Case 1:13-cv-03994-WHP Document 1 Filed 06/11/13 Page 1 of 12
v 3994
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORI(

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

Plaintiffs,

v.
JAMES R. CLAPPER, in his official capacity as Director ofNational 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 ROBERTS. MUELLER III, in his official capacity as Director of the Federal Bureau of Investigation,

Case No. _ _ _ __ Hon. _ _ _ _ __

Defendants.

ArthurN. Eisenberg (AE-2012) Christopher T. Dunn (CD-3991) New York Civil Liberties Union
Foundation 125 Broad Street, 19th Floor New York, NY 10004 Phone: (212) 607-3300 Fax: (212) 607-3318 aeisenberg@nyclu.org
Jtme 11, 2013

.Tameel Jaffer (JJ-4653) Alex Abdo (AA-0527) Brett Max Kaufman (BK-2827) Patrick Toomey (PT-1452) Catherine Crump (CC-4067) American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 jjaffer@aclu.org

Case 1:13-cv-03994-WHP Document 1 Filed 06/11/13 Page 2 of 12
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. This lawsuit challenges the government's dragnet acquisition of Plaintiffs' telephone records under Section 215 of the Patriot Act, 50 U.S.C. § 1861.1 In response to information published by the media, the government has aclmowledged that it is relying on Section 215 to collect "metadata" about every phone call made or received by residents of the United States. The practice is akin to snatching evmy American's address book-with annotations detailing whom we spoke to, when we talked, for how long, and from where. It gives the government a comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, political, professional, religious, and intimate associations. 2. 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. ("VBNS") to turn over, every day, metadata about the calls made by each of its subscribers over the three-month period ending on July 19, 2013. Government officials have indicated that the VBNS order is part of a program that has been in place for seven years and that collects records of all telephone communications of eve1y customer of a major phone company, including Verizon, AT&T, and Sprint. 3. Plaintiffs the American Civil Liberties Union and the American Civil Liberties Union Foundation are current VBNS subscribers whose conununications have already been monitored by the government under the VBNS order and whose communications continue to be monitored under that order now. Plaintiffs theNew York Civil Liberties Union and the New York Civil Liberties Union Foundation are former customers of VBNS whose contract of service recently expired but whose telephony metadata likely remains in government databases. The
1 "The Patriot Act" is the common name for the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Tenorism Act of2001, Pub. L. No. 107-56, 115 Stat. 272.
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government's surveillance of their connnunications (hereinafter "Mass Call Tracking") allows the government to learn sensitive and privileged information about their work and clients, and it is likely to have a chilling effect on whistleblowers and others who would otherwise contact Plaintiffs for legal assistance. This surveillance is not authorized by Section 215 and violates the First and Fourth Amendments. Plaintiffs bring this suit to obtain a declaration that the Mass Call Tracking is unlawful; to enjoin the government from continuing the Mass Call Tracking under the VBNS order or any successor thereto; and to require the government to purge from its databases all of the call records related to Plaintiffs' connnunications collected pursuant to the Mass Call Tracking.
JURISDICTION AND VENUE 4. 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 Comt 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. 5. Venue is proper in this district under 28 U.S.C. § 1391(b)(2), (c)(2).
PLAINTIFFS 6. The American Civil Liberties Union ("ACLU") is a 50l(c)(4) non-profit, nonpartisan organization that engages in public education and lobbying about the constitutional principles ofliberly and equality. The ACLU has more than 500,000 members, including members in every state. The ACLU is incorporated in Washington, D.C. and has its principal place of business in New York City.
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7. The American Civil Liberties Union Foundation ("ACLUF") is a 50l(c)(3) organization that educates the public about civil-liberties issues and employs lawyers who provide legal representation free of charge in cases involving civil liberties. It is incorporated in New York State and has its principal place of business in New York City.
8. The New York Civil Liberties Union ("NYCLU") is a 50l(c)(4) non-profit, nonpartisan organization that functions as the ACLU affiliate in New York and that has as its mission the advancement and protection of civil liberties and civil rights. The NYCLU is incorporated in New York and has its principal place of business in New York City.
9. The New York Civil Liberties Union Foundation ("NYCLUF") is a 50l(c)(3) non-profit, non-partisan organization whose mission is to defend civil rights and civil liberties and to preserve and extend constitutionally guaranteed rights to people whose rights have historically been denied. The NYCLUF provides counsel in lawsuits seeking to advance civil liberties and civil rights. It is incorporated in Delaware and has its principal place of business in New York City.
DEFENDANTS
10. Defendant James R. Clapper is the Director of National Intelligence ("DNI"). DNI Clapper has ultimate 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. Lt. Gen. Alexander has ultimate authority for supervising and implementing all operations and functions of the NSA, the agency responsible for conducting surveillance authorized by the challenged law.
12. Defendant Charles T. Hagel is the Secretary of Defense. Secretary Hagel has ultimate authority over the Department of Defense, of which the NSA is a component.
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13. Defendant Eric H. Holder is the Attorney General of the United States. Attorney General Holder has ultimate 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 RobertS. 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 15. In 1978, Congress enacted the Foreign Intelligence Surveillance Act ("FISA") to govern surveillance conducted for foreign-intelligence purposes. The statute created the Foreign Intelligence Surveillance Court ("FISC"), a court composed of seven (now eleven) federal district court judges, and empowered the court to grant or deny govermnent applications for surveillance orders in foreign-intelligence investigations. 16. Congress enacted FISA after years of in-depth congressional investigation by the committees chaired by Senator Frank Church 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 17. Section 215 of the Patriot Act is often referred to as FISA' s "business records" provision. When originally enacted in 1998, this provision permitted the FBI to apply to the FISC for an order to obtain business records of hotels, motels, car and truck rental agencies, and storage rental facilities.
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18. Section 215 broadened this authority by eliminating any limitation on the types of businesses or entities whose records may be seized. In addition, 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)."
19. Section 215 also relaxed the standard that the FBI is required to meet to obtain an order to seize these records. Previously, FISA required the FBI to present to the FISC "specific and articulable facts giving reason to believe that the person to whom the records pertain [was] a foreign power or an agent of a foreign power." In its current form, Section 215 requires only that 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 intemational terrorism or clandestine intelligence activities."
20. Production orders issued under Section 215 are accompauied by gag orders generally forbidding recipients from revealing "that the Federal Bureau oflnvestigation has sought or obtained tangible things." Recipients may challenge gag orders "[n]ot less than 1 year after the date of the issuance of the production order." If a 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."
