the call records as business records.
In any event, the question of Mrs. Smith’s expectation of privacy in her call records cannot be answered by a mechanical appeal to formalism. It must be answered, instead, by considering the expectations that society is prepared to accept as reasonable. See Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978) (“Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”).
The government argues that it would be more convenient for law enforcement if the courts established a bright-line rule that extinguished all privacy
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in information shared with others. See Gov’t Br. 40. The government is surely right about this. The Bill of Rights exists, however, not to serve governmental efficiency but to safeguard individual liberty. Cf. Bailey v. United States, 133 S. Ct. 1031, 1041 (2013) (“‘[T]he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.’” (quoting Mincey v. Arizona, 437 U.S. 385, 393 (1978))); Riley, 134 S. Ct. at 2493 (“Our cases have historically recognized that the warrant requirement is ‘an important working part of our machinery of government,’ not merely ‘an inconvenience to be somehow “weighed” against the claims of police efficiency.’” (quoting Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971))). Notably, the government made the same appeal for a bright-line rule in Jones and Maynard, see, e.g., Brief for the United States at 13, Jones, 132 S. Ct. 945, but the Supreme Court and D.C. Circuit rejected it.
The government misses the point in arguing that Plaintiff’s attempt to distinguish Smith ignores the similarities between call records today and call records in 1979. Gov’t Br. 50. As in Riley and Maynard, what is novel here is not primarily the nature of the data collected, but the scale of the collection. See Riley, 134 S. Ct. at 2489 (“One of the most notable distinguishing features of modern cell phones is their immense storage capacity.”). In 1979, the government simply could not collect or analyze the “vast quantities of personal information” that the digital
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era allows it to. Id. at 2485. Indeed, new technology “allows even just one type of information to convey far more than previously possible.” Id. at 2489 (emphasis added).
In other words, technological advances have vastly augmented the government’s surveillance power and exposed much more personal information to government inspection and intrusive analysis. If courts ignored this reality, the essential privacy long preserved by the Fourth Amendment would be eliminated. See, e.g., Kyllo v. United States, 533 U.S. 27, 34 (2001) (“The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.”). As Professor Peter Swire, a member of the President’s Review Group, observed:
Today should be understood as a “golden age for surveillance,” in which surveillance activities are in fact greatly enhanced compared to previous periods. Surprising as it may sound to some, law enforcement and intelligence agencies’ surveillance capabilities are actually greatly enhanced by the current mix of new technologies.2
Ultimately even the government seems uncomfortable with the implications of its theory, and accordingly it places heavy emphasis on the back-end restrictions that limit the circumstances in which the government can access and disseminate the call records it has collected. See generally Gov’t Br. 37–60. The Supreme Court has already rejected the argument that “government agency protocols” are a 2 Peter Swire & Kenesa Ahmad, Encryption and Globalization, 13 Colum. Sci. & Tech. L. Rev. 416, 464 (Nov. 16, 2011), http://ssrn.com/abstract=1960602.
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substitute for a warrant. Riley, 134 S. Ct. at 2491. But more importantly, the government’s argument is a bait and switch. If the government is right about Smith, nothing would preclude it from eliminating virtually all of the restrictions it highlights. It could collect subscribers’ names. It could review all of the call records it collects and for any reason at all. It could do so without court involvement. It could keep the records indefinitely. And it could disseminate them without restriction. Moreover, it could do all of this for every category of information arguably analogous to the phone numbers dialed in Smith, such as email metadata, text-message metadata, and internet-usage records. This is the true reach of the government’s argument. If the government is right that Smith controls this case, then all of the restrictions it emphasizes are constitutionally superfluous—they are simply a matter of executive or legislative grace.3

3 The government relies heavily on the fact that the call-records program was authorized by the FISC, see generally Gov’t Br. 37–60, but this Court owes the FISC no deference. Proceedings before the FISC are not adversarial, and many of the arguments presented by Plaintiff here have never been presented to the FISC, much less by any party with an interest in presenting them persuasively.
The government’s argument that Congress ratified the FISC’s interpretation of Section 215 when it reauthorized that provision in 2009 and 2011, see Gov’t Br. 59, is also misguided. Even if Congress had ratified the program, Congress’s ratification would not be an answer to Plaintiff’s claim here, because Plaintiff’s claim is a constitutional one. But there was no ratification. The FISC did not issue any opinion explaining its basis for authorizing the program until 2013; the government never shared its legal analysis of the program with Congress prior to that time; many members of Congress did not know about the program at all; and even those members of Congress who knew about the program were foreclosed
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B. The Call-Records Program Is Unconstitutional Because It Is Unreasonable.
The phone-records program violates the Fourth Amendment’s warrant
clause. Even if an exception to that clause applied, the program would be
unconstitutional because it is unreasonable. See Pl. Br. 29–36.
1. The Call-Records Program Is Unconstitutional Because It Is Warrantless and No Exception to the Warrant Requirement Applies.
The bulk collection of call records is per se unreasonable because it is
warrantless and no exception to the Fourth Amendment’s warrant requirement
applies. The government invokes the special-needs doctrine, Gov’t Br. 60, but the
special-needs doctrine applies only where compliance with the probable-cause and
warrant requirements would be impracticable. See Pl. Br. 29–30. Thus, in Al-
Haramain Islamic Foundation v. Department of Treasury, 686 F.3d 965, 992–93
(9th Cir. 2011), the Court rejected a warrantless seizure based on a foreign-
intelligence need after concluding that the government could accomplish its purpose by obtaining a warrant.4
from conferring with staff, exchanging views with each other, or disclosing even the existence of the program to their constituents. See PCLOB Report 95–102. 4 The Supreme Court has never endorsed the application of the special-needs exception to foreign-intelligence activities. See United States v. U.S. Dist. Ct. (Keith), 407 U.S. 297, 321–22 (1972). Lower courts that have recognized a foreign-intelligence exception have done so only where the government’s surveillance was narrowly targeted at foreign agents. See, e.g., United States v. Buck, 548 F.2d 871, 875 (9th Cir. 1977).
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The same logic applies here. It would not be impracticable for the government to acquire phone records—including those within one or two hops of its surveillance targets—on an individualized basis. See id. Indeed, the government does not dispute that fact, see Gov’t Br. 67–68, and it has endorsed legislation that would end bulk collection in favor of targeted requests to phone companies.5 See White House, Office of the Press Secretary, Fact Sheet: The Administration’s Proposal for Ending the Section 215 Bulk Telephony Metadata Program (Mar. 27, 2014), http://1.usa.gov/1gS2HK0; Letter from Att’y Gen. Eric Holder and Dir. of Nat’l Intel. James Clapper to Sen. Patrick Leahy (Sept. 2, 2014) http://bit.ly/1tum5r1 (supporting the USA FREEDOM Act, S. 2685, as an “approach [that] will accommodate operational needs while providing appropriate privacy protections”).
In this litigation, the government claims that there is a marginal advantage to possessing at the outset all of the records it might one day want to review. See Gov’t Br. 61, 65; Giacalone Decl. ¶ 29 (ERII 76) (stating that the bulk collection of call records “enhances and expedites the ability to identify chains of

5 The government emphasizes that it queried fewer than 300 phone numbers using the NSA’s call-records database in 2012, see Gov’t Br. 13, but that only underscores its ability to make such requests on a targeted basis. See Al-Haramain, 686 F.3d at 993 (finding that special-needs exception did not apply where “the number of designated persons located within the United States appears to be very small”).
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communications across multiple providers”); see also Klayman v. Obama, 957 F. Supp. 2d 1, 39–40 (D.D.C. 2013). But the claim that bulk collection is more efficient for the government does not establish that obtaining a warrant would be impracticable. If efficiency alone were determinative, the Fourth Amendment’s warrant requirement would have no force at all.
In any event, the public record does not support the contention that a more narrowly targeted program would actually be less effective or efficient. See PRG Report 118–19 (concluding that “there are alternative ways for the government to achieve its legitimate goals, while significantly limiting the invasion of privacy and the risk of government abuse”); PCLOB Report 146 (“[W]e have seen little indication that the same result could not have been obtained through traditional, targeted collection of telephone records.”); see also Pl. Br. 34–35 (citing statements of Sen. Ron Wyden and NSA Dir. Keith Alexander).
2. The Call-Records Program Is Unreasonable. Even if an exception to the warrant requirement applied, the call-records program would be unconstitutional because it is unreasonable. See Pl. Br. 30–36. The Supreme Court has never applied that doctrine to searches as intrusive, sweeping, or extended as those at issue here. See, e.g., Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 631 (1989) (testing train operators for drug use); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 455 (1990) (checking automobile

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drivers for sobriety); Camara v. Mun. Court, 387 U.S. 523 (1967) (conducting sporadic building inspections for health-code purposes).
When the special-needs doctrine has been properly invoked, “a search may be reasonable despite the absence of [individualized] suspicion” only “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.” Chandler v. Miller, 520 U.S. 305, 314 (1997) (quoting Skinner, 489 U.S. at 624).
The bulk collection of Americans’ call records is extraordinarily intrusive, as the record shows, see Felten Decl. ¶¶ 38–64 (ERII 92–101), and as the government’s own analyses confirm. See PCLOB Report 12, 156–58; PRG Report 110–14, 116–17. The cases relied upon by the government, in contrast, involved minimally invasive searches or searches of individuals with diminished expectations of privacy. See Gov’t Br. 65; Maryland v. King, 133 S. Ct. 1958, 1978 (2013) (comparing the “reduced” expectation of privacy of one arrested on probable cause for a dangerous offense with that of “the average citizen”); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 665 (1995) (diminished expectation of privacy of student athletes “[t]he most significant element in this case”); Bd. of Educ. v. Earls, 536 U.S. 822, 830–32 (2002) (same); Sitz, 496 U.S. at 447 (“drivers briefly examined for signs of intoxication” at sobriety checkpoint).
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In King, for example, the State of Maryland took DNA samples from certain arrestees for the sole purpose of creating DNA fingerprints that revealed nothing more than the individuals’ identities. 133 S. Ct. at 1979 (“[T]he CODIS loci come from noncoding parts of the DNA that do not reveal the genetic traits of the arrestee.”). Here, the government collects and stores Americans’ call records for the very purpose of later querying them in full.
The government argues that the privacy intrusion here is mitigated by the fact that most of the collected data is never reviewed. See Gov’t Br. 65. The government’s bulk collection of such personally revealing information, however, cannot be made reasonable by back-end protocols. Cf. Riley, 134 S. Ct. at 2491. The privacy intrusion occurs at the moment of collection, when the government obtains personal information protected by the Fourth Amendment. See United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990) (“[A] violation of the [Fourth] Amendment is ‘fully accomplished’ at the time of an unreasonable governmental intrusion.” (quoting United States v. Calandra, 414 U.S. 338, 354 (1974))); accord Soldal v. Cook Cnty., 506 U.S. 56, 67 n.11 (1992); see also Kyllo, 533 U.S. at 37 (“[T]here is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor.” (citing Silverman v. United States, 365 U.S. 505, 512 (1961))).
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Moreover, the zone of privacy is pierced whether the government uses a human agent or simply a computer or device it controls to conduct its searches. See Cotterman, 709 F.3d at 958 (treating government’s use of “forensic software that often must run for several hours to examine” files stored on hard drives as a Fourth Amendment “search”); see also United States v. Crist, 627 F. Supp. 2d 575, 585 (M.D. Pa. 2008) (government’s use of “hash” analysis to review all computer files a Fourth Amendment “search” notwithstanding fact that no human agents looked at any files); United States v. Saboonchi, 990 F. Supp. 2d 536, 568 (D. Md. 2014) (similar). For instance, the privacy intrusion caused by surreptitious video recording has never turned on whether a government agent was actually reviewing the footage. See, e.g., United States v. Taketa, 923 F.2d 665, 676 (9th Cir. 1991) (“The videotaping was a continuous search of anyone who entered the camera’s field of vision.”). It is obvious why: a contrary rule would permit the government to collect and retain enormous amounts of private information about Americans who have done nothing wrong, just in case it wished to access that information later.6
6 Elsewhere, the government emphasizes that it is collecting phone numbers, not names, as if this mitigates or even eliminates the privacy intrusion. See Gov’t Br. 14. But phone numbers are every bit as identifying as names. Indeed, they are more so: while many people in the country may share the same name, no two phone subscribers share the same number. Moreover, it is trivial for the government to obtain a subscriber’s name once it has that subscriber’s phone number, using publicly available resources or the many subpoena authorities at its disposal. See
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On the other side of the balance—“the promotion of legitimate
governmental interests,” King, 133 S. Ct. at 1970—the government conflates its
interest in combating terrorism, which is substantial, with the incremental benefit
(if any) offered by the call-records program. Again, however, the PCLOB, the
PRG, and the President have come to the conclusion that the government can
accomplish its aims using individualized court orders. Moreover, as Judge Leon
observed in Klayman, “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.” 957 F. Supp. 2d at 40 (emphasis in original). Instead, the
government asks the Court to defer to its own vague, conclusory, and unsupported
claims that the program is “valuable,” Gov’t Br. 67, and to disregard the
substantial evidence that the call-records program is not necessary. See, e.g., PRG
Report 118–19; PCLOB Report 146; Pl. Br. 34–35. The government emphasizes
that the President intends to “maintain[] th[e] capabilit[ies]” of the program, Gov’t
Br. 62 (quotation marks omitted), but this is beside the point. The critical point is
Felten Decl. (ERII 86) ¶ 19 & n.14. For these reasons, the government itself treats phone numbers as identifying information in, for example, the context of Freedom of Information Act requests. See, e.g., Moore v. Obama, No. 09-5072, 2009 WL 2762827, at *1 (D.C. Cir. Aug. 24, 2009) (per curiam) (affirming FBI’s withholding of employee phone numbers); Smith v. Dep’t of Labor, 798 F. Supp. 2d 274, 284 (D.D.C. 2011) (“Generally, personal identifying information such as a person’s name, address, phone number, date of birth, criminal history, medical history, and social security number may be protected under Exemption 6.”).
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that the President, like many others, has concluded that the program’s capabilities can be maintained without bulk collection.
The government asserts that it need not adopt the narrowest method available to pursue its interests. The problem here, however, is that the government has chosen to employ the most-intrusive means possible. Even if the collection of everyone’s information were a “reasonably effective means” for the government to obtain information about its targets, Gov’t Br. 67, that is not an answer to the Fourth Amendment question. Reasonableness requires the Court to balance “on the one hand, the degree to which [the surveillance] 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) (quoting United States v. Knights, 534 U.S. 112, 119 (2001)).
The question, in other words, is whether the government’s unprecedented call-records dragnet is reasonable even though the President himself has acknowledged that it is unnecessary. To ask the question is to answer it. On one side of the constitutional balance, the privacy intrusion is substantial—even, in some respects, unprecedented. On the other, the government has conceded that bulk collection is not needed to maintain its capabilities. It has publicly endorsed pending legislation that would end the current bulk collection program in favor of targeted requests served on the phone companies. If reasonableness forbids
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anything, it surely forbids indiscriminate searches where the government itself has
conceded that “precise and discriminate” demands for private information would
suffice. Berger v. New York, 388 U.S. 41, 58 (1967).7
II. MRS. SMITH HAS STANDING TO CHALLENGE THE CALLRECORDS PROGRAM
The district court correctly concluded that Mrs. Smith has standing to bring
this challenge. Dist. Ct. Op. 3 n.2 (ERI 3). In fact, this Court in Jewel v. NSA, 673
F.3d 902, 909 (9th Cir. 2011), already ruled that another set of plaintiffs had
standing to raise a Fourth Amendment claim when considering, in part, the very
same mass collection of call records.8 The Jewel court reached its conclusion after
finding that the plaintiffs had alleged a concrete and particularized injury, noting:
7 The government has suggested that in the absence of legislation it cannot obtain information with the speed it requires, see Gov’t Br. 18, but that is not supported by the record. The government already has the ability to serve targeted requests for call records on phone companies using a number of authorities, and to demand prompt compliance, including in emergencies. See, e.g., 50 U.S.C. § 1842 (pen registers in foreign-intelligence investigations); 18 U.S.C. § 2709 (national security letters); 18 U.S.C. §§ 3122, 3125 (pen registers in law-enforcement investigations); 18 U.S.C. § 2703(d) (orders for stored telephone records); Fed. R. Crim. P. 17(c) (subpoena duces tecum). In any event, the fact that Congress has not yet enacted legislative changes cannot supply a valid reason for upholding a program that is unconstitutional. Cf. Katz, 389 U.S. 347 (government compelled to seek new legal authority from Congress after wiretapping scheme ruled unconstitutional); 18 U.S.C. §§ 2510–2522 (Title III). 8 See Jewel, 673 F.3d at 910 (plaintiffs alleged that the government “acquire[s] all or most long-distance domestic and international phone calls to or from AT&T long distance customers, including both the content of those calls and dialing, routing, addressing and/or signaling information”).
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“Significantly, Jewel alleged with particularity that her communications were part of the dragnet.” Id. at 910. The same is true for Mrs. Smith. See Am. Compl. ¶¶ 7– 8, 15–17, 22 (ERII 123–25) (alleging that the government is collecting Mrs. Smith’s telephone metadata).
Even in the absence of Jewel, however, Mrs. Smith would have standing to challenge the call-records program. It is virtually certain that her phone-service provider—Verizon Wireless—has received an order from the FISC because Verizon Wireless is the nation’s largest wireless carrier. See Kent German, Quick Guide to Cell Phone Carriers, CNET (May 27, 2014) http://cnet.co/1w3B9L3; see also Pl. Br. 36–38 (describing public statements and reports identifying Verizon Wireless as a participant in the NSA bulk-collection program); ACLU v. Clapper, 959 F. Supp. 2d 724, 735 (S.D.N.Y. 2013) (“While the Secondary Order does not cover calls placed on Verizon Wireless’s network, the Government acknowledged that it has collected metadata for substantially every telephone call in the United States since May 2006.”).
Moreover, even if Verizon Wireless has never received such an order, Mrs. Smith routinely places calls to individuals whose provider is Verizon Business Network Services (“Verizon Business”), which the government concedes has received an order compelling it turn over call records in bulk. Gov’t Br. 31; see also Am. Compl. ¶ 17 (ERII 125). Indeed, Mrs. Smith is represented by, among
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others, attorneys from the ACLU, and Verizon Business is the ACLU’s telephone provider. Clapper, 959 F. Supp. 2d at 735. Finally, even if Mrs. Smith has not yet proven that her communications were collected, that is not a basis for dismissal, as the government alleges; rather, Mrs. Smith has offered specific, credible allegations that her call records were collected, Am. Compl. ¶¶ 1, 7–8, 16–17, 22 (ERII 123–25), and she should be permitted the opportunity to conduct discovery like any other litigant. See, e.g., OSU Student Alliance v. Ray, 699 F.3d 1053, 1078 (9th Cir. 2012).
In an effort to shield its surveillance activities from judicial review, the government contends that the call-records program does not entail the collection of every call record. Gov’t Br. 32–33. In explaining the program to Congress and the public, however, the government has emphasized not only that the program is comprehensive, but that this comprehensiveness is the key to its utility. Thus, Robert Litt, General Counsel of the Office of the Director of National Intelligence testified before Congress that: “In order to find the needle that matched up against that number, we needed the haystack, right. That’s what the premise is in this case.”9 Similarly, NSA Deputy Director John Inglis defended the program by saying: “If you’re looking for a needle in the haystack you need the haystack. So

9 Strengthening Privacy Rights and National Security: Hearing Before the S. Comm. on the Judiciary, 113th Cong. (July 31, 2013), http://bit.ly/ZFmRov.
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you wouldn’t want to check a database that only has one third of the data, and say there’s a one third chance that I know about a terrorist plot, there’s a two thirds chance I missed it because I don’t have that data.”10
The government appears to be asking this Court to believe that the callrecords program is comprehensive enough to be very effective but not so comprehensive that Mrs. Smith should be permitted to challenge its constitutionality. This proposition is not just self-serving but implausible. Faced with the same argument from the government, the district court in Klayman observed: “[T]he 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. Candor of this type defies common sense and does not exactly inspire confidence.” Klayman, 957 F. Supp. 2d at 27.
The government’s argument that Mrs. Smith lacks standing because she cannot show that the government has reviewed the call records it has collected, Gov’t Br. 34, is misguided. Mrs. Smith complained not only about the government’s review of her records but about its acquisition of her records in the first instance. See, e.g., Am. Compl. ¶ 1 (ERII 123). Though the government’s

10 Transcript: NSA Deputy Dir. John Inglis, NPR (Jan. 10, 2014, 6:19 AM), http://n.pr/1bZ9Rc3.
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subsequent use of Mrs. Smith’s records aggravates her injuries, Mrs. Smith need not establish anything about the government’s subsequent use of her records in order to challenge the government’s initial collection of them. The government’s collection of Mrs. Smith’s call records inflicts an injury sufficient by itself to support standing.11
In fact, the government’s argument that there is no case or controversy until an analyst reviews the information the government has collected is not simply wrong but radically so. Consider the implications: If 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. The Constitution would be engaged, if at all, only when the government decided to review the data it had collected. The government supplies no authority for the proposition that the Constitution is indifferent to the government’s accumulation of vast quantities of sensitive information about

11 In any event, even if the relevant question were whether the NSA had reviewed Mrs. Smith’s records, the government has effectively acknowledged that it has done so. Klayman, 957 F. Supp. 2d at 28 & n.38 (“When the NSA runs such a query [on a foreign phone number], its system must necessarily analyze 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 targeted number.”) (emphasis in original).
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Americans’ lives—let alone for the proposition that such surveillance does not even trigger Article III.
The government’s reliance on Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), and Laird v. Tatum, 408 U.S. 1 (1972), is also misplaced. The Clapper Court concluded that the plaintiffs lacked standing not because the plaintiffs failed to demonstrate that their communications had been “retrieved” from government databases but because the plaintiffs failed to demonstrate even a “substantial risk” that their communications would be collected in the future. Amnesty, 133 S. Ct. at 1150 n.5. Similarly, in Laird, the plaintiffs complained not about the collection of their information but about the possibility that the information collected would be misused in the future. See Laird, 408 U.S. at 13.
Finally, the government suggests that the NSA’s automated searches of phone records are like dog sniffs for contraband and thus do not implicate the privacy of those whose records are not responsive to the queries. Gov’t Br. 24–25, 36. That argument reflects a deep misunderstanding of the contraband doctrine. The doctrine does not turn on the fact that a dog is conducting the search—after all, the dog is acting as an instrument of the government. See United States v. Place, 462 U.S. 696, 706 (1983). The doctrine turns, instead, on the fact that the search turns up only contraband, in which there is no reasonable expectation of privacy. See, e.g., id. at 707 (“A ‘canine sniff’ by a well-trained narcotics detection
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dog, however, . . . does not expose noncontraband items that otherwise would remain hidden from public view . . . .”); Illinois v. Caballes, 543 U.S. 405, 410 (2005) (“The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s hopes or expectations concerning the nondetection of contraband in the trunk of his car.”); see also United States v. Young, 573 F.3d 711, 720–21 (9th Cir. 2009). Here, however, the government is collecting not contraband but information relating to constitutionally protected associations. III. THE DISTRICT COURT ERRED IN DENYING MRS. SMITH’S
MOTION FOR A PRELIMINARY INJUNCTION For the reasons above, Mrs. Smith is likely to succeed on the merits of her claim. She will also suffer irreparable harm if a preliminary injunction is not granted: the NSA’s daily collection of her phone records infringes her privacy and Fourth Amendment right to be free of unreasonable searches and seizures. Indeed, given that the alleged infringement is a constitutional one, under this Court’s case law the Court is entitled to presume irreparable harm. See Pl. Br. 38–39. The balance of hardships and the public interest also counsel in favor of granting preliminary relief. Each day brings new incursions into Mrs. Smith’s constitutionally protected privacy rights, as the NSA collects a new set of her call records. The preliminary relief she seeks would not prejudice the government because, as discussed above, the government need not collect Mrs. Smith’s records
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in order to obtain the call records of suspected terrorists and their contacts. See, e.g., PCLOB Report at 146 (stating that there is “little evidence that the unique capabilities provided by the NSA’s bulk collection of telephone records actually have yielded material counterterrorism results that could not have been achieved without the NSA’s Section 215 program”) (emphasis in original); PRG Report at 104 (“Our review suggests that the information contributed to terrorist investigations by the use of section 215 telephony meta-data was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders.”). Indeed, it is “most unlikely” that such a preliminary injunction would interfere with the government’s investigations because, as the government states, “the program is directed at identifying terrorist connections, and there is no allegation or evidence that metadata about [Mrs. Smith’s] calls” has ever contributed to such an investigation through a call-records query. Compare Gov’t Br. 55, with id. at 70 (claiming, without evidence, that Mrs. Smith’s call records could “reveal connections between individuals associated with terrorist activity”).
Finally, the government dramatically overstates the difficulty of implementing the requested injunction. See Gov’t Br. 69–70. The government appears to have already developed—and used for years—methods that allow it to isolate and exclude particular numbers from queries of the call-records database.
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See, e.g., David S. Kris, On the Bulk Collection of Tangible Things 13–14, 1
Lawfare Research Paper Series No. 4 (Sept. 29, 2013) (“NSA technicians may
access the metadata to make the data more useable—e.g., to create a ‘defeat list’ to
block contact chaining through ‘high volume identifiers’ presumably associated
with telemarketing or similar activity.” (quoting orders of the Foreign Intelligence
Surveillance Court)); see also Memorandum for Staff Dir., H. Permanent Select
Comm. on Intel. (June 29, 2009) http://goo.gl/Fl7OXw (describing NSA’s use of a
master “defeat” list in another bulk metadata program). Against this background,
the government’s complaint that a preliminary injunction would be
“extraordinarily burdensome,” Shea Decl. ¶ 68 (SER 27), is not credible. Both the
balance of hardships and the public interest weigh in favor of Mrs. Smith.
CONCLUSION For the reasons stated above, this Court should reverse the judgment below
and remand for entry of a preliminary injunction.
DATED: October 16, 2014 Respectfully submitted,
By: /s/ Peter Smith Peter J. Smith IV LUKINS & ANNIS, P.S. 601 E. Front Avenue, Suite 502 Coeur d’Alene, ID 83814
Lucas T. Malek LUKE MALEK, ATTORNEY AT LAW, PLLC 721 N 8th Street Coeur d’Alene, ID 83814
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Cindy Cohn David Greene Hanni Fakhoury Andrew Crocker ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109
Jameel Jaffer Alex Abdo Patrick Toomey AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004
Richard Alan Eppink AMERICAN CIVIL LIBERTIES UNION OF IDAHO FOUNDATION P.O. Box 1897 Boise, ID 83701
Counsel for Plaintiff-Appellant ANNA J. SMITH

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS PURSUANT TO FED. R. APP. P. 32(a)(7)(C)

Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify as follows:

1. Appellees’ Reply Brief complies with the type-volume limitation of

Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,697 words, excluding the

parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii); and

2. This brief 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

brief has been prepared in a proportionally spaced typeface using Microsoft

Word 2011, the word processing system used to prepare the brief, in 14 point font

in Times New Roman font.

DATED: October 16, 2014

Respectfully submitted,

By: /s/ Peter Smith Peter J. Smith IV LUKINS & ANNIS, P.S.

Counsel for Plaintiff-Appellant ANNA J. SMITH

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system on October 16, 2014.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

DATED: October 16, 2014

Respectfully submitted,

By: /s/ Peter Smith Peter J. Smith IV LUKINS & ANNIS, P.S.

Counsel for Plaintiff-Appellant ANNA J. SMITH

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No. 14-35555
IN THE
United States Court of Appeals
FOR THE NINTH CIRCUIT
ANNA JO SMITH, Plaintiff and Appellant,
v.
BARACK OBAMA, in his official capacity as PRESIDENT OF THE UNITED STATES OF AMERICA, 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, JAMES B. COMEY, in his official capacity as DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION
Defendants and Appellees.
Appeal from the United States District Court District of Idaho
The Honorable B. Lynn Winmill, Chief District Judge, Presiding Case No. 2:13-cv-00257-BLW
BRIEF FOR AMICI CURIAE SENATOR RON WYDEN, SENATOR MARK UDALL, AND SENATOR MARTIN HEINRICH IN SUPPORT OF
PLAINTIFF-APPELLANT, URGING REVERSAL OF THE DISTRICT COURT
All parties have consented. FRAP 29(a)
CHARLES S. SIMS PROSKAUER ROSE LLP Eleven Times Square New York, NY 10036 Telephone: 212-969-3000 Facsimile: 212-969-2900
Counsel for Amici Curiae Senator Ron Wyden, Senator Mark Udall and Senator Martin Heinrich

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TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE..............................................................................1

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

ARGUMENT .............................................................................................................5

I. AMICI HAVE SEEN NO EVIDENCE THAT THE BULK COLLECTION OF AMERICANS’ PHONE RECORDS HAS PROVIDED USEFUL INTELLIGENCE UNOBTAINABLE THROUGH LESS INTRUSIVE MEANS. .....................................................5

A.

Amici have seen no evidence that the bulk collection of

Americans’ phone records under section 215 is uniquely

necessary to the national security of the United States. .....................5

B.

The government possesses a number of legal authorities with

which it may obtain the call records of suspected terrorists and

those in contact with suspected terrorists.........................................11

C.

Amici have seen no evidence that bulk collection was necessary

to obtain information critical to specific counterterrorism

investigations. ...................................................................................16

II. THE GOVERNMENT’S LEGAL INTERPRETATION OF SECTION 215 IS OVERBROAD...................................................................................20