21. For the past several years, members of Congress have been warning the public that the Executive Branch was exceeding the limits of the Patriot Act. In 2009, Senator Russ Feingold stated during a hearing that "there ... is information about the use of Section 215 orders that I believe Congress and the American people deserve to !mow," adding later that "Section 215 has been misused." In 2011, Senator Ron Wyden declared, "When the American people find out how their government has secretly interpreted the Patriot Act, they will be
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stunned and they will be angry." Similarly, Senator Mark Udall protested that "Americans would be alarmed if they knew how this law is being carried out."
22. On June 5, 2013, The Guardian disclosed that, under Section 215, the NSA has been acquiring the metadata for every phone call made or received by customers ofVBNS "on an ongoing daily basis."
23. Since the disclosure of the VBNS order last week and the government's official acknowledgement of it, the outcry in Congress has increased sharply. Representative Jim Sensenbrenner, an author of the Patriot Act and chairman of the House Judiciary Committee at the time of Section 215's passage, called the Section 215 surveillance program "an abuse of that law." He wrote that, "based on the scope of the released order, both the administration and the FISA court are relying on an unbounded interpretation of the act that Congress never intended."
PLAINTIFFS' ALLEGATIONS 24. Plaintiffs are non-profit organizations that engage in public education, lobbying, and pro bono litigation upholding the civil rights and liberties guaranteed by the Constitution. Collectively, Plaintiffs have more than 500,000 members, including members in every state. Plaintiffs' employees routinely communicate by phone with each other as well as with joumalists, clm·ent and potential clients, legislators and legislative staff, and members of the public. These communications relate to Plaintiffs' advocacy, representation of clients, and efforts to lobby Congress. Plaintiffs' communications are sensitive and often privileged. 25. For example, Plaintiffs frequently place or receive phone calls from individuals relating to potential legal representation in suits against the federal government or state governments. Often, the mere fact that Plaintiffs have communicated with these individuals is sensitive or privileged.
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26. In ongoing litigation, Plaintiffs often c01mnunicate with potential witnesses, informants, or sources who regard the fact of their association or affiliation with Plaintiffs as confidential. Particularly in their work relating to national security, access to reproductive services, racial discrimination, the rights of immigrants, and discrimination based on sexual orientation and gender identity, Plaintiffs' work often depends on their ability to keep even the fact of their discussions with certain individuals confidential.
27. Similarly, Plaintiffs often conununicate with govermnent and industry whistleblowers, lobbyists, journalists, and possible advocacy partners who consider the confidentiality of their associations with Plaintiffs essential to their work.
28. Plaintiffs ACLU and ACLUF are current customers ofVerizon Business Network Services Inc. ("VBNS") and Verizon Wireless. VBNS provides the ACLU's and ACLUF's wired communications, including their landlines m1d intemet c01mection. Verizon Wireless provides their wireless communications, including their mobile phones.
29. PlaintiffNYCLU was a customer ofVBNS until early April2013. Until that time, VBNS provided the NYCLU's wired communications, including their landlines.
30. On June 5, 2013, The Guardian published a FISC order directing VBNS 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 reApplication of the 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 at http://bit.ly/11FY393. The VBNS order was issued on April25, 2013 and expires on July 19, 2013. The order was issued ex parte, and there is no procedure for Plaintiffs to challenge it in the FISC.
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31. In the few days since The Guardian disclosed the VBNS order, government officials have revealed more about the government's surveillance under Section 215. On June 6, Defendant Clapper officially aclmowledged the authenticity of the VBNS order and disclosed details about the broader program supported by the FISC's orders issued under Section 215. Among other things, he stated that: "[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 acquired under the Comi' 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."
32. The following day, President Barack Obama also commented publicly on the Section 215 order. Like Defendant Clapper, the President acknow!edged that the intelligence community is tracking phone numbers and the durations of calls.
33. Members of the congressional intelligence committees have confirmed that the order issued to VBNS was but a single, three-month order in a much broader, seven-year program that the government has relied upon to collect the telephone records of all Americans. Senator Dianne Feinstein has stated that "this is the exact three-month renewal of what has been the case for the past seven years. This renewal is carried out by the [FISC] under the business records section of the Patriot Act." Senator Saxby Chambliss has lilcewise stated that "[t]his has been going on for seven years."
34. News reports since the disclosure of the VBNS order indicate that the mass acquisition of Americans' call details extends beyond customers ofVBNS, encompassing all wireless and landline subscribers of the country's three largest phone companies. See Siobhan Gorman et al., U.S. Collects Vast Data Trove, Wall St. J., June 7, 2013, http://on.wsj .com/11 uDOue ("The arrangement with Verizon, AT&T and Sprint, the country's
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three largest phone companies means, that every time the majority of Americans makes a call, NSA gets a record of the location, the number called, the time of the call and the length of the conversation, according to people familiar with the matter. ... AT&T has I 07.3 million wireless customers and 31.2 million landline customers. Verizon has 98.9 million wireless customers and 22.2 million landline customers while Sprint has 55 million customers in total."); Siobhan Gorman & Jennifer Valentino-DeVries, Government Is Tracking Verizon Customers' Records, Wall St. J., June 6, 2013, http://on.wsj.com/13mLm7c ("The National Security Agency is obtaining a complete set of phone records from all Verizon U.S. customers under a secret court order, according to a published account and former officials.").
35. As customers ofVBNS, Plaintiffs ACLU and ACLUF are covered by the nowpublic order of the FISC requiring VBNS to turn over all of its customers' call recordsincluding all of Plaintiffs' call records---on an ongoing basis. Upon information and belief, PlaintiffNYCLU was covered by a similar order prior to the expiration of their contract with VBNS. Also upon information and belief, Plaintiffs ACLU and ACLUF are covered by a similar order directed to Verizon Wireless. The information collected includes Plaintiffs' nun1bers, the numbers of their contacts, the time and duration of every single call they placed or received, and the location of Plaintiffs and their contacts when talking on mobile phones. This infonnation could readily be used to identify those who contact Plaintiffs for legal assistance or to repmi human-rights or civil-liberties violations, as well as those whom Plaintiffs contact in connection with their work The fact that the government is collecting this information is likely to have a chilling effect on people who would otherwise contact Plaintiffs.
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CAUSES OF ACTION 36. The Mass Call Tracking exceeds the authority granted by 50 U.S.C. § 1861, and thereby violates 5 U.S.C. § 706. 37. The Mass Call Tracking violates the First Amendment to the Constitution. 38. 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 Plaintiffs' 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 to the Constitution; 4. Permanently enjoin Defendants from continuing the Mass Call Tracking under the VBNS order or any successor thereto; 5. Order Defendants to purge from their possession all of the call records of Plaintiffs' communications in their possession collected pursuant to the Mass Call Tracking; 6. Award Plaintiff fees and costs pursuant to 28 U.S.C. § 2412;