CONCLUSION ........................................................................................................25

CERTIFICATE OF COMPLIANCE.........................................................................1

CERTIFICATE OF SERVICE ..................................................................................2

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TABLE OF AUTHORITIES
Cases
ACLU v. Clapper, No. 14-42 (2d Cir. 2014) .............................................................1
First Unitarian Church of Los Angeles v. National Security Agency, No. 3:13-3287 (N.D. Cal. 2013) .............................................................................1
In re Application of the FBI for an Order Requiring the Production of Tangible Things from [Redacted], No. BR 13-80 (FISC Apr. 25, 2013) ............................................................................................14
In re Application of the FBI for an Order Requiring the Production of Tangible Things, BR 14-01 (FISC Feb. 5, 2014)....................................................9
In re Production of Tangible Things, No. BR 08-13 (FISC Mar. 2, 2009) ................................................................................................7
In re Production of Tangible Things, No. BR 08-13, 2008 WL 9475145 (FISC Dec. 12, 2008) .............................................................................13
In re Production of Tangible Things, No. BR 13-109, 2013 WL 5741573 (FISC Aug. 29, 2013).........................................................................7, 22
Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013) ................................................................... 10, 24
Smith v. Maryland, 442 U.S. 735 (1979) ....................................................................................... 23, 24
Smith v. Obama, No. 2:13-CV-257, 2014 U.S. Dist. LEXIS 76344 (D. Idaho June 3, 2014).................................................................................. 23, 24
United States v. Jones, 132 S. Ct. 945 (2012) ..................................................................................... 24, 25
Statutes
18 U.S.C. § 2702 ......................................................................................................13
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18 U.S.C. § 2703 ............................................................................................... 12, 13 18 U.S.C. § 2709 ............................................................................................... 13, 14 18 U.S.C. § 3122 ......................................................................................................13 18 U.S.C. § 3125 ......................................................................................................13 50 U.S.C. § 1842 ......................................................................................................13 50 U.S.C. § 1843 ......................................................................................................14 50 U.S.C. § 1861 ............................................................................................. 1, 2, 13 Fed. R. Crim. P. 17(c) ..............................................................................................13 Other Authorities
155 Cong. Rec. S9563 (daily ed. Sept. 17, 2009)......................................................3 157 Cong. Rec. S3258 (daily ed. May 24, 2011).......................................................3 157 Cong. Rec. S3360 (daily ed. May 25, 2011).......................................................2 157 Cong. Rec. S3386 (daily ed. May 26, 2011).................................................3, 22 157 Cong. Rec. S3389 (daily ed. May 26, 2011).....................................................22 159 Cong. Rec. S6056 (daily ed. July 30, 2013) .....................................................17 Administration White Paper: Bulk Collection of Telephony Metadata
Under Section 215 of the USA PATRIOT Act (Aug. 9, 2013) (“215 White Paper”) .........................................................................................8, 14 Brief for the United States in Opp’n, In re Elec. Privacy Info. Ctr., No. 13-58, 2013 WL 5702390 (U.S. Oct. 11, 2013) ..............................................9 Decl. of FBI Ass’t Dir. John Giacalone (Jan. 24, 2014) (“Giacalone Decl.”) ................................................................................................................8, 9 H. Permanent Select Comm. on Intelligence, 54 Attacks in 20 Countries Thwarted by NSA Collection (July 23, 2013) (“54 Attacks”)................................................................................................. 17, 18
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Intelligence Oversight and Surveillance Reform Act, S. 1551, 113th Cong. (2013) .........................................................................................................23
Joint Statement for the Record by Michael Leiter, Director, National Counterterrorism Center, & [Redacted], Associate Deputy Director for Counterterrorism, Signals Intelligence Directorate, NSA, Before the H. Permanent Select Comm. on Intelligence Closed Hearing on Patriot Act Reauthorization (Oct. 21, 2009) ...........................................................7
Letter from [Redacted], Attorney, Office of General Counsel, NSA, to SSCI (Apr. 1, 2011) ..............................................................................................22
Letter from Ronald Weich, Assistant Attorney General, to Dianne Feinstein, Chairman, & Saxby Chambliss, Vice Chairman, SSCI (Feb. 2, 2011) ...................................................................................................... 6-7
Letter from Ronald Weich, Assistant Attorney General, to Silvestre Reyes, Chairman, H. Permanent Select Comm. on Intelligence (Dec. 14, 2009) (“2009 Weich Letter”) ......................................................................6, 19
Letter from Sen. Ron Wyden & Sen. Mark Udall to Eric Holder, Attorney General (Mar. 15, 2012) ........................................................................21
Letter from Sens. Mark Udall, Ron Wyden & Martin Heinrich, to President Barack Obama (Jan. 9, 2014)................................................................11
Letter from Sens. Mark Udall, Ron Wyden & Martin Heinrich, to President Barack Obama (June 20, 2014) (“June 2014 Obama Letter”) ........................................................................................................... 10, 11
Liberty and Security in a Changing World (Dec. 12, 2013)....................................10
Media Leaks Facts & Context (Long version) (Aug. 1, 2013) (“Facts & Context”) ..............................................................................................20
Nat’l Comm’n on Terrorist Attacks Upon the U.S., 9/11 Commission Report (2004) ...........................................................................19
Oversight of the Administration’s Use of FISA Authorities: Hearing Before the H. Comm. on the Judiciary, 113th Cong. (July 17, 2013) (“July 17 HJC Hearing”)...................................................................................8, 17
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Oversight of the Federal Bureau of Investigation: Hearing Before the H. Comm. on the Judiciary, 113th Cong. (June 13, 2013) ...................................19
Potential Changes to the Foreign Intelligence Surveillance Act: Hearing Before the H. Permanent Select Comm. on Intelligence, 113th Cong. (Oct. 29, 2013) (“Oct. 29 HPSCI Hearing”) ................................8, 15
Press Release, Sen. Martin Heinrich, Heinrich Statement on National Security Agency Phone Records Program (June 6, 2013)....................................16
Press Release, Sens. Ron Wyden & Mark Udall, Wyden, Udall Issue Statement on Effectiveness of Declassified NSA Programs (June 19, 2013) (“Wyden-Udall Effectiveness Release”) ............................................. 15, 16
Press Release, Sens. Ron Wyden & Mark Udall, Wyden, Udall Statement on the Disclosure of Bulk Email Records Collection Program (July 2, 2013) (“Wyden-Udall Bulk Email Release”)..................... 21, 22
Press Release, Sen. Mark Udall, Surveillance Reform Package Ends Bulk Collection of Phone Records, Creates Constitutional Advocate for Secret Court (Sept. 25, 2013) (“Udall Reform Release”) ...............................12
Press Release, Sens. Martin Heinrich & Tom Udall, Udall, Heinrich Back Effort to End Dragnet Collection of Phone Data & Add Meaningful Oversight of Surveillance Programs (Oct. 29, 2013)................. 12, 16
Press Release, Sen. Martin Heinrich, Heinrich Says FISA Improvements Act Doesn’t Go Far Enough To Protect American Privacy Rights (Oct. 31, 2013)..............................................................................21
Press Release, FACT SHEET: The Administration’s Proposal for Ending the Section 215 Bulk Telephony Metadata Program (Mar. 27, 2014) (“White House Press Release”) ............................. 3, 9, 10, 11, 15
Report on the National Security Agency’s Bulk Collection Programs Affected by USA PATRIOT Act Reauthorization (“2009 NSA Report”) .............................................................................................................6, 13
Report on the National Security Agency’s Bulk Collection Programs for USA PATRIOT Act Reauthorization .................................................................6
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Privacy & Civil Liberties Oversight Board, Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court (Jan. 23, 2014) .......................................................................10
Sen. Richard Durbin, Remarks at the Senate Judiciary Committee Executive Business Meeting (Oct. 1, 2009)............................................................3
Sen. Ron Wyden, Remarks as Prepared for the Delivery for the Center for American Progress Event on NSA Surveillance (July 23, 2013) (“Wyden CAP Speech”)........................................................................................21
Siobhan Gorman, Evan Perez & Janet Hook, U.S. Collects Vast Data Trove, Wall St. J., June 7, 2013 ..............................................................................8
Strengthening Privacy Rights and National Security: Oversight of FISA Surveillance Programs: Hearing Before the S. Comm. on the Judiciary, 113th Cong. (July 31, 2013) (“July 31 SJC Hearing”) ................................................17, 18
Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and On-line Monitoring Act, S. 1599 / H.R. 3361, 113th Cong. (2013) ........................................................................................23

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INTEREST OF AMICI CURIAE1 Amici curiae Ron Wyden, Mark Udall, and Martin Heinrich are United
States Senators and members of the Senate Select Committee on Intelligence.
Senator Wyden has represented the state of Oregon since 1996. Senator Udall has
represented the state of Colorado since January 2009. Senator Heinrich has
represented the state of New Mexico since January 2013. Together with a number
of other Senators, Senators Wyden, Udall, and Heinrich have introduced bipartisan
legislation to reform the nation’s surveillance laws, including the Foreign
Intelligence Surveillance Act. Amici submit this brief to provide important context
for the Court’s consideration of plaintiffs’ claims and to underscore the larger
implications of this case.
INTRODUCTION Nothing in the text of section 215 of the Patriot Act, codified at 50 U.S.C.
1861, would apprise any fair reader that it authorizes the government’s bulk call-
records program. The provision authorizes applications for orders “requiring the
1 All the parties have consented to the filing of this brief. Undersigned counsel prepared this brief under the supervision of amici. Neither a party nor a party’s counsel contributed money to fund the preparation or submission of this brief, and no money was contributed for the preparation or submission for the brief by any third party. Amici submitted a brief raising similar arguments in First Unitarian Church of Los Angeles v. National Security Agency, No. 3:13-3287 (N.D. Cal. 2013), where they were represented by plaintiffs’ counsel in this case. Amici also submitted another similar brief, through undersigned counsel, in ACLU v. Clapper, No. 14-42 (2d Cir. 2014).
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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, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution,” and gives as examples of the kinds of orders provided for “library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person . . . .” Id. Each of those examples suggests narrow, individualized orders – not a program of bulk collection of information concerning vast numbers of law-abiding Americans.
As members of the Senate Select Committee on Intelligence, amici Senators Wyden and Udall have for years participated in the oversight of government surveillance conducted under the Patriot Act that they knew would astonish most Americans. They sought to warn the public about those activities as best they could without disclosing classified information. They also co-sponsored an amendment to the Patriot Act’s reauthorization that sought to address the problem of government officials “secretly reinterpret[ing] public laws and statutes” and “describ[ing] the execution of these laws in a way that misinforms or misleads the public.” See 157 Cong. Rec. S3360 (daily ed. May 25, 2011) (introducing SA 384
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to S. 990, 112th Cong. § 3 (2011)); see also 157 Cong. Rec. S3386 (daily ed. May
26, 2011) (statement of Sen. Wyden) (“The fact is anyone can read the plain text of
the PATRIOT Act. Yet many Members of Congress have no idea how the law is
being secretly interpreted by the executive branch.”); 157 Cong. Rec. S3258 (daily
ed. May 24, 2011) (statement of Sen. Udall) (“Congress is granting powers to the
executive branch that lead to abuse, and, frankly, shield the executive branch from accountability”).2
Now that the government’s bulk call-records program has been documented
and exposed, the executive branch has retreated from frequently repeated claims
about its necessity and expressed an intent to end government bulk collection
under section 215. Press Release, FACT SHEET: The Administration’s Proposal
for Ending the Section 215 Bulk Telephony Metadata Program (Mar. 27, 2014),
http://www.whitehouse.gov/the-press-office/2014/03/27/fact-sheet-administration-
s-proposal-ending-section-215-bulk-telephony-m (“White House Press Release”).
While Senators Udall, Heinrich and Wyden broadly support a policy aimed at
ending the government’s indiscriminate collection of telephony metadata, they 2 Colleagues of amici raised similar concerns. See, e.g., Sen. Richard Durbin, Remarks at the Senate Judiciary Committee Executive Business Meeting at 68:00 (Oct. 1, 2009), http://1.usa.gov/1fPvpwb (“Section 215 is unfortunately cloaked in secrecy. Some day that cloak will be lifted, and future generations will ask whether our actions today meet the test of a democratic society: transparency, accountability, and fidelity to the rule of law and our Constitution.”); 155 Cong. Rec. S9563 (daily ed. Sept. 17, 2009) (statement of Sen. Feingold).
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share a concern that there is no plan to suspend the bulk collection of Americans’ phone records in the absence of new legislation, which is not necessarily imminent.
Meanwhile, the government continues to defend its bulk call-record collection program vigorously against statutory and constitutional challenges in the courts. Amici submit this brief to respond to the government’s argument that its collection of bulk call records is necessary to defend the nation against terrorist attacks. Amici make one central point: as members of the committee charged with overseeing the National Security Agency’s surveillance, amici have reviewed this surveillance extensively and have seen no evidence that the bulk collection of Americans’ phone records has provided any intelligence of value that could not have been gathered through means that caused far less harm to the privacy interests of millions of Americans. The government has at its disposal a number of authorities that allow it to obtain the call records of suspected terrorists and those in contact with suspected terrorists. It appears to amici that these more targeted authorities could have been used to obtain the information that the government has publicly claimed was crucial in a few important counterterrorism cases.
In assessing the lawfulness of the government’s bulk call-records program, it is also important to understand the implications of the government’s interpretation of section 215. That interpretation could authorize bulk collections of information far beyond the call records at issue in this case, such as financial or medical
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records, or even records indicating the location of ordinary Americans. The Court
should reject the government’s contention that its use of the statute is cabined by
the supposedly unique characteristics of call records.
Because the government’s call-records program needlessly intrudes upon the
privacy rights of hundreds of millions of Americans, providing the executive
branch with information that U.S. citizens have no intention of providing to the
government, amici believe the bulk collection of these phone records should be
ended.
ARGUMENT I. AMICI HAVE SEEN NO EVIDENCE THAT THE BULK COLLECTION
OF AMERICANS’ PHONE RECORDS HAS PROVIDED USEFUL INTELLIGENCE UNOBTAINABLE THROUGH LESS INTRUSIVE MEANS. A. Amici have seen no evidence that the bulk collection of Americans’
phone records under section 215 is uniquely necessary to the national security of the United States. The executive branch has claimed in public and in newly declassified
submissions to the Senate Select Committee on Intelligence (“SSCI”) that the bulk
collection of Americans’ phone call records (telephony metadata) is a vital national
security program that is uniquely valuable in protecting the American people, that
its aims cannot be achieved through alternative means, and that it has been
effective in preventing terrorist activity against Americans. Amici have reviewed

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the bulk-collection program extensively, and none of these claims withstands scrutiny.
Since the executive branch began using section 215 to collect the phone records of Americans in bulk, it has asserted to the members of Congress to whom it revealed that collection that the program was necessary to protect national security because it uniquely enables the government to track the associations of suspected terrorists. For example, as votes in both chambers of Congress on the reauthorization of the Patriot Act approached in 2009, the Department of Justice made available to members of the SSCI and the House Permanent Select Committee on Intelligence (“HPSCI”) a report on the NSA’s bulk collection under section 215. See Letter from Ronald Weich, Assistant Attorney General, to Silvestre Reyes, Chairman, HPSCI at 1 (Dec. 14, 2009), (“2009 Weich Letter”). The report represented that the “NSA’s bulk collection programs provide important tools in the fight against terrorism” that are “unique in that they can produce intelligence not otherwise available to NSA.” See Report on the National Security Agency’s Bulk Collection Programs Affected by USA PATRIOT Act Reauthorization at 1, http://1.usa.gov/1i31wui (“2009 NSA Report”).3
3 The executive branch has made similar representations to Congress in other settings. See, e.g., Report on the National Security Agency’s Bulk Collection Programs for USA PATRIOT Act Reauthorization (attached to Letter from Ronald Weich, Assistant Attorney General, to Dianne Feinstein, Chairman, & Saxby
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The executive branch has made the same assurances to the Foreign Intelligence Surveillance Court (“FISC”) in its applications for orders renewing the bulk phone-records program. In December 2008, the executive branch asserted to the FISC that “having access to the call detail records ‘is vital to NSA’s counterterrorism intelligence mission’ because ‘[t]he only effective means by which NSA analysts are able continuously to keep track of [redacted] and all affiliates of one of the aforementioned entities [who are taking steps to disguise and obscure their communications and identities], is to obtain and maintain an archive of metadata that will permit these tactics to be uncovered.’” Order at 2, In re Production of Tangible Things, No. BR 08-13 (FISC Mar. 2, 2009) (alterations in original) (quoting NSA declaration submitted to FISC on December 11, 2008), http://1.usa.gov/14DDhzd; see also In re Production of Tangible Things, No. BR 13-109, 2013 WL 5741573, at *7 (FISC Aug. 29, 2013) (discussing government assertions of necessity).

Chambliss, Vice Chairman, SSCI (Feb. 2, 2011), http://1.usa.gov/1i38XSh); Joint Statement for the Record by Michael Leiter, Director, National Counterterrorism Center, & [Redacted], Associate Deputy Director for Counterterrorism, Signals Intelligence Directorate, NSA, Before the HPSCI Closed Hearing on Patriot Act Reauthorization at 2 (Oct. 21, 2009), http://1.usa.gov/1i3bP1u. Many of these documents also made representations about the value and importance of the NSA’s bulk email-records collection program that later proved to be inaccurate. See infra notes 8–9.
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In the months following the government’s official declassification of the bulk phone-records program, government officials told the American public much the same thing. Immediately after the bulk phone-records collection program was disclosed, a White House spokesman defended it as a “critical tool in protecting the nation from terror threats.” Siobhan Gorman, Evan Perez & Janet Hook, U.S. Collects Vast Data Trove, Wall St. J., June 7, 2013, http://on.wsj.com/16RgOAf; see Administration White Paper: Bulk Collection of Telephony Metadata Under Section 215 of the USA PATRIOT Act at 12 (Aug. 9, 2013), https://www.aclu.org/files/natsec/nsa/20130816/Section%20215%20%20Obama%20Administration%20White%20Paper.pdf (“215 White Paper”) (“[F]or Section 215 to be effective in advancing its core objective, the FBI must have the authority” to engage in bulk collection). And executive-branch officials have repeatedly made similar public claims.4

4 See, e.g., Potential Changes to the Foreign Intelligence Surveillance Act: Hearing Before the H. Permanent Select Comm. on Intelligence, 113th Cong. at 55:40 (Oct. 29, 2013), http://www.c-spanvideo.org/program/AgencyPro (“Oct. 29 HPSCI Hearing”) (statement of John C. Inglis, Deputy Director, NSA) (“It needs to be the whole haystack.”); Decl. of FBI Ass’t Dir. John Giacalone (Jan 24, 2014) (“Giacalone Decl.”) ¶ 23, Appellant’s Excerpts of Record (Hereinafter “ER”) 74 (“Bulk metadata analysis sometimes provides information earlier than the FBI’s other investigative methods and techniques.”); Oversight of the Administration’s Use of FISA Authorities: Hearing Before the H. Comm. on the Judiciary, 113th Cong. at 59:00 (July 17, 2013), http://c-spanvideo.org/program/ISAO (“July 17 HJC Hearing”) (statement of James M. Cole, Deputy Attorney General) (similar).
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More recently and under intense public scrutiny, the government has gradually retreated from its most aggressive claims about the need for the bulk collection of call-records and moved to rein in the program, with a view to ending it entirely.5 At the government’s request, on February 5, 2014, the FISC imposed new limitations on the government’s ability to use telephony metadata collected in bulk by requiring, absent an emergency, judicial approval of the terms used to search through bulk metadata and by limiting searches to two, rather than three, “hops” from the search term used. In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, BR 14-01 (FISC Feb. 5, 2014). The FISC noted that the government recognized that the bulk collection program implicated legitimate privacy concerns and sought to “reassur[e] the public that adequate protection is afforded to information concerning United States persons that is being acquired pursuant to a FISC order.” Id.

5 See also, e.g., Brief for the United States in Opp’n, In re Elec. Privacy Info. Ctr., No. 13-58, 2013 WL 5702390, at *31 (U.S. Oct. 11, 2013) (without bulk collection of phone records under section 215, “it may not be feasible for the NSA to identify chains of communications that cross different telecommunications networks . . . .” (emphasis added)); Giacalone Decl. ¶ 9, ER68 (“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” (emphases added)); White House Press Release.
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Later, on March 27, 2014, President Obama proposed ending section 215
bulk collection of telephone metadata altogether. White House Press Release 1. In
light of the fact that the executive branch now seeks to scrap section 215 bulk
telephone record collection entirely, the notion that this program is uniquely
important for protecting U.S. national security is simply no longer plausible.6
While amici are committed to working towards enacting legislation that
would statutorily prohibit bulk collection of telephone records by the government,
they are also concerned “that in the absence of new legislation, there is no plan to
suspend the bulk collection of Americans’ phone records.” Letter from Sens. Mark
6 Other observers who have seen all the pertinent evidence have expressed a similar skepticism over the necessity of the program. The district court for the District of Columbia – which recently issued a preliminary injunction against the program insofar as the two plaintiffs before it were concerned – found that “the Government does not cite a single instance in which analysis of 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.” Klayman v. Obama, 957 F. Supp. 2d 1, 40 (D.D.C. 2013); see also Privacy & Civil Liberties Oversight Board, Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court at 11 (Jan. 23, 2014), http://www.pclob.gov/SiteAssets/Pages/default/PCLOB-Report-on-the-TelephoneRecords-Program.pdf (“[T]he Section 215 program has shown minimal value in safeguarding the nation from terrorism.”); Liberty and Security in a Changing World: Report and Recommendations of The President’s Review Group on Intelligence and Communications Technologies at 104 (Dec. 12, 2013), http://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf (“Our review suggests that the information contributed to terrorist investigations by the use of section 215 telephony meta-data was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders.”).
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Udall, Ron Wyden & Martin Heinrich, to President Barack Obama at 1 (June 20, 2014) (“June 2014 Obama Letter”), http://www.scribd.com/doc/230500659/UdallWyden-Heinrich-Urge-President-to-End-Bulk-Collection-While-Congress-Worksto-Pass-Real-Surveillance-Reform. It is clear that the bulk collection of telephone metadata is not necessary to safeguard U.S. security and legitimate privacy interests continue to be violated as long as the government continues to indiscriminately stockpile call records. Accordingly, amici have urged the President to use his executive powers to end the dragnet collection of millions of Americans’ phone records immediately and without waiting for Congressional action. June 2014 Obama Letter 1; Letter from Sens. Mark, Udall, Ron Wyden & Martin Heinrich, to President Barack Obama (Jan. 9, 2014), http://www.heinrich.senate.gov/download/letter-to-white-house-to-make-commonsense-constitutional-reforms-to-nsa-surveillance-protect-privacy. However, the Executive Branch has thus far declined to dismantle bulk collection entirely until Congress passes new legislation, and the existing program survives, with no clear end in sight. White House Press Release 2.
B. The government possesses a number of legal authorities with which it may obtain the call records of suspected terrorists and those in contact with suspected terrorists.
Amici have consistently argued that the bulk phone-records program needlessly tramples on Americans’ privacy rights, particularly in light of the
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authorities available to the government that can also be used to acquire call records of suspected terrorists and those in contact with suspected terrorists in a targeted manner. See Press Release, Sen. Martin Heinrich, Udall, Heinrich Back Effort To End Dragnet Collection of Phone Data & Add Meaningful Oversight of Surveillance Programs (Oct. 29, 2013), http://1.usa.gov/182XcHE; Press Release, Sen. Mark Udall, Surveillance Reform Package Ends Bulk Collection of Phone Records, Creates Constitutional Advocate for Secret Court (Sept. 25, 2013), http://1.usa.gov/1bBGLku (“Udall Reform Release”). Even the valid claims by intelligence officials about certain useful information obtained through the bulk phone-records program fail to explain why the government could not have simply obtained this information directly from phone companies using more calibrated legal instruments. A number of legal authorities would have allowed the government to do so.
For example, the Stored Communications Act permits the government to obtain precisely the same call records that are now acquired through bulk collection under section 215 when they are “relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703 (d). Individualized orders for phone records, as opposed to orders authorizing bulk collection, can also be obtained

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under section 215. 50 U.S.C. § 1861. 7 National security letters, which do not
require a court order, can also be used by the government to obtain call records for
intelligence purposes. See 18 U.S.C. § 2709. The government can also acquire
telephony metadata on a real-time basis by obtaining orders from either regular
federal courts or the FISC for the installation of pen registers or trap-and-trace
devices. See 18 U.S.C. §§ 3122, 3125; 50 U.S.C. § 1842. And the government may
also seek call records using standard criminal warrants based on probable cause.
See 18 U.S.C. § 2703 (c)(A); Fed. R. Crim. P. 17(c). The government can use
many of these authorities without any more evidence than what is currently
required to use the bulk phone-records database, with less impact on the privacy
interests of innocent Americans.
The executive branch has sometimes argued that the bulk collection of
phone records is unique because it allows the NSA to “quickly identify the network
of contacts that a targeted number or address is connected to.” 2009 NSA Report 5;
see id. (“Importantly, there are no intelligence collection tools that, independently
or in combination, provide an equivalent capability.”). As an initial matter, in 7 Amici understand that there is an ongoing legal debate regarding whether 18 U.S.C. § 2702 (a)(3), which prohibits the disclosure of call records to the government subject to several limited exceptions, permits the use of section 215 to obtain call records at all. Amici take no position on that legal question for the purposes of this brief, but note that the FISC currently permits such use. See In re Production of Tangible Things, No. BR 08-13, 2008 WL 9475145, at *3 (FISC Dec. 12, 2008).
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exigent circumstances, the government already enjoys the authority to issue emergency authorizations or national security letters to obtain these records quickly. See 50 U.S.C. § 1843; 18 U.S.C. § 2709. More fundamentally, the FISC orders governing the bulk phone-records program permit the NSA’s querying of the bulk phone-records database only when “there are facts giving rise to a reasonable, articulable suspicion (RAS) that the selection term to be queried is associated with” a “foreign terrorist organization,” Primary Order at 7, In re Application of the FBI for an Order Requiring the Production of Tangible Things from [Redacted], No. BR 13-80 (FISC Apr. 25, 2013). Intelligence officials have indicated that the NSA queried the phone-records database with fewer than 300 such “selection terms” in 2012. 215 White Paper 4, https://www.aclu.org/files/natsec/nsa/20130816/Section%20215%20%20Obama%20Administration%20White%20Paper.pdf. The RAS standard and the relatively few “selection terms” used by the NSA demonstrate that the government could obtain targeted court orders or issue national security letters on a case-by-case basis in lieu of querying bulk-collected data.
For cases in which intelligence agencies wish to conduct “two-hop analysis” of the network of a particular suspect, amici believe that the relevant phone records could be obtained from the phone companies using the legal authorities discussed above. An individual order for the phone records of a suspected terrorist and
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anyone in contact with that suspect could be served on multiple phone companies simultaneously and be expected to produce the same results as a query of a bulk phone-records database.
In addition, even though the NSA’s current five-year retention period for phone records exceeds the retention period mandated by federal regulation, the NSA has been unable to identify instances in which the government gained valuable information from phone records that the companies themselves did not continue to possess. See Press Release, Sens. Ron Wyden & Mark Udall, Wyden, Udall Issue Statement on Effectiveness of Declassified NSA Programs (June 19, 2013), http://1.usa.gov/1brNWxz, (“Wyden-Udall Effectiveness Release”). Moreover, the government recognized the validity of this conclusion by declining to incorporate a data-retention mandate in its proposal to end the bulk phone records collection program, instead indicating that under its plan phone companies would simply retain records “for the length of time they currently do today,” which is often significantly less than five years. White House Press Release 1.
The government has also recognized that “numerous technical architectures” other than bulk collection by the government are “viable” means to accomplish the same ends as the bulk phone-records program. Oct. 29 HPSCI Hearing at 55:05, http://www.c-spanvideo.org/program/AgencyPro (statement of John C. Inglis). All of these acknowledgments support amici’s consistent warnings that the bulk
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phone-records program goes far beyond what is required to protect national security.8
Respect for Americans’ privacy is not a matter of convenience, but a Constitutional imperative. Despite years of receiving classified briefings and asking repeated questions of intelligence officials in both private and public settings, amici have seen no evidence that bulk collection accomplishes anything that other less intrusive surveillance authorities could not. Bulk collection is not only a significant threat to the constitutional liberties of Americans, but a needless one.9
C. Amici have seen no evidence that bulk collection was necessary to obtain information critical to specific counterterrorism investigations.
Even in the two cases that intelligence officials have been able to identify in which the bulk phone-records program provided any useful information about an individual involved in terrorist activity, it has not been demonstrated that bulk collection was necessary to the outcomes. In both of these cases, amici believe the

8 See Press Release, Sen. Martin Heinrich, Heinrich Statement on National Security Agency Phone Records Program (June 6, 2013), http://www.heinrich.senate.gov/newsroom/statements-and-speeches/heinrichstatement-on-national-security-agency-phone-records-program. 9 See Press Release, Sen. Martin Heinrich & Sen. Tom Udall, Udall, Heinrich Back Effort to End Dragnet Collection of Phone Data & Add Meaningful Oversight of Surveillance Programs (Oct. 29, 2013), http://1.usa.gov/182XcHE; Wyden-Udall Effectiveness Release, http://1.usa.gov/1brNWxz.
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government could have used its more targeted authorities to obtain the phone records it claims were valuable.10
For example, the executive branch has publicly claimed that the bulk phonerecords program was critical to the government’s disruption of a plot to bomb the New York City subway system. See, e.g., July 17 HJC Hearing at 36:50, http://cspanvideo.org/program/ISAO (statement of Stephanie Douglas, Executive Assistant Director, National Security Division, FBI); see also, e.g., HPSCI, 54 Attacks in 20 Countries Thwarted by NSA Collection at 1 (July 23, 2013), http://1.usa.gov/182Zk1W (“54 Attacks”). In particular, intelligence officials have claimed that a query of the bulk phone-records database for numbers linked to known terrorism suspect Najibullah Zazi returned a previously unknown number belonging to another known terrorism suspect, Adis Medunjanin. See July 17 HJC Hearing at 36:50, http://c-spanvideo.org/program/ISAO (statement of Stephanie Douglas). However, since the government had already identified Mr. Zazi as a terrorism suspect prior to querying the bulk phone-records database, it had all the evidence that it needed to obtain the phone records of Mr. Zazi and his associates
10 See 159 Cong. Rec. S6056 (daily ed. July 30, 2013) (statement of Sen. Wyden) (“What I don’t see . . . is any evidence that the U.S. Government needed to operate a giant domestic phone records surveillance program in order to catch these individuals.”); accord July 31 SJC Hearing (statement of Sen. Patrick Leahy), http://www.judiciary.senate.gov/imo/media/doc/7-31-13LeahyStatement.pdf.
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using an individualized section 215 order or other legal authorities. See supra Part I.B. The executive branch has provided neither amici nor the public with any evidence that bulk collection produced any information of unique value in preventing the subway plot.
The executive branch has also pointed to the case of Basaaly Moalin, a San Diego man convicted of sending $8,500 to support al-Shabaab in Somalia. The intelligence community has indicated that information from the bulk phone-records database “established a connection between a phone number known to be used by an extremist overseas . . . and an unknown San Diego–based number” that belonged to Mr. Moalin. 54 Attacks 2, http://1.usa.gov/182Zk1W. Yet there is no shortage of authorities under which the United States can conduct surveillance on a “phone number known to be used by an extremist overseas” and other phone numbers in contact with that phone number. See supra Part I.B. To claim that Mr. Moalin’s case is a “but-for” example of the value of the bulk phone-records collection program, July 31 SJC Hearing at 1:37:50, http://cspanvideo.org/ program/ ISAO (statement of John C. Inglis), is simply at odds with the available evidence. Worse, it appears to be a misleading exaggeration that has distorted the public record.
Finally, the executive branch and others have also repeated the claim that “[i]f we had had [the bulk phone-records] program in place at the time [of the
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September 11, 2001 attacks,] we would have been able to identify” the phone number of one of the hijackers, Khalid al-Mihdhar. Oversight of the Federal Bureau of Investigation: Hearing Before the H. Comm. on the Judiciary at 26, 113th Cong. (June 13, 2013), http://www.justice.gov/iso/opa/ola/witness/06-13-13fbi-mueller-testimony-re-oversight-of-the-fbi.201385141.pdf (statement of Robert S. Mueller, III, Director, FBI); see 2009 Weich Letter 2, http://1.usa.gov/1i38XSh. Just as in the cases of Mr. Medunjanin and Mr. Moalin, however, it appears that Mr. al-Mihdhar’s phone number could also have been obtained by the government using a variety of alternate means. Before September 11, the government was surveilling a safe house in Yemen but failed to realize that Mr. al-Mihdhar, who was in contact with the safe house, was actually inside the United States. See, e.g., Nat’l Comm’n on Terrorist Attacks Upon the U.S., 9/11 Commission Report 266, 270, 272 (2004), http://govinfo.library.unt.edu/911/report/911Report.pdf. The government could have used any number of authorities to determine whether anyone in the United States was in contact with the safe house that it was already targeting. It did not need a record of every American’s phone calls to establish that simple connection.
The three cases discussed above—the three cases most heavily cited by government officials to justify the existence of the bulk phone-records program— make clear that there appears to be nothing uniquely valuable about the program,
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and that existing alternative legal authorities are sufficient to accomplish the United States’ legitimate intelligence objectives without systematically infringing on the privacy rights of hundreds of millions of Americans.
Of note, intelligence officials have repeatedly asserted that additional examples, which remain secret, show that the bulk phone-records collection program has “contributed to” or “provided value in” the investigation of a total of twelve different “homeland-related terrorist events.” Media Leaks Facts & Context (Long Version) at 3 (Aug. 1, 2013), http://1.usa.gov/17wwh38 (“Facts & Context”). Amici have reviewed all twelve of these examples, and have yet to see any evidence that the bulk phone-records program provided any information that was materially useful to any terrorism cases other than those involving Mr. Moalin and Mr. Medjunanin. In the opinion of amici, the claim that the bulk phone-records collection program has “contributed to” twelve different counterterrorism investigations would not withstand public scrutiny, unless it were accompanied by new evidence that has not been provided to amici. II. THE GOVERNMENT’S LEGAL INTERPRETATION OF SECTION 215
IS OVERBROAD. Amici also are concerned that the district court’s rationale for dismissing plaintiffs’ Fourth Amendment challenge is not limited to telephony metadata and goes much too far, eliminating any Fourth Amendment claim for the bulk, routinized collection of any records (including hospital and doctor’s records, or all
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credit card and checking account data) that was collected, stored or seen by third

party providers or billers, even if the statute lacked any link to international

terrorism at all. Congress did not intend – and the Fourth Amendment would in

any event not permit – such an overbroad claim of authority.