ArthurN. Eisenberg (AE-2012) Christopher T. Dunn (CD-3991) New York Civil Liberties Union
Foundation 125 Broad Street, 19th Floor New York, NY 10004 Phone: (212) 607-3300

J

a r (JJ-4653)

Alex Abdo (AA-0527)

Brett Max Kaufman (BK-2827)

Patrick Toomey (PT-1452)

Catherine Crump (CC-4067)

American Civil Liberties Union

Foundation

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Fax: (212) 607-3318 aeisenberg@nyclu.org
June 11, 2013

125 Broad Street, 18th Floor New Yorlc, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 jj affer@aclu.org

11

 
 Case 1:13-cv-03994-WHP Document 25 Filed 08/26/13 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

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

NOTICE OF MOTION FOR A PRELIMINARY INJUNCTION
No. 13-cv-03994 (WHP) ECF CASE

PLAINTIFFS’ NOTICE OF MOTION FOR A PRELIMINARY INJUNCTION Upon pleadings and papers in this matter, Plaintiffs now move this Court before the Honorable William H. Pauley III, United States District Court Judge, at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York, for a preliminary injunction against the Defendants, their agents, servants, employees, officials, or any other person acting in concert with them or on their behalf, pursuant to Rule 65 of the Federal Rules of Civil Procedure.

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In particular, Plaintiffs move this Court for a preliminary injunction that, during the pendency of this suit, (i) bars Defendants from collecting Plaintiffs’ call records under the mass call-tracking program, (ii) requires Defendants to quarantine all of Plaintiffs’ call records already collected under the program, and (iii) prohibits Defendants from querying metadata obtained through the program using any phone number or other identifier associated with Plaintiffs.
As set forth in the accompanying memorandum of law and declarations in support of this motion, and in the Complaint, Plaintiffs meet all of the requirements for the issuance of a preliminary injunction. Specifically, Plaintiffs submit:
1. Declaration of Professor Edward W. Felten, and the exhibit attached thereto; 2. Declaration of Steven R. Shapiro; 3. Declaration of Christopher Dunn; 4. Declaration of Michael German; 5. Declaration of Patrick C. Toomey, and the exhibits attached thereto; 6. Plaintiffs’ Memorandum of Law. The Court has scheduled oral argument at 12:00 p.m. on November 1, 2013. Plaintiffs respectfully request that this Court issue the preliminary injunction sought by the Plaintiffs pending a final resolution of the merits of the case.
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Christopher T. Dunn (CD-3991) Arthur N. Eisenberg (AE-2012) New York Civil Liberties Union
Foundation 125 Broad Street, 19th Floor New York, NY 10004 Phone: (212) 607-3300 Fax: (212) 607-3318 aeisenberg@nyclu.org
August 26, 2013

Respectfully submitted,
/s/ Jameel Jaffer Jameel Jaffer (JJ-4653) Alex Abdo (AA-0527) Brett Max Kaufman (BK-2827) Patrick Toomey (PT-1452) Catherine Crump (CC-4067) American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 jjaffer@aclu.org

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CERTIFICATE OF SERVICE I, Jameel Jaffer, certify that on August 26, 2013, I served the foregoing Motion for a Preliminary Injunction and accompanying papers upon Defendants, by operation of the Court’s electronic filing system:

August 26, 2013

/s/ Jameel Jaffer Jameel Jaffer

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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

No. 13-cv-03994 (WHP) ECF CASE

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii Introduction..................................................................................................................................... 1 Legal and Factual Background ....................................................................................................... 2
I. The Foreign Intelligence Surveillance Act ......................................................................... 2 II. The Mass Call-Tracking Program....................................................................................... 5 III. Collection of Plaintiffs’ Call Records................................................................................. 7 ARGUMENT .................................................................................................................................. 8 I. Plaintiffs are likely to succeed on the merits. ..................................................................... 8
A. The government’s long-term recording and aggregation of Plaintiffs’ telephony metadata is not authorized by statute. ............................................................ 8
B. The government’s long-term recording and aggregation of Plaintiffs’ telephony metadata violates the Fourth Amendment.................................................... 16
1. The government’s long-term recording and aggregation of telephony metadata constitutes a search under the Fourth Amendment. ................................... 16
2. The government’s long-term recording and aggregation of telephony metadata is unreasonable. .......................................................................................... 23
i. The mass call-tracking program involves warrantless searches, which are per se unreasonable. ............................................................................. 23
ii. The government’s long-term recording and aggregation of telephony metadata is unreasonable...................................................................... 24
C. The government’s long-term recording and aggregation of Plaintiffs’ telephony metadata violates the First Amendment. ...................................................... 29
1. Courts apply “exacting scrutiny” to investigative practices that significantly burden First Amendment rights. ........................................................... 29
2. The mass call-tracking program substantially burdens Plaintiffs’ First Amendment rights. .................................................................................................... 31
3. The mass call-tracking program fails “exacting scrutiny” because it is an unduly broad means of seeking foreign-intelligence information. ....................... 34
II. Plaintiffs will suffer irreparable injury if preliminary relief is withheld. ......................... 36 CONCLUSION............................................................................................................................. 39
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TABLE OF AUTHORITIES Cases al Kidd v. Gonzales, No. 1:05-CV-093-EJL-MHW, 2012 WL 4470776 (D. Idaho
Sept. 27, 2012) ............................................................................................................................ 8 Bates v. City of Little Rock, 361 U.S. 516 (1960) ................................................................... 30, 32 BedRoc Ltd. v. United States, 541 U.S. 176 (2004)...................................................................... 16 Berger v. New York, 388 U.S. 41 (1967) ............................................................................... passim Bond v. United States, 529 U.S. 334 (2000) ................................................................................. 23 Bowman Dairy Co. v. United States, 341 U.S. 214 (1951) .......................................................... 11 Bray v. City of N.Y., 346 F. Supp. 2d 480 (S.D.N.Y. 2004) (Pauley, J.) ...................................... 37 Brigham City v. Stuart, 547 U.S. 398 (2006)................................................................................ 24 Bronx Household of Faith v. Bd. of Educ. of City of N.Y., 331 F.3d 342 (2d Cir.
2003) ......................................................................................................................................... 37 Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972) ............................................................... 36 Cessante v. City of Pontiac, No. CIV. A. 07-CV-15250, 2009 WL 973339 (E.D.
Mich. Apr. 9, 2009) .................................................................................................................. 12 Chandler v. Miller, 520 U.S. 305 (1997) ...................................................................................... 27 Cheney v. U.S. Dist. Court, 542 U.S. 367 (2004) ......................................................................... 11 Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598
F.3d 30 (2d Cir. 2010) ................................................................................................................ 8 Clark v. Library of Cong., 750 F.2d 89 (D.C. Cir. 1984) ................................................. 29, 30, 34 Clark v. Martinez, 543 U.S. 371 (2005) ....................................................................................... 16 Covino v. Patrissi, 967 F.2d 73 (2d Cir. 1992)............................................................................. 37 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) ........................................................ 10 Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328 (5th Cir. 1981) ............................ 38 Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004)................................................................ 31 Ealy v. Littlejohn, 569 F.2d 219 (5th Cir. 1978)..................................................................... 12, 30
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Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568 (1988).................................................................................................................. 16
Elrod v. Burns, 427 U.S. 347 (1976) ............................................................................................ 30 FEC v. Larouche Campaign, Inc., 817 F.2d 233 (2d Cir. 1987) .................................................. 31 Ferguson v. City of Charleston, 532 U.S. 67 (2001) .................................................................... 23 Florida v. Jardines, 133 S. Ct. 1409 (2013) ................................................................................. 23 Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539 (1963) .................................. 31, 32 Groh v. Ramirez, 540 U.S. 551 (2004) ........................................................................................... 8 Hale v. Henkel, 201 U.S. 43 (1906) .............................................................................................. 12 Hirschfeld v. Stone, 193 F.R.D. 175 (S.D.N.Y. 2000) (Pauley, J.)............................................... 37 Illinois v. Lidster, 540 U.S. 419 (2004) ........................................................................................ 24 In re Application for Pen Register & Trap/Trace Device with Cell Site Location
Auth., 396 F. Supp. 2d 747 (S.D. Tex. 2005) ........................................................................... 15 In re Application of the U.S. for an Order Authorizing the Disclosure of Cell Site
Location Info., No. 6:08-6038M-REW, 2009 WL 8231744 (E.D. Ky. Apr. 17, 2009) ......................................................................................................................................... 15 In re Fontaine, 402 F. Supp. 1219 (E.D.N.Y. 1975) .................................................................... 13 In re Grand Jury Proceedings, 486 F.2d 85 (3d Cir. 1973) ......................................................... 13 In re Grand Jury Proceedings, 776 F.2d 1099 (2d Cir. 1985) ............................................... 29, 34 In re Grand Jury Proceedings, 863 F.2d 667 (9th Cir. 1988) ...................................................... 36 In re Grand Jury Subpoena Duces Tecum Dated Nov. 15, 1993, 846 F. Supp. 11 (S.D.N.Y. 1994) ........................................................................................................................ 12 In re Grand Jury Subpoena, 701 F.2d 115 (10th Cir. 1983) .................................................. 34, 36 In re Horowitz, 482 F.2d 72 (2d Cir. 1973) ............................................................................ 11, 12 In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002) ......................................................... 27, 28 In re Six Grand Jury Witnesses, 979 F.2d 939 (2d Cir. 1992)...................................................... 11 In re Stoltz, 315 F.3d 80 (2d Cir. 2002) ........................................................................................ 14
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Katz v. United States, 389 U.S. 347 (1967) .................................................................................. 23 Kyllo v. United States, 533 U.S. 27 (2001) ............................................................................. 17, 23 Lamont v. Postmaster Gen., 381 U.S. 301 (1965) ........................................................................ 33 Ligon v. City of N.Y., No. 12 Civ. 2274, 2013 WL 628534 (S.D.N.Y. Feb. 14,
2013) ......................................................................................................................................... 37 Local 1814, Int’l Longshoremen’s Ass’n v. Waterfront Comm’n of N.Y. Harbor,
667 F.2d 267 (2d Cir. 1981) ................................................................................... 30, 31, 33, 36 Marcus v. Search Warrants, 367 U.S. 717 (1961)........................................................................ 30 Mastrovincenzo v. City of N.Y., 435 F.3d 78 (2d Cir. 2006)........................................................... 8 McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995).................................................... 31, 33 Mitchell v. Cuomo, 748 F.2d 804 (2d Cir. 1984) .......................................................................... 37 Mullins v. City of N.Y., 634 F. Supp. 2d 373 (S.D.N.Y. 2009) ..................................................... 39 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) ............................................ 31, 32, 34 Nat’l Commodity & Barter Ass’n v. Archer, 31 F.3d 1521 (10th Cir. 1994) ............................... 29 Paton v. La Prade, 469 F. Supp. 773 (D.N.J. 1978)..................................................................... 31 Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989)............................. 34 Public Serv. Co. of N.H. v. Town of W. Newbury, 835 F.2d 380 (1st Cir. 1987) ......................... 37 Resolution Trust Corp. v. Dabney, 73 F.3d 262 (10th Cir. 1995) ................................................ 11 Samson v. California, 547 U.S. 843 (2006) .................................................................................. 24 Slevin v. City of N.Y., 477 F. Supp. 1051 (S.D.N.Y. 1979) .......................................................... 38 Smith v. Maryland, 442 U.S. 735 (1979) ...................................................................................... 21 Stanford v. Texas, 379 U.S. 476 (1965) .......................................................................................... 2 Statharos v. N.Y. City Taxi & Limousine Comm’n, 198 F.3d 317 (2d Cir. 1999) ........................ 37 Tabbaa v. Chertoff, 509 F.3d 89 (2d Cir. 2007) ........................................................................... 30 Talley v. California, 362 U.S. 60 (1960) ...................................................................................... 33 United States v. Abu Jihaad, 630 F.3d 102 (2d Cir. 2010) ............................................................. 8
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United States v. Bobo, 477 F.2d 974 (4th Cir. 1973).............................................................. 25, 28 United States v. Cafero, 473 F.2d 489 (3d Cir. 1973) ............................................................ 27, 28 United States v. Cavanagh, 807 F.2d 787 (9th Cir. 1987)............................................................ 27 United States v. Citizens Bank, 612 F.2d 1091 (8th Cir. 1980) .................................................... 36 United States v. Clark, 638 F.3d 89 (2d Cir. 2011) ........................................................................ 8 United States v. Duggan, 743 F.2d 59 (2d Cir. 1984) .................................................................. 27 United States v. Gordon, 236 F.2d 916 (2d Cir. 1956)........................................................... 17, 28 United States v. Head, 416 F. Supp. 840 (S.D.N.Y. 1976)........................................................... 38 United States v. Jones, 132 S. Ct. 945 (2012)........................................................................ passim United States v. Karo, 468 U.S. 705 (1984) ................................................................................. 23 United States v. Knotts, 460 U.S. 276 (1983) ............................................................................... 22 United States v. Menasche, 348 U.S. 528 (1955) ......................................................................... 10 United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987)................................................................ 27 United States v. Powell, 379 U.S. 48 (1964) .................................................................... 11, 13, 30 United States v. R. Enters., Inc., 498 U.S. 292 (1991).................................................................. 10 United States v. Rahman, 861 F. Supp. 247 (S.D.N.Y. 1994) ........................................................ 8 United States v. Tortorello, 480 F.2d 764 (2d Cir. 1973) ....................................................... 27, 28 United States v. U.S. Dist. Court (Keith), 407 U.S. 297 (1972) ................................... 2, 21, 26, 29 United States v. Westinghouse Elec. Corp., 788 F.2d 164 (3d Cir. 1986).................................... 11 Virginia v. Moore, 553 U.S. 164 (2008) ....................................................................................... 25 Zurcher v. Stanford Daily, 436 U.S. 547 (1978) .......................................................................... 30 Statutes 18 U.S.C. § 2709........................................................................................................................... 35 18 U.S.C. § 3122........................................................................................................................... 35 18 U.S.C. § 3125........................................................................................................................... 35