Amici have previously warned that the government’s authority to collect

information on law-abiding Americans is essentially limitless:

the Patriot Act’s surveillance authorities are not limited to phone records. . . . [and] could be used to collect other types of records in bulk as well, including information on credit card purchases, medical records, library records, firearm sales records, financial information and a range of other sensitive subjects.
Press Release, Sens. Ron Wyden & Mark Udall, Wyden, Udall Statement on the

Disclosure of Bulk Email Records Collection Program (July 2, 2013),

http://1.usa.gov/1bs6wWa (“Wyden-Udall Bulk Email Release”); see Sen. Ron

Wyden, Remarks as Prepared for Delivery for the Center for American Progress

Event

on

NSA

Surveillance

(July

23,

2013)

http://www.wyden.senate.gov/news/blog/post/wyden-on-nsa-domestic-surveillance (“Wyden CAP Speech”).11

11 Accord Press Release, Sen. Martin Heinrich, Heinrich Says FISA Improvements Act Doesn’t Go Far Enough To Protect American Privacy Rights (Oct. 31, 2013), http://1.usa.gov/175by9z; Letter from Sen. Ron Wyden & Sen. Mark Udall to Eric Holder, Attorney General, at 2 (Mar. 15, 2012), http://www.scribd.com/doc/85512347/Senators-Ron-Wyden-Mark-Udall-Letter-toAttorney-General-Holder.
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Amici have not issued these warnings lightly. As disclosed in July 2013, two of amici were involved in bringing an NSA bulk-collection program focused on internet metadata to an end. See Wyden–Udall Bulk Email Release, http://1.usa.gov/1bs6wWa (“[W]e spent a significant portion of 2011 pressing intelligence officials to provide evidence of [the program’s] effectiveness. They were unable to do so, and the program was shut down that year.”). Recent disclosures have produced even more reasons to heed amici’s words of caution. For example, one document released through a Freedom of Information Act lawsuit publicly revealed that the executive branch has interpreted its authority under section 215 to allow the collection of information about Americans’ locations. See Letter from [Redacted], Attorney, Office of General Counsel, NSA, to SSCI at 1 (Apr. 1, 2011), http://1.usa.gov/1gWqiy0. And FISC opinions continue to refer to still-undisclosed “secret law” interpreting crucial statutory terms in FISA related to bulk collection as well as addressing the compatibility of bulk collection with the Fourth Amendment. See In re Production of Tangible Things, 2013 WL 5741573, at *6 (FISC “has previously examined the issue of relevance for bulk collections. See [Redacted].”).
Amici have long warned that Americans would be “stunned,” “angry,” and “alarmed” if they were to see the government’s secret interpretation of section 215. 157 Cong. Rec. S3386, 3389 (daily ed. May 26, 2011) (statements of Sen. Wyden
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& Sen. Udall). The disclosures to date about the NSA’s activities have been significant, and they will surely be transformative.12 But the government’s claimed authorities are vast, and the Court should treat with skepticism the argument that the unique characteristics of call records cabin the government’s use of the statute.
Moreover, seizing on section 215 to justify the collection of metadata on a huge volume of phone calls made daily in the United States necessarily leads to results that Congress and the Supreme Court cannot possibly be thought to have sanctioned.
As a close reading demonstrates, the district court’s rationale for dismissing plaintiffs’ Fourth Amendment claim rests on a broad reading of Smith v. Maryland, 442 U.S. 735 (1979) and its Ninth Circuit progeny. Smith v. Obama, No. 2:13-CV257, 2014 U.S. Dist. LEXIS 76344 (D. Idaho June 3, 2014); ER1-8.
Even as the district court relied on Smith, it correctly recognized the existence of “a looming gulf between Smith and this case.” Smith, 2014 U.S. Dist. LEXIS 76344, at *7; ER5. The Smith case involved the investigation of a single crime, and the collection of the phone records of a suspected robber over a two-day time period. The district court quoted the Klayman v. Obama opinion to
12 See Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and On-line Monitoring Act, S. 1599 / H.R. 3361, 113th Cong. (2013); Intelligence Oversight and Surveillance Reform Act, S. 1551, 113th Cong. (2013).
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underscore the danger of expanding Smith so far as to encompass telephone records collected in bulk over a much longer period of time: “people in 2013 have an entirely different relationship with phones than they did thirty-four years ago . . . . 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.” Smith, 2014 U.S. Dist. LEXIS 76344, at *11; ER7 (quoting Klayman v. Obama, 957 F. Supp. 2d 1, 36 (D.D.C. 2013)).
It is hard to imagine that this Court would agree that a congressional statute requiring bulk submission to the government of hospital and medical records, or of credit card billing and checking accounts, passed (or was not even subject to) Fourth Amendment review without a tie to international terrorism, merely on the rationale that private records held by a third party are categorically beyond Fourth Amendment protection. It would appear, then, that the reasonableness (and hence the constitutionality) of such orders necessarily rests on the balance between harm to privacy interests and governmental need – one informed by the considerations and failures-of-evidence canvassed above in Point I – and not simply on the Smith v. Maryland third-party rationale alone. As Justice Sotomayor recently wrote concurring in United States v. Jones, 132 S. Ct. 945, 957 (2012), making secrecy (even from telephone providers, internet providers, and entities such as pharmacies or hospitals) a sine qua non of Fourth Amendment protection
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is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the email addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. . . . I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.
CONCLUSION
For all the foregoing reasons, the Court should reverse the judgment below

and remand for further proceedings.

Respectfully Submitted,

September 9, 2014

PROSKAUER ROSE LLP

/s/ Charles S. Sims Charles S. Sims Proskauer Rose LLP New York, New York 10036 Telephone: (212) 969-3950 Facsimile: (212) 969-2900 csims@proskauer.com

Attorneys for Amici Curiae Senator Ron Wyden, Senator Mark Udall, and Senator Martin Heinrich

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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure because it contains 5,836 words, excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Rule 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in Times New Roman 14point font.

September 9, 2014

PROSKAUER ROSE LLP
/s/ Charles S. Sims Charles S. Sims New York, New York 10036 Telephone: (212) 969-3950 Facsimile: (212) 969-2900 csims@proskauer.com
Attorneys for Amici Curiae Senator Ron Wyden, Senator Mark Udall, and Senator Martin Heinrich

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CERTIFICATE OF SERVICE I hereby certify that on September 9, 2014, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will accomplished by the appellate CM/ECF system.
/s/ Charles S. Sims Charles S. Sims

 
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No. 14-35555
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ANNA SMITH, v.
BARACK OBAMA, et al.,

Plaintiff-Appellant, Defendant-Appellees.

On Appeal from the United States District Court for the District of Idaho, Boise; Case No. 12:13-cv-00257-BLW
The Honorable B. Lynn Winmill, Chief District Judge

BRIEF OF AMICI CURIAE ELECTRONIC PRIVACY INFORMATION CENTER (EPIC) AND THIRTY-THREE TECHNICAL
EXPERTS AND LEGAL SCHOLARS IN SUPPORT OF APPELLANT

September 9, 2014

Marc Rotenberg Counsel of Record
Alan Butler Julia Horwitz Jeramie Scott Electronic Privacy Information Center 1718 Connecticut Ave. NW, Suite 200 Washington, DC 20009 (202) 483-1140

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CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1 and 29(c), Amicus Curiae Electronic Privacy Information Center (“EPIC”) is a District of Columbia corporation with no parent corporation. No publicly held company owns 10% or more of EPIC stock.

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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT
TABLE OF AUTHORITIES
INTEREST OF THE AMICI .................................................................................... 1
SUMMARY OF THE ARGUMENT ....................................................................... 5
ARGUMENT............................................................................................................ 5 I. The Modern Communications System is Entirely Unlike the Telephone Network of the 1970s.................................................................................... 6 A. In the Analog Era Little Phone Data was Generated................................. 7 B. New Consumer Privacy Safeguards Were Established As Caller Identified Data Was Generated .................................................................... 12 C. Today a Vast Amount of Data is Generated by Phone Companies ......... 14 II. Communications Metadata Reveals Sensitive Personal Information ......... 20 A. Metadata Reveals Our Social Interactions and Private Associations ...... 20 B. Even Individual Call Records Can Reveal Sensitive Private Facts About Cell Phone Users .......................................................................................... 23 C. The Government’s Analysis of the Phone Metadata Is Specifically Designed to Uncover The Private Associations of Users............................. 25 III. The Supreme Court’s Holding in Smith v. Maryland Is Not Applicable to Modern Metadata After Riley v. California................................................ 26
CONCLUSION....................................................................................................... 32
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

CASES Barasch v. Bell Telephone Co. of Pa., 605 A.2d 1198 (Pa. 1992) ......................... 14
In re Application of the FBI for an Order Requiring the Production of Tangible Things from [REDACTED], Br. No. 14-67 (FISC Mar. 28, 2014)...... 15
People of the State of Cal. v. FCC, 75 F.3d 1350 (9th Cir. 1996).......................... 14 Riley v. California, 134 S. Ct. 2473 (2014) ............................ 6, 7, 26, 27, 28, 29, 30 Smith v. Maryland, 442 U.S. 735 (1979) ............................................................ 6, 27 United States v. Jones, 132 S. Ct. 945 (2012) (Sotomayor, J., concurring) ........... 31 United States v. Warshak, 631 F.3d 266 (6th Cir. 2010)........................................ 29
OTHER AUTHORITIES Adam Sadilek & John Krumm, Far Out: Predicting Long-Term Human
Mobility, 26 Proc. AAAI Conf. Artificial Intelligence (2012)............................ 23
Administration White Paper: Bulk Collection of Telephony Metadata Under Section 215 of the USA PATRIOT Act (Aug. 9, 2013) ........................................ 25
Alina Tugend, Cellphone Service Without Signing on the Dotted Line, N.Y. Times, Feb. 9, 2013 ............................................................................................. 17
Annabel Z. Dodd, The Essential Guide to Telecommunications (3d ed. 2002) ..... 12 Anu A. Gokhale, Introduction to Telecommunications (2nd ed. 2005) ................. 12
Ashkan Soltani & Barton Gellman, New Documents Show How the NSA Infers Relationships Based on Mobile Location Data, Wash. Post (Dec. 10, 2013).................................................................................................... 23
C.F. Ault, J.H. Brewster, T.S. Greenwood, R.E. Haglund, W.A. Read, & M.W. Rolund, 1A Processor: Memory Systems, 56-2 Bell Sys. Tech. J. 181 (1977) .................................................................................................................. 10
Caller-ID Technology: Hearing on S. 2030 Before the Subcomm. on Tech. and the Law of the S. Comm. on the Judiciary, 101st Cong. (1990)................... 13
Corinna Cortes & Daryl Pregibon, Giga-mining, Proc. KDD, New York (1998) .................................................................................................................. 21
Dana Priest, Piercing the Confusion Around NSA’s Phone Surveillance Program, Wash. Post (Aug. 8, 2013) .................................................................. 16
David B. Hack, Cong. Research Serv., IB 90085, Caller I.D. and Automatic Telephone Number Identification (1991) ............................................................ 13

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Documents on N.S.A. Efforts to Diagram Social Networks of U.S. Citizens, N.Y. Times (Sept. 28, 2013) ............................................................................... 25
Ellen Nakashima, NSA Had Test Project to Collect Data on Americans’ Cellphone Locations, Director Says, Wash. Post (Oct. 2, 2013) ........................ 19
G.V. King, Centralized Automatic Message Accounting System, 33-6 Bell Sys. Tech. J. 1331 (1954) .................................................................................. 7, 8
Gary Mullett, Wireless Telecommunications Systems and Networks (2006) ... 16, 17
Haim Kaplan, Maria Strauss & Mario Szegedy, Just the Fax – Differentiating Voice and Fax Phone Lines Using Call Billing Data, 10 Proc. ACM-SIAM Symp. Discrete Algorithms (1999) ..................................................................... 21
Harry G. Perros, Connection-Oriented Networks: SONET/SDH, ATM, MPLS and Optical Networks (2005) .............................................................................. 10
Hearing on Continued Oversight of the Foreign Intelligence Surveillance Act Before the S. Comm. on the Judiciary, 113th Cong. 3 (2013) (written testimony of Edward W. Felten, Professor, Princeton Univ.) ............... 18
John Anderson, Intelligent Networks: Principles and Applications (2002) ........... 12
John Burgess, Privacy Issues Pervade Plans For ‘Caller ID’ Phone Service, Wash. Post, Dec. 5, 1989 .................................................................................... 13
John G. van Bosse & Fabrizio U. Devetak, Signaling in Telecommunication Networks (2nd ed. 2007) ..................................................................................... 11
Jonathan Mayer & Patrick Mutchler, MetaPhone: The NSA Three-Hop (Dec. 9, 2013)...................................................................................................... 26
Jonathan Mayer & Patrick Mutchler, MetaPhone: The Sensitivity of Telephone Metadata (Mar. 12, 2014)...................................................... 21, 22, 24
Manlino De Domenico, Antonio Lima, & Mirco Musolesi, Interdepedence and Predictability of Human Mobility and Social Interactions, Pervasive and Mobile Computing 9.6 (2013) ...................................................................... 23
Martin B. H. Weiss, Communications Standards, 4 The Froelich/Kent Encyclopedia of Telecommunications (1992)..................................................... 11
Matthew Stafford, Signaling and Switching for Packet Telephony (2004) ............ 11
Mitch Betts, Firms Seek Their Magic Number Through ISDN, Computerworld, Feb. 5, 1990.............................................................................. 13
Nat’l Inst. of Stds & Tech., Guidelines on Cell Phone Forensics, Special Pub. No. 800-101 (May 2007).................................................... 16, 17, 18
Nat’l Research Council, Protecting Individual Privacy in the Struggle Against Terrorists: A Framework for Program Assessment (2008) ................................ 20
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Office of the Inspector Gen., Nat’l Sec. Agency, Cent. Sec. Serv., Working Draft ST-09-0002 (Mar. 24, 2009)...................................................................... 25
PewResearch Internet Project, Mobile Technology Fact Sheet (2014) .................. 30
Phil Lapsley, Exploding The Phone – Extras (2013) ............................................... 8
Richard A. Becker, Ramón Cáceres, Karrie Hanson, Ji Meng Loh, Simon Urbanek, Alexander Varshavsky, & Chris Volinsky, Clustering Anonymized Mobile Call Detail Records to Find Usage Groups, 1st Workshop on Pervasive Urban Applications (2011)........................................... 21
Robert G. Harris, State Regulatory Policies and the Telecommunications/Information Infrastructure, The Changing Nature of Telecommunications/Information Infrastructure (Computer Sci. & Telecomm. Bd. and Nat'l Research Council eds., 1995) ......... 9
Robert J. Chapuis & Amos E. Joel, 100 Years of Telephone Switching, Part 2 (2003) ................................................................................................................ 8, 9
Rodrigo de Oliveria, et al., Towards a Psychographic User Model form Mobile Phone Usage, Proc. CHI 11’ EA Hum. Factors Comp. Sys. (2011) ...... 21
Sense Networks, About the Company (2013) ......................................................... 23
Stephen Gorove, Major Milton Smith, Ram Jakhu, Robert R. Bruce, et. al., Developments in the International Law of Telecommunications Strategic Issues for A Global Telecommunications Market, 83 Am. Soc’y Int’l L. Proc. 385 (1989) .................................................................................................. 11
Supplemental Brief of EPIC, State v. Earls, 214 N.J. 564 (2013).......................... 19
Verizon, Glossary of Telecom Terms (2012).......................................................... 18
Verizon, Privacy Policy (2014) .............................................................................. 19
Your Phone Dial Computes Your Bill, Popular Sci., Feb. 1949 ............................... 7
Yves-Alexandre de Montjoye, César A. Hidalgo, Michel Verleysen & Vincent D. Blondel, Unique in the Crowd: The Privacy Bounds of Human Mobility, Sci. Rep. 3 (2013) ................................................................... 22

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INTEREST OF THE AMICI1 The Electronic Privacy Information Center (“EPIC”) is a public interest research center in Washington, D.C., established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and

other Constitutional values. EPIC routinely participates as amicus curiae before federal and state courts

in cases concerning the protection of privacy. See, e.g., Riley v. California, 134 S. Ct. 2473 (2014); Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013); Florida v. Harris, 133 S. Ct. 1050 (2013); United States v. Jones, 132 S. Ct. 945 (2012); Herring v. United States, 555 U.S. 135 (2009); Hiibel v. Sixth Judicial Dist. Ct. of Nevada, Humboldt Cnty., 542 U.S. 177 (2004); State v. Earls, 214 N.J. 564 (2013); Commonwealth v. Connolly, 454 Mass. 808 (2009).

EPIC has a particular interest in the NSA surveillance program as the organization has testified before Congress on the need to limit the scope of the

agency’s surveillance activities and brought the first challenge to the NSA telephone record collection program to the Supreme Court. In re EPIC, 134 S. Ct. 638 (2013).

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1 The parties consent to the filing of this brief. In accordance with Rule 29, the undersigned states that no monetary contributions were made for the preparation or submission of this brief. This brief was not authored, in whole or in part, by counsel for a party.
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Several members of the EPIC Advisory Board are expert in the matter currently before this Court and have written extensively on the legal, technical and policy issues arising from the NSA’s domestic surveillance activities. See, e.g., Laura K. Donohue, Bulk Metadata Collection: Statutory and Constitutional Considerations, 37 Harv. J. L. & Pub. Pol’y 759 (2013); Bruce Schneier, Metadata Equals Surveillance, Schneier on Security (Sept. 23, 2013).
The EPIC amicus brief is joined by 33 technical experts and legal scholars: EPIC Technical Experts and Legal Scholars
Alessandro Acquisti, Professor, Heinz College, Carnegie Mellon University James Bamford, Author and Journalist Ann Bartow, Professor of Law, Pace Law School Colin J. Bennett, Professor, University of Victoria Francesca Bignami, Professor of Law, George Washington University School
of Law Christine L. Borgman, Professor & Presidential Chair in Information Studies,
University of California Los Angeles danah boyd, Founder, Data & Society Research Institute Julie E. Cohen, Professor of Law, Georgetown University Law Center Danielle Keats Citron, Lois K. Macht Research Professor of Law, University of
Maryland School of Law Cynthina Dwork, Distinguished Scientist, Microsoft Simon Davies, Project Director, London School of Economics

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Laura K. Donohue, Professor of Law, Director of the Center for National Security and the Law, Georgetown University Law Center
David Farber, Distinguished Career Professor of Computer Science and Public Policy, School of Computer Science, Carnegie Mellon University
Addison Fischer, Former Owner, RSA Data Security; Co-Founder, Verisign
David H. Flaherty, Professor Emeritus of History and Law, University of Western Ontario; Information Privacy Commissioner for British Columbia, 1993-99
Deborah Hurley, Chair, EPIC Board of Directors
Kristina Irion, Institute for Information Law, University of Amsterdam
Jerry Kang, Professor of Law, UCLA School of Law
Chris Larsen, CEO, Ripple Labs Inc.
Harry Lewis, Gordon McKay Professor of Computer Science, School of Engineering and Applied Science, Harvard University
Anna Lysyanskaya, Professor of Computer Science, Brown University
Gary T. Marx, Professor Emeritus, Massachusetts Institute of Technology
Dr. Pablo Molina, Adjunct Professor, Georgetown University
Helen Nissenbaum, Professor, Media, Culture and Communications, New York University
Frank Pasquale, Professor of Law, University of Maryland Carey School of Law
Dr. Deborah C. Peel, M.D., Founder and Chair, Patient Privacy Rights
Chip Pitts, Lecturer, Stanford Law School and Oxford University

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Ronald L. Rivest, Professor of Electrical Engineering and Computer Science, Massachusetts Institute of Technology
Bruce Schneier, Security Technologist; Author, Schneier on Security (2008)
Barbara Simons, IBM Research (retired)
Frank Tuerkheimer, Professor of Law, University of Wisconsin Law School
Sherry Turkle, Abby Rockefeller Mauzé Professor, Massachusetts Institute of Technology
Edward Viltz, President, Internet Collaboration Coalition

(Affiliations are for identification only)

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SUMMARY OF THE ARGUMENT This case presents a critical Constitutional question: whether the collection of all domestic telephone records of American telephone customers violates a reasonable expectation of privacy. The Supreme Court has never considered government surveillance activity of this scope; current case law relies on an opinion from an era before e-mail, cell phones, and mobile apps, when most metadata was not available to the government because it was never created. Modern communications technology generates a constant stream of detailed information about our private lives, raising concerns about data breaches, identity theft, and the wrongful disclosure of personal information. Legal scholars and technical experts affiliated with EPIC believe that changes in technology and the Supreme Court’s recent decision in Riley v. California favor a new legal rule that recognizes the privacy interest inherent in modern communications records.
ARGUMENT The ongoing collection of Americans’ telephone call records by the National Security Agency is an unprecedented invasion of privacy that contravenes the core purpose of the Fourth Amendment: to limit the government’s ability to search private records without individualized suspicion and the oversight of a neutral magistrate.

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The decision of the lower court that the NSA’s routine collection of all telephone call records of all telephone customers does not constitute a Fourth Amendment “search” relies on an opinion from the 1970s in which the police monitored calls from a single phone line following the suspicious activity of an identified suspect. Smith v. Maryland, 442 U.S. 735 (1979).
Reliance on Smith v. Maryland is untenable today for three reasons: (1) communications systems have changed dramatically since the era of the rotary dial phone; (2) the vast amount of metadata generated today was unavailable when Smith was decided; and (3) the Supreme Court’s recent decision in Riley v. California, 134 S. Ct. 2473 (2014), recognized that the privacy interests of phone users today are far greater than the interests the Court considered when phones were tethered to desks, email was for computer geeks, and no one could take a picture by holding up a telephone receiver.

I. The Modern Communications System is Entirely Unlike the Telephone Network of the 1970s The analog telephone network of the 1970s was entirely unlike the modern
digital network that today offers a vast range of voice, data, and messaging services and simultaneously records every transaction that occurs. Telephone service was provided as a public utility, local calls were not individually billed, and there was no opportunity to engage in the massive data mining or network analysis that occurs today. The telephone system did not generate the transactional data that

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is a routine part of SS7, the current network technology. So much has changed since the era of the rotary phone that Chief Justice Roberts in the recent unanimous opinion for the Court remarked that we are so attached to our smartphones today that “the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Riley 134 S. Ct. at 2484.
A. In the Analog Era Little Phone Data was Generated Prior to the introduction of the earliest electronic switching systems in the 1960s and 70s, most telephone calls in the United States were processed by analog switches that had limited accounting and billing capabilities. Most of these analog switches relied on “Automated Message Accounting” systems, which were introduced in the Bell System in 1948 and recorded customer data on perforated paper tapes (earlier systems relied on handwritten notes from telephone operators). G.V. King, Centralized Automatic Message Accounting System, 33-6 Bell Sys. Tech. J. 1331, 1332 (1954). These analog accounting systems were designed to handle three different types of calls: flat-rate local calls, message rate calls, and long distance toll calls. Your Phone Dial Computes Your Bill, Popular Sci., Feb. 1949, at 135-36. Most local calls were billed on a flat-rate monthly basis, and automated accounting equipment was not used to record any details of these calls. King, Centralized Automatic Message Accounting System at 1333. For calls billed on a message rate basis, the accounting system would record a two-line entry

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containing “the calling office code and telephone number, the billing index and the trunk identity” along with the duration of the call. Id. at 1339. The more extensive four-line entries also contained “the called office code and telephone number,” but were only used for detail-billed toll calls and special bulk billed calls that required additional records. Id. In situations where a toll call could not be completed by a switch capable of automated message accounting, customers had to be connected via an operator who would manually record the details of the call. Id. at 1334-35.
As the automated message accounting system was deployed throughout the United States beginning in the 1950s, it was necessary to centralize the accounting function due to the high cost of the infrastructure relative to the volume of toll calls at many of the smaller local telephone offices. King, Centralized Automatic Message Accounting System at 1333; see also Phil Lapsley, Exploding The Phone – Extras (2013).2 The automated message accounting system also evolved with the development of “automatic number identification” technology, which was deployed to ensure billing accuracy throughout the Bell System by 1961. See Robert J. Chapuis & Amos E. Joel, 100 Years of Telephone Switching, Part 2, at 35 (2003). During the 1950s and ‘60s, the Bell System continued to install and use centralized automatic message accounting systems, see Lapsley, while Bell Laboratories conducted research into new electronic switching systems. Robert J.

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2 Available at http://explodingthephone.com/extras/ama.php.
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Chapuis & Amos E. Joel, 100 Years of Telephone Switching, Part 2, at 48-56 (2003). The integration of digital computing technology into the telecommunications industry was ongoing throughout the 1970s, and the evolution of telecommunications services was rapid. See id. at 114-115. The first electronic switching system, No. 1 ESS, developed by Western Electric and Bell Laboratories was put into operation in Succasunna, New Jersey in 1965, and each of the 24 Regional Bell Operating Companies had installed at least one ESS by 1967. Id. at 158. These electronic switching systems began using magnetic tape drives to store call detail information in the 1970s, but memory was limited and storage of call details was necessarily temporary. See id. at 345.
Thus, in the period leading up to the Court’s decision in Smith v. Maryland, there was no way for the government to routinely obtain call detail information for all calls placed in the United States. Most of the call records, other than certain long distance billing records, simply did not exist. Local call details were ephemeral because most customers paid a flat monthly telephone rate, and did not receive an itemized bill. Robert G. Harris, State Regulatory Policies and the Telecommunications/Information Infrastructure, The Changing Nature of Telecommunications/Information Infrastructure (Computer Sci. & Telecomm. Bd. and Nat'l Research Council eds., 1995).

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Even after the development of advanced electronic switching technologies, telephone companies had little incentive to store transactional data. By the mid1970s, magnetic tape backup storage was integrated into the most advanced electronic switches. C.F. Ault, J.H. Brewster, T.S. Greenwood, R.E. Haglund, W.A. Read, & M.W. Rolund, 1A Processor: Memory Systems, 56-2 Bell Sys. Tech. J. 181, 201 (1977). But there was little space to store phone records as bandwidth had to be preserved for other functions. The shift to “common channel” signaling in 1976 illustrates the technological limitations of previous signaling systems. In a common channel signaling system, separate telephonic channels were required in order to set up a phone call. Harry G. Perros, Connection-Oriented Networks: SONET/SDH, ATM, MPLS and Optical Networks 296 (2005). These were the signaling channel, which carries call information (such as the destination telephone number) and the bearer channel, which carries the voices. Id. In the early 1976, the United States implemented its first “common channel” telephonic signaling system. Id.
Previously, telephones had relied on a “channel-associating” system for connecting phone calls. Under the “channel-associating” system, all of the information needed to set up a call (i.e., both voice and call data) was sent over the same channel. “In common-channel signaling, the call information was sent between switches over a channel that was dedicated only to signaling; that is, all

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signals had the same channel in common with each other. In the 1970s, the Bell System introduced the CCIS system, which was a variant of CCITT SS6.” Martin B. H. Weiss, Communications Standards, 4 The Froelich/Kent Encyclopedia of Telecommunications 72 (1992). This meant that the already-limited bandwidth provided for a phone call had to be shared between signal links and bearer links, resulting in lower available bandwidth for the voice information. Matthew Stafford, Signaling and Switching for Packet Telephony 56 (2004).
Under the early “common channel” system, called Signaling System 6 or CCIS 6 (after the international standards-setting body that developed SS6), bearer channels and signaling channels were split. Stephen Gorove, Major Milton Smith, Ram Jakhu, Robert R. Bruce, et. al., Developments in the International Law of Telecommunications Strategic Issues for A Global Telecommunications Market, 83 Am. Soc’y Int’l L. Proc. 385, 398 (1989). All signaling information occupied one channel, allowing all other channels to become bearer channels. John G. van Bosse & Fabrizio U. Devetak, Signaling in Telecommunication Networks 75 (2nd ed. 2007). Bell Laboratories, the company that installed the SS6 in the United States, envisioned many possibilities for common channel signaling, but they could not have predicted the subsequent explosion in advanced telecommunications services that was enabled by future common channel systems. And as the

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telecommunications network expanded to provide advanced services, it also began to generate and store an enormous amount of user data.
B. New Consumer Privacy Safeguards Were Established As Caller Identified Data Was Generated The development of advanced common channel signaling techniques continued in the 1980s and culminated in the development and implementation of Signaling System 7, which was first adopted as a worldwide standard by International Telegraph and Telephone Consultative Committee (CCITT) in 1980 and later implemented in the U.S. and other countries. Anu A. Gokhale, Introduction to Telecommunications 141 (2nd ed. 2005). “MCI (now part of WorldCom) first implemented SS7 in its network in April 1988 in Los Angeles and Philadelphia.” Annabel Z. Dodd, The Essential Guide to Telecommunications 219 (3d ed. 2002). Implementation of the SS7 Protocol enabled the development and use of new enhanced services based on the “Intelligent Network” model. See generally John Anderson, Intelligent Networks: Principles and Applications (2002). These new features created opportunities for businesses to offer new advanced telecommunications services, including, eventually, Internet services, but they also exposed consumers to new privacy risks. And as a result of opposition to new privacy-invasive features, the Federal Communications Commission adopted standards to enable greater user privacy.

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One new service in particular, Calling Name Delivery (now known as Caller-ID), caught the immediate attention of consumers, privacy advocates, legislators, regulators, and courts. See Caller-ID Technology: Hearing on S. 2030 Before the Subcomm. on Tech. and the Law of the S. Comm. on the Judiciary, 101st Cong. (1990); David B. Hack, Cong. Research Serv., IB 90085, Caller I.D. and Automatic Telephone Number Identification (1991). Caller ID allowed telephone companies to disclose to customers “the number of the phone from which an incoming call was placed.” John Burgess, Privacy Issues Pervade Plans For ‘Caller ID’ Phone Service, Wash. Post, Dec. 5, 1989, at B1. This new service faced intense backlash because customers wanted to control the disclosure of their telephone numbers and did not want unlisted numbers to be shared. There was also concern that undercover police officers and at-risk individuals, such as women in shelters trying to reach family members, would be discouraged from using phone services. Id. The service was also controversial because it allowed marketing firms and other companies to monetize caller records. See Mitch Betts, Firms Seek Their Magic Number Through ISDN, Computerworld, Feb. 5, 1990, at 67.
As phone providers began to offer Caller ID service, consumers brought legal action to prevent the disclosure of their personal information. In Pennsylvania, users brought a complaint against the Public Utility Commission, which suspended Caller ID on March 31, 1989. Barasch v. Bell Telephone Co. of

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Pa., 605 A.2d 1198 (Pa. 1992). The Pennsylvania Supreme Court subsequently held that the Caller ID service violated the state’s wiretap law because it operated without consent of the telephone users. Id. at 1203. The Federal Communications Commission also issued a Final Rule requiring providers of Caller ID services to enable a per-call blocking feature to allow for caller anonymity, but also preempted all state law restrictions on the provision of Caller ID services. See People of the State of Cal. v. FCC, 75 F.3d 1350, 1357-58 (9th Cir. 1996).
Response by users, lawmakers, and regulators to privacy issues arising from the implementation of SS7 and services such as Caller ID showed that as the amount of transactional information about users’ communications increased, new privacy safeguards were necessary to preserve user anonymity and autonomy. But the collection of user data has become even more widespread over the last two decades and Fourth Amendment jurisprudence has failed to reflect the expectation of consumers that their personal phone records will not be routinely collected by the government.
C. Today a Vast Amount of Data is Generated by Phone Companies In the modern network, so much data is generated about user activities that the privacy interest in non-content data is often greater than the privacy interest in the content of communications. It is the transactional data that allows data mining,

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network analysis, link analysis, and event sequencing, analytic techniques that are simply not available with solely the content of communications.
The FISA Court has defined “telephony metadata” as “comprehensive communications routing information, including but not limited to”
• Session identifying information o Originating telephone number o Terminating telephone number o International Mobile Subscriber Identity (IMSI) number o International Mobile station Equipment Identity (IMEI) number
• Trunk identifier • Telephone calling card numbers • Time of call • Duration of call In re Application of the FBI for an Order Requiring the Production of Tangible Things from [REDACTED], Br. No. 14-67 at *3 n.2 (FISC Mar. 28, 2014).3 The NSA’s telephony metadata extend beyond these categories of information. As the FISC explained, “NSA may apply the full range of SIGINT analytic tradecraft to the results of intelligence analysis queries of the collected BR metadata.” Id. at *12 n.15. So, for example, an NSA analyst could use publicly
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3 Available at http://www.dni.gov/files/documents/0627/BR_1467_Primary_Order.pdf.
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available information including “tools such as reverse telephone directories, public search engines and other NSA databases” to identify the phone users. See Dana Priest, Piercing the Confusion Around NSA’s Phone Surveillance Program, Wash. Post (Aug. 8, 2013).4
Telephony metadata can be used to identify a person making a call, a person receiving a call, a sequence of communications between people, the participation of others, family relations, business relations, medical conditions, political affiliations, and religious belief. An individual cell phone subscriber may be followed through the International Mobile Subscriber Identity (“IMSI”) number, which is unique for every subscriber. Gary Mullett, Wireless Telecommunications Systems and Networks 101-102 (2006). This 15-digit number includes a three-digit country code and three-digit mobile network code. Id. The IMSI also contains a unique subscriber number assigned by a user’s mobile carrier. Id. The IMSI is stored in the phone’s Subscriber Identity Module (“SIM”) card. Id. A SIM card is a component of a cell phone that contains essential information about the subscriber. Nat’l Inst. of Stds & Tech., Guidelines on Cell Phone Forensics, Special Pub. No. 800-101, at 7 (May 2007).5 SIM cards are removable and may be used in different