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50 U.S.C. § 1803............................................................................................................................. 3 50 U.S.C. § 1806............................................................................................................................. 8 50 U.S.C. § 1842..................................................................................................................... 14, 35 50 U.S.C. § 1861.................................................................................................................... passim 50 U.S.C. § 1861 (2000 ed.) ........................................................................................................... 3 50 U.S.C. § 1862 (2000 ed.) ........................................................................................................... 3 Intelligence Authorization Act for Fiscal Year 2002, Pub. L. 107-108 (2001) .............................. 3 Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56.................................................. 3 USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. 109-177
(2006).......................................................................................................................................... 3 Other Authorities 157 Cong. Rec. S3386 (daily ed. May 26, 2011)............................................................................ 4 157 Cong. Rec. S3389 (daily ed. May 26, 2011)............................................................................ 4 Administration White Paper: Bulk Collection of Telephony Metadata Under
Section 215 of the USA PATRIOT Act (Aug. 9, 2013) (“White Paper”) ........................... passim Dep’t of Justice, Report on the National Security Agency’s Bulk Collection
Programs for USA PATRIOT Act Reauthorization (Feb. 2, 2011)......................................... 6, 7 Dep’t of Justice, USA PATRIOT Act: Myth vs. Reality, http://1.usa.gov/14nej54 ....................... 13 Edith Ramirez, Chairwoman, Fed. Trade Comm’n, Keynote Address at the
Technology Policy Institute Aspen Forum (Aug. 19, 2013)..................................................... 21 Ellen Nakashima & Joby Warrick, For NSA Chief, Terrorist Threat Drives
Passion to ‘Collect It All,’ Observers Say, Wash. Post, July 14, 2013 .................................... 28 Ellen Nakashima, Call Records of Fewer Than 300 People Were Searched in
2012, U.S. Says, Wash. Post, June 15, 2013............................................................................. 34 Frank Newport, Americans Disapprove of Government Surveillance Programs,
Gallup Politics, June 12, 2013 .................................................................................................. 17 George Orwell, Freedom and Happiness, Tribune, Jan. 4, 1946 ................................................. 17
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Jennifer Valentino-Devries & Siobhan Gorman, Secret Court’s Redefinition of ‘Relevant’ Empowered Vast NSA Data-Gathering, Wall St. J., July 8, 2013 .......................... 24
Letter from Peter J. Kadzik, Principal Deputy Assistant Att’y Gen., Dep’t of Justice, to Rep. F. James Sensenbrenner, Jr. (July 16, 2013) ................................................... 10
Memorandum Opinion, [Title Redacted], No. 11 BR [Dkt. No. Redacted] (FISA Ct. Oct. 3, 2011) (Bates, J.) ...................................................................................................... 15
Morgan Cloud, Searching Through History; Searching For History, 63 U. Chi. L. Rev. 1707 (1996) ...................................................................................................................... 23
Neil M. Richards, The Dangers of Surveillance, 126 Harv. L. Rev. 1934 (2013) ....................... 17
Office of the Dir. of Nat’l Intelligence, DNI Statement on Recent Unauthorized Disclosures of Classified Information (June 6, 2013) ................................................................ 5
Office of the Dir. of Nat’l Intelligence, Foreign Intelligence Surveillance Court Renews Authority to Collect Telephony Metadata (July 19, 2013) ............................................ 5
Oversight of the Administration’s Use of FISA Authorities: Hearing Before the H. Comm. on the Judiciary, 113th Cong. (July 17, 2013) (“HJC Hearing”)....................... 9, 12, 14
Oxford American Dictionary (3d ed. 2010) .................................................................................... 9
Pew Research, Few See Adequate Limits on NSA Surveillance Program, July 26, 2013 .......................................................................................................................................... 17
Press Release, Office of Sen. Ron Wyden, Wyden Statement on Alleged LargeScale Collection of Phone Records, June 6, 2013 .................................................................... 17
Press Release, Office of Sen. Ron Wyden, Wyden, Udall Question the Value and Efficacy of Phone Records Collection in Stopping Attacks, June 7, 2013................................ 35
Primary Order, In re Application of the FBI for an Order Requiring the Production of Tangible Things from [Redacted], No. BR 13-80 (FISA Ct. Apr. 25, 2013) (“Primary Order”)....................................................................................................... 6
Rep. Jim Sensenbrenner, How Secrecy Erodes Democracy, Politico, July 22, 2013 ..................... 9
S. Rep. No. 95-604 (1977), reprinted in 1978 U.S.C.C.A.N. 3904................................................ 3
Secondary Order, In re Application of the FBI for an Order Requiring the Production of Tangible Things from Verizon Bus. Network Servs., Inc. on Behalf of MCI Commc’n Servs., Inc. d/b/a Verizon Bus. Servs., No. BR 13-80 (FISA Ct. Apr. 25, 2013) (“Secondary Order”).............................................................. 5, 6, 7, 8
Siobhan Gorman & Julian E. Barnes, Officials: NSA Doesn’t Collect CellphoneLocation Records, Wall St. J., June 16, 2013 ............................................................................. 7 vii