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4 Available at http://www.washingtonpost.com/world/national-security/piercingthe-confusion-around-nsas-phone-surveillance-program/2013/08/08/bdece566fbc4-11e2-9bde-7ddaa186b751_story.html. 5 Available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800101r1.pdf (A SIM card authenticates the mobile device user to the mobile network
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mobile devices. Moving a SIM card to another device transfers a subscriber’s IMSI number and other information stored on the SIM. Id.
A particular mobile device can also be tracked through the International Mobile Equipment Identity (“IMEI”). Mullett, supra, at 102. The IMEI is a 15digit number that identifies the cell phone’s manufacturer, model, and country of approval. NIST at 38. The IMEI is stored directly on the cell phone. Id. at 38. Thus, unlike the IMSI, the IMEI remains on the phone, even if the user moves the SIM card to another device.
Mobile carriers maintain IMSI and IMEI numbers with their subscriber records. Id. at 53. Subscriber records also typically include information such as the customer’s name and address, telephone number, alternate contact information, and credit card numbers. Id. at 53. Thus, an IMSI or IMEI can provide access to sensitive personal information about a particular subscriber. Some users might take steps to make it more difficult to link an IMSI or IMEI to their account. For example, an individuals use prepaid cell phones, which be purchased anonymously over the counter. But, as of February 2013, only 28 percent of all mobile customers used prepaid phones. Alina Tugend, Cellphone Service Without Signing on the Dotted Line, N.Y. Times, Feb. 9, 2013, at B5. Moreover, even prepaid customers may provide personal information such as credit card numbers used to purchase
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and can also stores a user’s personal information including “phonebook entries, text messages, last numbers dialed (LND) and service-related information.”)
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additional airtime or email addresses to receive notifications. NIST, Guidelines on Cell Phone Forensics at 53. For the vast majority of cell phone users, IMSI and IMEI numbers can be easily connected to their individual subscriber records. Hearing on Continued Oversight of the Foreign Intelligence Surveillance Act Before the S. Comm. on the Judiciary, 113th Cong. 3 (2013) (written testimony of Edward W. Felten, Professor, Princeton Univ.)
To accurately bill a subscriber, mobile carriers record the time and duration of a call. NIST, Guidelines on Cell Phone Forensics at 52. Carriers also record location data by logging a call’s trunk identifier. A trunk identifier reveals the route through a network that a phone call takes. Verizon, Glossary of Telecom Terms (2012) (last viewed Sept. 4, 2014);6 Hearing on Continued Oversight of the Foreign Intelligence Surveillance Act Before the S. Comm. on the Judiciary, 113th Cong. 3 (2013) (written testimony of Edward W. Felten, Professor, Princeton Univ.). Thus, a trunk identifier can reveal the location of a phone user based on how their call was routed.
Mobile carriers also maintain cell site location information (“CSLI”) records for every mobile phone, which can be used to identify the precise location from which each call was made. Although the NSA does not currently collect cell site location information as part of the telephony metadata program, it has admitted
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6 http://www22.verizon.com/wholesale/glossary/Glossary-of-Telecom-Termst.html.
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to collecting cell location information in the past to test its future capabilities. Ellen Nakashima, NSA Had Test Project to Collect Data on Americans’ Cellphone Locations, Director Says, Wash. Post (Oct. 2, 2013).7 Cell site location information includes a record of the tower and tower-sector that a phone is connected to at a
particular time (typically when a call is placed). See Supplemental Brief of EPIC at 10-14, State v. Earls, 214 N.J. 564 (2013). Depending on the range of the cell tower, CSLI can be used to locate a device in a neighborhood or on a particular block, or it can be used to pinpoint a device in a specific building or room. Id.
In addition to standard telephony metadata, Verizon and other phone companies also collect a wide range of other data about users. Verizon may collect
from its customers information “such as call records, websites visited, wireless location, application and feature usage, network traffic data, product and devicespecific information and identifiers, service options you choose, mobile and device numbers, video streaming and video packages and usage, movie rental and purchase data, FIOS TV viewership, and other similar information.” Verizon, Privacy Policy (2014).8 And users maintain strong privacy interests in this data as well. The Federal Communications Commission recently fined Verizon $7.4
Million for failing to provide users with an opt-out prior to using their personal
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7 Available at http://www.washingtonpost.com/world/national-security/nsa-hadtest-project-to-collect-data-on-americans-cellphone-locations-directorsays/2013/10/02/65076278-2b71-11e3-8ade-a1f23cda135e_story.html. 8 Available at http://www.verizon.com/about/privacy/policy/.
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information for marketing campaigns. 33 FCC Daily Dig. 166 (FCC Sept. 3, 2014).9

II. Communications Metadata Reveals Sensitive Personal Information The metadata generated today by the telephone network can be analyzed and
used to determine intimate details of a user’s life including that person’s interests, activities, beliefs, and affiliations. Telephony metadata can also reveal associations and personal relations. These large data sets involving millions of records can reveal a very precise picture of private activities.
A. Metadata Reveals Our Social Interactions and Private Associations Through current data analysis techniques, metadata exposes our social interactions and private associations. Metadata is created by almost every aspect of our daily lives, and the data is held by many organizations. Nat’l Research Council of the Nat’l Research Council, Protecting Individual Privacy in the Struggle Against Terrorists: A Framework for Program Assessment 32-33 (2008). Our personal “behavior, communications, and relationships” are now routinely recorded. Id. And widely available tools can now be used to examine and analyze that data to reveal private information about our actions and associations. Using metadata, researchers have uncovered private facts about individuals. For example, researchers at AT&T labs have used telephone metadata to predict
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9 Agency documents are available at http://www.fcc.gov/document/verizon-pay74m-settle-privacy-investigation.
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whether a human or a fax machine is making a call,10 whether a phone line is used for business or personal purposes,11 what social group a caller belongs to,12 and to approximate the personality traits of specific subscribers.13 Analysis of large metadata sets equivalent to those created by the NSA can reveal even more

personal information including the identities of our friends and associates, the identities of our loved ones, and even our political, religious, or social affiliations.
In a recent study, Stanford researchers tested the sensitivity of metadata by analyzing the telephone records of several hundred volunteers. See Jonathan Mayer

& Patrick Mutchler, MetaPhone: The Sensitivity of Telephone Metadata (Mar. 12, 2014).14 The study gathered a few months of phone activity from 546 participants

via an app voluntarily installed on Android smartphones. Id. Analysis of this phone
data revealed a number of patterns characteristic of very sensitive activities. For
example, one participant repeatedly called a specialty firearm store that focuses on
semiautomatic rifles and had a lengthy conversation with the customer service
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10 Haim Kaplan, Maria Strauss & Mario Szegedy, Just the Fax – Differentiating Voice and Fax Phone Lines Using Call Billing Data, 10 Proc. ACM-SIAM Symp. Discrete Algorithms (1999). 11 Corinna Cortes & Daryl Pregibon, Giga-mining, Proc. KDD, New York (1998). 12 Richard A. Becker, Ramón Cáceres, Karrie Hanson, Ji Meng Loh, Simon Urbanek, Alexander Varshavsky, & Chris Volinsky, Clustering Anonymized Mobile Call Detail Records to Find Usage Groups, 1st Workshop on Pervasive Urban Applications (2011). 13 Rodrigo de Oliveria, et. al, Towards a Psychographic User Model form Mobile Phone Usage, Proc. CHI 11’ EA Hum. Factors Comp. Sys. (2011)(. 14 http://webpolicy.org/2014/03/12/metaphone-the-sensitivity-of-telephonemetadata/.

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department of an automatic rifle producing firearm manufacturer. Id. Another participant “contacted a home improvement store, locksmiths, a hydroponics dealer, and a head shop,”15 all within three weeks. Id. Another participant who had a long call with her sister, subsequently called the local Planned Parenthood several times within two days. Id. Additional calls were made two weeks later with a final one occurring one month later. The Stanford researchers were also able to infer specific medical conditions (e.g. multiple sclerosis) from the call patterns they observed. Id.
All metadata can be used to make inferences about our daily activities, but location data is particularly sensitive since it can uniquely identify individuals, reconstruct a person’s movements across space and time, predict future movements, and determine social interactions and private associations. MIT researchers studied a little over a years worth of the mobile phone datasets of roughly 1.5 million users. The MIT researchers found that “four spatio-temporal points are enough to uniquely identify 95% of the individuals.” Yves-Alexandre de Montjoye, César A. Hidalgo, Michel Verleysen & Vincent D. Blondel, Unique in the Crowd: The Privacy Bounds of Human Mobility, Sci. Rep. 3 (2013). Researchers have also studied location data of cell phone users and their acquaintances to accurately predict an individual’s future movements. Manlino De

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15 Store that sells tobacco paraphernalia and is often associated with marijuana use.
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Domenico, Antonio Lima, & Mirco Musolesi, Interdependence and Predictability of Human Mobility and Social Interactions, Pervasive and Mobile Computing 9.6 (2013). Given a large enough data set, analysts can predict an individual’s location not only in the immediate future, but even months and years ahead of time. Adam Sadilek & John Krumm, Far Out: Predicting Long-Term Human Mobility, 26 Proc. AAAI Conf. Artificial Intelligence (2012). The company Sense Networks “builds proprietary mobile user profiles which incorporate over 1,000 behavioral attributes that are extracted from location data.” Sense Networks, About the Company (2013).16
It was recently revealed that the NSA uses location data collected under a different legal authority to predict the locations of military targets as well as individuals who may come into contact with those targets in the future, and to identify new targets based on patterns of behavior. See Ashkan Soltani & Barton Gellman, New Documents Show How the NSA Infers Relationships Based on Mobile Location Data, Wash. Post (Dec. 10, 2013).
B. Even Individual Call Records Can Reveal Sensitive Private Facts About Cell Phone Users The use of certain phone numbers will necessarily reveal sensitive personal information: suicide hotlines, sexual abuse hotlines, gambling or drug addiction hotlines, and domestic abuse hotlines. Without the promise of privacy, many
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16 https://www.sensenetworks.com/company/about-the-company/.
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individuals would not be willing to seek the support that they need. Similarly, calls to a physician’s office, a gun store, a psychiatrist, a pharmacy, a medical marijuana dispensary, a church, or an abortion clinic would all reveal information about the caller’s private activities. Many charities and political groups also now accept donations via text message, so a record of a message sent to one number could reveal the users political affiliation.
In one study, researchers were able to infer from single call records the users: religious affiliation, medical conditions, gun ownership, and political views among other sensitive and private information. See Jonathan Mayer & Patrick Mutchler, MetaPhone: The Sensitivity of Telephone Metadata (Mar. 12, 2014). In checking the precision of the inference of religious affiliation, the Stanford researchers were 73% accurate in their assumption “that a person’s most-called religion is their own religion.” Id. Call to health care providers are particularly revealing and 57% of the participants called a health services number. Id. Many of the health service phone numbers were associated with specific services. For example, 8% of the participants called a health service provider specializing in mental health and family services, 6% called sexual and reproductive health service providers, and another 1% called a substance abuse number. Id.

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C. The Government’s Analysis of the Phone Metadata Is Specifically Designed to Uncover The Private Associations of Users The NSA uses computer algorithms to create detailed social graphs through a process known as “contact chaining.” See Documents on N.S.A. Efforts to Diagram Social Networks of U.S. Citizens, N.Y. Times (Sept. 28, 2013) (showing an internal NSA memo on new “contact chaining” procedures from 2011).17 The NSA has described contact chaining as “the process of building a network graph that models the communication (e-mail, telephony, etc.) patterns of targeted entities (people, organizations, etc) and their associates from the communications sent or received by targets.” Office of the Inspector Gen., Nat’l Sec. Agency, Cent. Sec. Serv., Working Draft ST-09-0002 (Mar. 24, 2009) (discussing a proposed amendment to Department of Defense procedures for contact chaining). NSA analysts conduct this contact chaining procedure beginning with a target or “seed” number and extending through all “second and third tier contacts of the identifier.” Administration White Paper: Bulk Collection of Telephony Metadata Under Section 215 of the USA PATRIOT Act 3 (Aug. 9, 2013).18 Each layer of analysis is referred to as a “hop.” The first “hop” includes the numbers that directly contact the target; the second “hop” includes the numbers that directly

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17 Available at http://www.nytimes.com/interactive/2013/09/29/us/documents-onnsa-efforts-to-diagram-social-networks-of-us-citizens.html?_r=0. 18 Available at https://www.documentcloud.org/documents/750211-administiationwhite-paper-section-215.html, http://perma.cc/V7VM-5MAU.
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contact first hop numbers; and the third “hop” are those numbers that directly contact the second hop numbers. Id. at 3-4. The number of phone records analyzed grows exponentially as the number of hops increases.
The NSA has emphasized that the number of “seed” numbers queried is low, but this ignores the broad impact of the contact chaining process. For example, in 2012, the NSA queried 288 phone numbers (known as “seeds”). The contact chaining algorithms the NSA uses, though, implicate a much larger set of phone numbers. A three-hop analysis would yield 2.5 million numbers if each person contacted 40 unique people. Jonathan Mayer & Patrick Mutchler, MetaPhone: The NSA Three-Hop n.3 (Dec. 9, 2013).19 The NSA stores telephony metadata collected under this program for five years. The social graphing of the past five years of a persons phone number will produce a very detailed and intimate picture of his or her life.

III. The Supreme Court’s Holding in Smith v. Maryland Is Not Applicable to Modern Metadata After Riley v. California The Supreme Court recently addressed Fourth Amendment protections for
phone data in the modern age in Riley v. California, 134 S. Ct. 2473 (2014). In
Riley, the Court considered whether officers could search an individual’s cell
phone without a warrant, incident to a lawful arrest. The Court ruled unanimously
that such searches of modern cell phones were unreasonable: the strong privacy
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19 Available at http://webpolicy.org/2013/12/09/metaphone-the-nsa-three-hop/.
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interest in the protection of digital records, the qualitatively different nature of modern cell phone data, and the pervasive use of modern mobile devices required a warrant prior to the search. This holding has broad implications, especially for any case involving the collection of digital files and metadata.
In this case, the lower court held that the challenge to the NSA Metadata program must be dismissed because the decision in Smith v. Maryland, 442 U.S. 735 (1979), “constrains” the ability of the court to find a reasonable expectation of privacy in telephone call detail records.20 But the Supreme Court’s holding in Riley raises substantial questions about the continued relevance of Smith.
The Court in Riley was concerned not only with the disclosure of photos and other application data, but also with police access to non-content information generated by mobile phones. The Court emphasized that “[d]ata on a cell phone can also reveal where a person has been,” and that location information “reflects a wealth of detail about” certain “family, political, professional, religious, and sexual associations.” Riley 134 S. Ct. at 2490 (citing United States v. Jones, 132 U.S. 945, 955 (2012) (Sotomayor, J., concurring)). These are the same considerations now before this Court. The Supreme Court in Riley also observed that “call logs typically contain more than just phone numbers” and are thus more sensitive than traditional pen register data. Id. at 2493. Moreover, the Court determined that cell
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20 Smith v. Obama, ___ F.Supp.2d ___, No. 2:13-cv-00257-BLW, slip op. at 8 (D. Idaho June 3, 2014).
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phone data was both quantitatively and qualitatively different from its physical analogs. The pervasive use of cell phones in everyday life was also a factor in the Court’s holding that cell phone data deserves greater privacy protection than other physical items. The Court observed that digital data is fundamentally different than traditional analog records, and is deserving of separate Fourth Amendment analysis:
A conclusion that inspecting the contents of an arrestee's pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom. Id. at 2489. At the outset, the Court in Riley recognized that modern cell phones enable the creation and storage of an enormous amount of sensitive data. “The term ‘cell phone’ is itself misleading shorthand, many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.” Riley, 134 S. Ct. at 2489. The Court found that, in particular, the capacity of cell phones to store large aggregations of data implicated broader privacy interests than with physical containers. “[A] cell phone’s capacity allows even just one type of information to convey far more than previously possible.” Id. “A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.” Id. Therefore, the Court’s holding

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was based on its conclusion that the aggregation of data can, and does, affect the Fourth Amendment privacy interest at stake.
The Court also noted that “there is an element of pervasiveness that characterizes cell phones,” impacting the privacy interests at stake. Id. at 2490. “Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception.” Id. And this pervasiveness changes the impact of the government’s action on all citizens’ privacy intersests. “Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.” Id.
Although the Court did not consider in Riley whether the government’s access to all telephone call records held by a service provider constitutes a “search,” the Court’s reasoning clearly undercuts the broad reading of Smith v. Maryland advocated by the Government, and provides lower courts with a basis to establish new privacy rules for digital records.
Consumers today routinely store their e-mails, photographs, notes, calendars, financial records, and other sensitive files on servers hosted and controlled by third party providers. Federal courts have held that these users have a reasonable expectation of privacy in their e-mails, even though third-party providers store the messages. See United States v. Warshak, 631 F.3d 266 (6th Cir. 2010). Major service providers already require that police obtain a warrant before

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seeking stored e-mails, making the Warshak rule applicable for those services nationwide, and the DOJ has not challenged this shift in Fourth Amendment doctrine.
Under the Court’s reasoning in Riley, the call detail records at issue in this case, collected in bulk by the National Security Agency, are also clearly deserving of privacy protection. The records are detailed and comprehensive, covering all calls processed by the provider over the last five years. The mobile and landline phones used to make these calls are also ubiquitous, as the Court recognized in Riley, and thus the collected call data contains information about nearly every American’s calls and connections.
In fact, the bulk telephone records collected by the NSA reveal a great deal more information about social connections between citizens than any traditional pen register data could. But as the Court recognized in Riley, this aggregation of millions of records heightens the privacy harm to each user. Riley, 134 S. Ct. at 2489. And due to the ubiquity of cell phones in the United States, the volume of call data is much higher now than in 1979 before the emergence of mobile phones.21 Location data, in particular, reveals sensitive information including a “comprehensive record of a person’s public movements that reflects a wealth of
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21 As of January 2014, at least 90% of American adults have a cell phone, and 58% have a smartphone. PewResearch Internet Project, Mobile Technology Fact Sheet (2014), available at http://www.pewinternet.org/fact-sheets/mobile-technologyfact-sheet/.
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detail about her familial, political, professional, religious, and sexual associations.” United States v. Jones, 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring).
The lower court’s broad reading of Smith v. Maryland is inconsistent with the Court’s recent holding in Riley. Modern networks generate a wealth of detailed data about our communications, and the ability to analyze and extract sensitive personal information from that data implicates users’ privacy interests in a way inconceivable in the 1970s. To argue that the disclosure of all telephone records of all telephone customers in the United States today is equivalent to the disclosure of the telephone records from a single telephone line in the 1970s is like equating the Hubble space telescope and the bottom of a glass jar because they both enlarge images. The collection and aggregation of private communications data by the NSA on a nationwide scale violates the reasonable expectations of privacy of everyday Americans.

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CONCLUSION Amicus respectfully requests this Court vacate the lower court’s order dismissing the claims in this case and denying Appellant’s motion for a preliminary injunction.