Case 1:13-cv-03994-WHP Document 26 Filed 08/26/13 Page 9 of 48 The Lives of Others (Sony Pictures Classics 2006) ...................................................................... 17 Webster’s Collegiate Dictionary (11th ed. 2012) ........................................................................... 9 Rules Fed. R. Crim. P. 17(c) ................................................................................................................... 35 FISC R. P. 17 .................................................................................................................................. 3 FISC R. P. 62 .................................................................................................................................. 3
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Introduction The National Security Agency (“NSA”) has for seven years kept a record of every phone call made or received in the United States. The surveillance is ongoing. Each time a resident of the United States makes a phone call, the NSA records whom she called, when the call was placed, and how long the conversation lasted. The NSA keeps track of when she called the doctor, and which doctor she called; which family members she called, and which she didn’t; which pastor she called, and for how long she spoke to him. It keeps track of whether, how often, and precisely when she called the abortion clinic, the support group for alcoholics, the psychiatrist, the ex-girlfriend, the criminal-defense lawyer, the fortune teller, the suicide hotline, the child-services agency, and the shelter for victims of domestic violence. The NSA keeps track of the same information for each of her contacts, and for each of their contacts. The data collected under the program supplies the NSA with a rich profile of every citizen as well as a comprehensive record of citizens’ associations with one another. Plaintiffs are civil-liberties organizations whose communications are particularly sensitive. Plaintiffs’ employees routinely talk by phone with clients and potential clients about legal representation in suits against the government. Often, even the mere fact that Plaintiffs have communicated with these individuals is sensitive or confidential. Plaintiffs regularly receive calls from, among others, prospective whistleblowers seeking legal counsel and government employees who fear reprisal for their political views. The NSA has acknowledged that it is tracking all of these calls. This surveillance invades Plaintiffs’ privacy, threatens to dissuade potential clients and others from contacting them, and compromises their ability to serve their clients’ interests and their institutional missions. Plaintiffs filed suit on June 11, 2013, contending that the NSA’s ongoing tracking of their phone calls exceeds statutory authority and violates the First and Fourth Amendments. They
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seek, among other things, an injunction permanently enjoining the mass call-tracking program and requiring the government to purge from its possession all of Plaintiffs’ call records already collected. Plaintiffs now move this Court for a preliminary injunction that, during the pendency of this suit, (i) bars the government from collecting their call records under the program, (ii) requires the government to quarantine all of their call records already collected under the program, and (iii) prohibits the government from querying metadata obtained through the program using any phone number or other identifier associated with them.
Plaintiffs will suffer irreparable injury if preliminary relief is not granted, and they are substantially likely to succeed on the merits of their claims. The mass call-tracking program is ostensibly based on Section 215 of the Patriot Act but the program disregards that provision’s core requirements, including its “relevance” requirement. The program violates the Fourth Amendment because the surveillance carried out is warrantless and unreasonable, and it violates the First Amendment because it substantially and unjustifiably burdens Plaintiffs’ associational rights when more narrow methods could be used to achieve the government’s ends. Indeed, the mass call-tracking program is perhaps the largest surveillance operation ever carried out by a democratic government against its own citizens. Preliminary relief is appropriate and necessary. Cf. Stanford v. Texas, 379 U.S. 476, 483 (1965) (citing eighteenth-century decision overturning a “ridiculous warrant against the whole English nation”).
Legal and Factual Background I. The Foreign Intelligence Surveillance Act
In 1978, Congress enacted the Foreign Intelligence Surveillance Act (“FISA”) to regulate government surveillance conducted for foreign-intelligence purposes. Congress adopted FISA after the Supreme Court held, in United States v. U.S. District Court (Keith), 407 U.S. 297 (1972), that the Fourth Amendment does not permit warrantless surveillance in intelligence
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investigations of domestic security threats. FISA was a response to that decision and to years of in-depth congressional investigation that revealed that the executive branch had engaged in widespread warrantless surveillance of U.S. citizens—including journalists, activists, and members of Congress—“who engaged in no criminal activity and who posed no genuine threat to the national security.” S. Rep. No. 95-604, pt.1, at 8 (1977), reprinted in 1978 U.S.C.C.A.N. 3904, 3909 (quotation marks omitted).
In enacting FISA, Congress created the Foreign Intelligence Surveillance Court (“FISC”) and empowered it to grant or deny government applications for surveillance orders in foreignintelligence investigations. See 50 U.S.C. § 1803(a). The FISC meets in secret, generally hears argument only from the government, and rarely publishes its decisions. See, e.g., FISC R. P. 17(b), 62, http://www.uscourts.gov/uscourts/rules/FISC2010.pdf.
The provision at issue in this case was originally added to FISA in 1998. See 50 U.S.C. §§ 1861–1862 (2000 ed.). In its original form, it permitted the government to compel the production of certain records in foreign-intelligence or international-terrorism investigations from common carriers, public-accommodation facilities, storage facilities, and vehicle rental facilities. Id. § 1862 (2000 ed.). The government was required to include in its application to the FISC “specific and articulable facts giving reason to believe that the person to whom the records pertain[ed] [was] a foreign power or an agent of a foreign power.” Id.
The Patriot Act and several successor bills modified that provision in several respects.1 In its current form, the statute—commonly referred to as Section 215—allows the government to
1 The “Patriot Act” is the name customarily used to refer to the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56. See also Intelligence Authorization Act for Fiscal Year 2002, Pub. L. 107108 (2001); USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. 109-177 (2006).