Respectfully submitted,

___/s/ Marc Rotenberg__________ Marc Rotenberg
Counsel of Record Alan Butler Julia Horwitz Jeramie Scott Electronic Privacy Information Center 1718 Connecticut Ave. NW, Suite 200 Washington, DC 20009 (202) 483-1140

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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) and Fed. R. App. P. 32(a)(7)(B) because it contains 6,717 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief also 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 brief has been prepared in a proportionally spaced typeface using Microsoft Office Word for Mac 2011 in 14 point Times New Roman style.

Dated: September 9, 2014

___/s/ Marc Rotenberg__________ Marc Rotenberg

 
 Case 2:13-cv-257 Document <docnum> Filed <datefiled> Page 1 of 7
LC1,TERMED
U.S. District Court District of Idaho (LIVE Database)Version 6.2.2 (CDA − Northern)
CIVIL DOCKET FOR CASE #: 2:13−cv−00257−BLW

Smith v. Obama et al Assigned to: Judge B. Lynn Winmill Case in other court: Ninth Circuit Court of Appeals, 14−35555 Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 06/12/2013 Date Terminated: 06/03/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Anna Jo Smith a Married Woman

represented by Lucas Todd Malek Smith and Malek, PLLC 1250 W. Ironwood, Ste. 316 Couer d'Alene, ID 83814 (208) 215−2411 Email: luke@smithmalek.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter J Smith , IV Smith + Malek, PLLC 601 E. Front Avenue Suite 304 Coeur d'Alene, Id 83814 208−215−2411 Fax: 208−215−2416 Email: peter@smithmalek.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Barack H. Obama in his official capacity as President of the United States of America

represented by Bryan Dearinger U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., Room 7334 Washington, DC 20001 (202) 514−3489 Fax: (202) 616−8470 Email: bryan.dearinger@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Jordan Gilligan United States Department of Justice 1100 L Street, N.W. Room 11200 Washington, DC 20005 202−514−3358 Fax: (202) 616−8470 Email: james.gilligan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marcia Berman U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. , N.W., Room 7132 Washington, DC 20001

Case 2:13-cv-257 Document <docnum> Filed <datefiled> Page 2 of 7

(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 20 Massachusetts Ave. N.W. Washington, DC 20001 202−305−7919 Email: rodney.patton@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Syrena Case Hargrove U.S. Attorney's Office 800 E. Park Blvd., Suite 600 Plaza 4 Boise, ID 83712 208 334 9122 Email: Syrena.Hargrove@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
James R. Clapper in his official capacity as Director of National Intelligence

represented by Bryan Dearinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Jordan Gilligan (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

Syrena Case Hargrove (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Keith B. Alexander in his official capacity as Director of the National Security Agency and Chief of the Central Security Service

represented by Bryan Dearinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Jordan Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcia Berman (See above for address) LEAD ATTORNEY

Case 2:13-cv-257 Document <docnum> Filed <datefiled> Page 3 of 7

ATTORNEY TO BE NOTICED

Rodney Patton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Syrena Case Hargrove (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Charles T. Hagel in his official capacity as Secretary of Defense

represented by Bryan Dearinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Jordan Gilligan (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

Syrena Case Hargrove (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Eric H. Holder in his official capacity as Attorney General of the United States

represented by Bryan Dearinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Jordan Gilligan (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

Syrena Case Hargrove (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 2:13-cv-257 Document <docnum> Filed <datefiled> Page 4 of 7

Defendant
Robert S. Mueller, III in his official capacity as Director of the Federal Bureau of Investigation TERMINATED: 11/07/2013
Defendant
James B. Comey in his official capacity as Director of the Federal Bureau of Investigation

represented by James Jordan Gilligan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bryan Dearinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Jordan Gilligan (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
Syrena Case Hargrove (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/12/2013
06/17/2013
11/07/2013
11/07/2013 11/08/2013 12/02/2013 12/03/2013
12/20/2013

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0976−1027809.), filed by All Plaintiffs. (Attachments: # 1 Cover Sheet, # 2 Summons All Summonses Combined)(Smith, Peter)
2 Summons Issued as to All Defendants (Print attached Summons for service.) (Attachments: # 1 Summons 2, # 2 Summons 3, # 3 Summons 4, # 4 Summons 5, # 5 Summons 6)(krb)
3 AMENDED COMPLAINT against Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Barack H. Obama, James B. Comey, filed by All Plaintiffs.(Smith, Peter)
4 Civil Cover Sheet re 3 Amended Complaint filed by Anna Jo Smith. (Attachments: # 1 Summons Def Comey Summons)(Smith, Peter)
5 Summons Issued as to James B. Comey, (Print attached Summons for service.) (jp)
6 NOTICE of Appearance by James Jordan Gilligan on behalf of All Defendants (Gilligan, James)
7 NOTICE of Assignment to Magistrate Judge and Requirement for Consent sent to counsel for Keith B. Alexander, James R. Clapper, James B. Comey, Charles T. Hagel, Eric H. Holder, Barack H. Obama, Anna Jo Smith re 1 Complaint, 6 Notice of Appearance. Consent/Objection to Magistrate due by 2/6/2014. (jp)
8 MOTION for Preliminary Injunction Peter J Smith, IV appearing for Plaintiff Anna Jo Smith. Responses due by 1/13/2014 (Attachments: # 1 Memorandum in Support of Motion for a Preliminary Injunction, # 2 Affidavit of Anna J. Smith in Support of Motion for a Preliminary Injunction, # 3 Affidavit of Peter J. Smith in Support of Motion for a Preliminary Injunction, # 4 Exhibit 1 of Affidavit of Peter J. Smith IV, #

Case 2:13-cv-257 Document <docnum> Filed <datefiled> Page 5 of 7

12/23/2013 12/23/2013 01/02/2014 01/07/2014 01/15/2014
01/15/2014 01/17/2014 01/24/2014
01/24/2014
01/24/2014 01/27/2014 02/21/2014

5 Exhibit 2 of Affidavit of Peter J. Smith IV, # 6 Exhibit 3 of Affidavit of Peter J. Smith IV, # 7 Exhibit 4 of Affidavit of Peter J. Smith IV, # 8 Exhibit 5 of Affidavit of Peter J. Smith IV)(Smith, Peter)
9 ORDER OF REASSIGNMENT the Clerk of the Court shall reassign this matter to a United States District Judge for all further proceedings. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
DOCKET ENTRY NOTICE of Case Number Change, Case reassigned to Judge B. Lynn Winmill for all further proceedings. Judge Ronald E. Bush no longer assigned to case. Please use this case number on all future pleadings, 2:13−cv−257−BLW (jp)
11 RETURN MAIL undelivered as to Rodney Patton re: 7 Notice of Assignment (jp) (Entered: 01/07/2014)
10 Joint MOTION for entry of briefing schedule and enlargement of page limits re 3 Amended Complaint, 8 MOTION for Preliminary Injunction James Jordan Gilligan appearing for Defendants Keith B. Alexander, James R. Clapper, James B. Comey, Charles T. Hagel, Eric H. Holder, Barack H. Obama, Plaintiff Anna Jo Smith. Responses due by 1/31/2014 (Gilligan, James)
12 SCHEDULING ORDER granting 10 Joint Motion for a Briefing Schedule and Enlargement of Page Limitations. Up to 45 pages for Defendants' Combined Brief in Opposition to Plaintiff's Motion for a Preliminary Injunction and in Support of Defendants' Motion to Dismiss, to be filed not later than 1/24/14; Up to 45 pages for Plaintiff's Combined Reply in Support of Plaintiff's Motion for a Preliminary Injunction and Opposition to Defendants' Motion to Dismiss, to be filed not later than 2/21/14014; and Up to 25 pages for Defendants' Reply Brief in Support of Defendants' Motion to Dismiss, to be filed not later than 3/14/14. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp) (Entered: 01/16/2014)
Set/Reset Deadlines as to 8 MOTION for Preliminary Injunction . Per dkt 12 Responses due by 1/24/2014 Replies due by 2/21/2014. (jp) (Entered: 01/16/2014)
13 DOCKET ENTRY NOTICE OF HEARING regarding 8 Motion for Preliminary Injunction: A Motion Hearing is set for 4/16/2014 at 2:00 PM in Boise − Courtroom 3 before Judge B. Lynn Winmill. (jlg)
14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , MOTION to Dismiss for Lack of Jurisdiction ( Responses due by 2/18/2014)James Jordan Gilligan appearing for Defendants Keith B. Alexander, James R. Clapper, James B. Comey, Charles T. Hagel, Eric H. Holder, Barack H. Obama. (Attachments: # 1 Memorandum in Support (Memorandum in Support of Defendants' Motion to Dismiss and in Opposition to Plaintiff's Motion for a Preliminary Injunction))(Gilligan, James)
15 MEMORANDUM in Opposition re 8 MOTION for Preliminary Injunction filed by Keith B. Alexander, James R. Clapper, James B. Comey, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III, Barack H. Obama. Replies due by 2/10/2014. (Attachments: # 1 Affidavit (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)(Gilligan, James) Modified on 2/21/2014 to link to dkt 14 (jp).
Set/Reset Deadlines as to 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss for Lack of Jurisdiction . Per Order dkt 12, Responses due by 2/21/2014 Replies due by 3/14/2014. (jp) (Entered: 01/27/2014)
16 NOTICE of Availability of Magistrate Judge and Requirement for Consent sent to counsel for Plaintiff & Defendants. Consent/Objection to Magistrate due by 3/31/2014. (jp)
17 MEMORANDUM in Opposition re 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss for Lack of Jurisdiction , 8 MOTION for Preliminary Injunction Reply Brief filed by Anna Jo Smith. Replies due by 3/10/2014.(Smith, Peter)

Case 2:13-cv-257 Document <docnum> Filed <datefiled> Page 6 of 7

03/03/2014 03/07/2014 03/08/2014 03/14/2014 04/01/2014 04/02/2014 04/04/2014 04/10/2014 04/14/2014 05/05/2014 05/15/2014
06/03/2014 06/03/2014
07/01/2014

18 RETURN MAIL undelivered as to Rodney Patton re: 16 Notice of Availability Setting Deadline filed by Anna Jo Smith, James B. Comey, Keith B. Alexander, Charles T. Hagel, James R. Clapper, Barack H. Obama, Eric H. Holder. (st)
19 NOTICE by Keith B. Alexander, James R. Clapper, James B. Comey, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III, Barack H. Obama (Notice Regarding Order of the Foreign Intelligence Surveillance Court) (Gilligan, James)
20 NOTICE by Keith B. Alexander, James R. Clapper, James B. Comey, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III, Barack H. Obama (Defendants Corrected Notice Regarding Order of the Foreign Intelligence Surveillance Court) (Attachments: # 1 Exhibit, # 2 Exhibit)(Gilligan, James)
21 REPLY to Response to Motion re 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss for Lack of Jurisdiction filed by Keith B. Alexander, James R. Clapper, James B. Comey, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III, Barack H. Obama.(Gilligan, James)
The 60 day deadline has expired. Case will remain with District Judge. No more notice of availability or assignment will be sent out. Consent deadline(s) termed. (jp)
22 DOCKET ENTRY NOTICE OF HEARING ON MOTIONS − The Court will hear oral argument regarding the following motions on 4/16/2014 at 2:00 PM in Boise − Courtroom 3 before Judge B. Lynn Winmill: 8 Motion for Preliminary Injunction and 14 Motion to Dismiss. (jlg)
23 Joint MOTION To Reschedule and Relocate Motions Hearing James Jordan Gilligan appearing for Defendants Keith B. Alexander, James R. Clapper, James B. Comey, Charles T. Hagel, Eric H. Holder, Barack H. Obama, Plaintiff Anna Jo Smith. Responses due by 4/28/2014 (Gilligan, James)
24 DOCKET ENTRY ORDER granting 23 Joint Motion to Vacate Hearing Date. The new hearing date shall be May 15, 2014, at 9:00 a.m. in the Federal Courthouse in Coeur d'Alene, Idaho. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dm)
Reset Hearing as to 14 Motion to Dismiss and 8 Motion for Preliminary Injunction pursuant to Order 24 . Motion Hearing reset for 5/15/2014 at 9:00 AM in Coeur d Alene − District Courtroom before Judge B. Lynn Winmill. (jlg)
25 NOTICE by Keith B. Alexander, James R. Clapper, James B. Comey, Eric H. Holder, Barack H. Obama of Recent Authority (Attachments: # 1 Exhibit (March 20, 2014 FISC Opinion & Order))(Gilligan, James)
26 Minute Entry for proceedings held before Judge B. Lynn Winmill: Motion Hearing held on 5/15/2014 re 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss for Lack of Jurisdiction filed by James B. Comey, Keith B. Alexander, Charles T. Hagel, James R. Clapper, Barack H. Obama, Eric H. Holder, 8 MOTION for Preliminary Injunction filed by Anna Jo Smith. MOTIONS TAKEN UNDER ADVISEMENT. (Court Reporter/ESR Annie Williams.) (lp)
27 MEMORANDUM DECISION. The Court will grant the defendants' motion to dismiss and deny Smith's motion for injunctive relief. The Court will issue a separate Judgment as required by Rule 58(a). Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
28 JUDGMENT. In accordance with the Memorandum Decision filed with this Judgment, NOW THEREFORE IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that the motion for injunction 8 is DENIED. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that the motion to dismiss 14 is GRANTED, and the Clerk is directed to close this case. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
29 NOTICE OF APPEAL as to 28 Judgment, by Anna Jo Smith. Filing fee $ 505, receipt number 0976−1177889. (Notice sent to Court Reporter & 9th Cir) (Smith,

Case 2:13-cv-257 Document <docnum> Filed <datefiled> Page 7 of 7

07/01/2014 07/01/2014 07/01/2014 07/14/2014 05/01/2015 06/03/2015 06/11/2015 07/27/2015 08/04/2015 03/22/2016 03/22/2016
03/22/2016 03/29/2016
04/14/2016
05/17/2016 04/25/2019

Peter)(14−35555)
30 TRANSCRIPT REQUEST by Anna Jo Smith for proceedings held on 5/15/2014 before Judge Winmill, re 29 Notice of Appeal (Notice sent by e−mail to Court Reporter) Transcript due by 9/2/2014. (Smith, Peter)
31 USCA Case Number 14−35555 for 29 Notice of Appeal filed by Anna Jo Smith. (cjm)
32 USCA Scheduling Order as to 29 Notice of Appeal filed by Anna Jo Smith. (Notice sent by e−mail to Court Reporter) (cjm)
33 ORDER of USCA as to 29 Notice of Appeal filed by Anna Jo Smith (jp) (Entered: 07/15/2014)
34 NOTICE of Change of Address by Peter J Smith, IV (Smith, Peter)
35 ORDER of USCA as to 29 Notice of Appeal filed by Anna Jo Smith (jp) (Entered: 06/04/2015)
36 ORDER of USCA as to 29 Notice of Appeal filed by Anna Jo Smith. Anna Smith's motion to amend the schedule for supplemental briefing is DENIED. (jp)
37 ORDER of USCA (14−35555) as to 29 Notice of Appeal filed by Anna Jo Smith. (st) (Entered: 07/28/2015)
38 ORDER of USCA as to 29 Notice of Appeal filed by Anna Jo Smith. The motion to become amicus filed on 7/22/15 is denied. (jp)
39 ORDER of USCA as to 29 Notice of Appeal filed by Anna Jo Smith. this case is resubmitted effective March 15, 2016 (jp) (Entered: 03/23/2016)
40 ORDER of USCA as to 29 Notice of Appeal filed by Anna Jo Smith. Appellant Smith's motion for judicial notice of the fact that Verizon Wireless has participated in the National Security Agencys phone records program is denied as moot. (jp) (Entered: 03/23/2016)
41 ORDER of USCA as to 29 Notice of Appeal filed by Anna Jo Smith. VACATED AND REMANDED. (jp) (cc: LC1) (Entered: 03/23/2016)
42 DOCKET ENTRY NOTICE OF HEARING: A Telephonic Status Conference is set for 4/14/2016 at 10:00 AM (MDT) with Judge B. Lynn Winmill's Law Clerk, Dave Metcalf. Plaintiff is directed to initiate the conference call. The Court can be reached at 208−334−9145. (jlb)
43 DOCKET ENTRY ORDER The Courts staff held a telephone conference with all counsel this day. It was agreed that plaintiff shall notify opposing counsel and the Court (by email to dave_metcalf@id.uscourts.gov) within 14 days as to whether the plaintiff intends to continue to pursue this case. If the plaintiff decides to continue pursuing this case, the Court will hold a conference with counsel to determine the next step in the litigation. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dm)
44 MANDATE of USCA as to 29 Notice of Appeal filed by Anna Jo Smith (jp)
45 NOTICE of Change of Address by James Jordan Gilligan (Gilligan, James)