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obtain an order requiring the production of “any tangible things” upon a “showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) . . . to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” Id. § 1861(b)(2)(A). The provision deems certain kinds of tangible things “presumptively relevant.”2
While the amendments to this provision expanded the government’s investigative power, this expansion was not without limits. Language added by the Patriot Act prohibits the government from using the provision to obtain tangible things that could not be obtained through analogous mechanisms. It states: “An order under this subsection . . . may only require the production of a tangible thing if such thing can be obtained with a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation or with any other order issued by a court of the United States directing the production of records or tangible things.” Id. § 1861(c)(2)(D).
Until recently, the public knew little about the government’s use of Section 215. In 2011, Senators Ron Wyden and Mark Udall, both of whom sit on the Senate Select Committee on Intelligence, stated publicly that the government had adopted a “secret interpretation” of Section 215, and predicted that Americans would be “stunned,” “angry,” and “alarmed” when they learned of it.3 Their efforts to make more information available to the public, however, were
2 See 50 U.S.C. § 1861(b)(2)(A) (deeming tangible things “presumptively relevant to an authorized investigation” if they pertain to “a foreign power or an agent of a foreign power”; “the activities of a suspected agent of a foreign power who is the subject of such authorized investigation”; or “an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation”).
3 157 Cong. Rec. S3386 (daily ed. May 26, 2011) (statement of Sen. Ron Wyden); 157 Cong. Rec. S3389 (daily ed. May 26, 2011) (statement of Sen. Mark Udall).
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largely unsuccessful, as were parallel efforts by Plaintiffs and others under the Freedom of Information Act. Ordinary citizens who wanted to understand the government’s surveillance policies were entirely reliant on the government’s own statements about them, and those statements were sometimes misleading or false. See, e.g., Glen Kessler, James Clapper’s “Least Untruthful” Statement to the Senate, Wash. Post, June 12, 2013, http://wapo.st/170VVSu (discussing statement by the Director of National Intelligence indicating, falsely, that government was not collecting information about millions of Americans). II. The Mass Call-Tracking Program
On June 5, 2013, The Guardian disclosed a previously secret FISC order, labeled a “Secondary Order,” directing Verizon Business Network Services (“Verizon”) to produce to the NSA “on an ongoing daily basis . . . all call detail records or ‘telephony metadata’” relating to every domestic and international call placed on its network between April 25, 2013 and July 19, 2013.4 The Secondary Order specified that telephony metadata includes, for each phone call, the originating and terminating telephone number as well as the call’s time and duration. Secondary Order at 2. On the day the Secondary Order expired, the Director of National Intelligence issued a statement indicating that the FISC had renewed it. Office of the Dir. of Nat’l Intelligence, Foreign Intelligence Surveillance Court Renews Authority to Collect Telephony Metadata (July 19, 2013), http://1.usa.gov/12ThYlT.
4 Toomey Decl. Ex. 2 (Secondary Order at 2, In re Application of the FBI for an Order Requiring the Production of Tangible Things from Verizon Bus. Network Servs., Inc. on Behalf of MCI Commc’n Servs., Inc. d/b/a Verizon Bus. Servs., No. BR 13-80 (FISA Ct. Apr. 25, 2013)) (“Secondary Order”). In the days after The Guardian disclosed the Secondary Order, Defendant Clapper acknowledged its authenticity. See Office of the Dir. of Nat’l Intelligence, DNI Statement on Recent Unauthorized Disclosures of Classified Information (June 6, 2013), http://1.usa.gov/13jwuFc.
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The government has disclosed that the Secondary Order was issued as part of a broader program that has been in place for seven years and that involves the collection of information about virtually every phone call, domestic and international, made or received in the United States. Administration White Paper: Bulk Collection of Telephony Metadata Under Section 215 of the USA PATRIOT Act 1 (Aug. 9, 2013), http://bit.ly/15ebL9k (“White Paper”); Dep’t of Justice, Report on the National Security Agency’s Bulk Collection Programs for USA PATRIOT Act Reauthorization 3 (Feb. 2, 2011), http://1.usa.gov/1cdFJ1G. The Secondary Order to Verizon was issued pursuant to a “Primary Order” that the government has now released and that sets out procedures the NSA must follow to “query” telephony metadata collected under the Secondary Order.5
The Primary Order and the administration’s White Paper explain how the government analyzes and disseminates information housed in the massive database assembled by the calltracking program. Specifically, the documents indicate that the NSA is permitted to query this database when a “designated approving official” at the NSA determines that “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 7.6 The NSA is permitted to review not just telephony metadata pertaining to the NSA’s specific target but also telephony metadata pertaining to individuals as many as three degrees removed from that target:
5 Toomey Decl. Ex. 1 (Primary Order at 3, 6–11, In re Application of the FBI for an Order Requiring the Production of Tangible Things from [Redacted], No. BR 13-80 (FISA Ct. Apr. 25, 2013)) (“Primary Order”).
6 The government has acknowledged that the NSA has violated the Primary Order’s restrictions on multiple occasions. White Paper at 5 (“Since the telephony metadata collection program under Section 215 was initiated, there have been a number of significant compliance and implementation issues that were discovered as a result of DOJ and ODNI reviews and internal NSA oversight.”).
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Under the FISC’s order, the NSA may also obtain information concerning second and third-tier contacts of the identifier (also referred to as “hops”). The first “hop” refers to the set of numbers directly in contact with the seed identifier. The second “hop” refers to the set of numbers found to be in direct contact with the first “hop” numbers, and the third “hop” refers to the set of numbers found to be in direct contact with the second “hop” numbers. White Paper at 3–4. Even assuming, conservatively, that each person communicates by telephone with forty different people, an analyst who accessed the records of everyone within three hops of an initial target would have accessed records concerning more than two million people. The government has disclosed that the NSA conducted queries on approximately 300 selectors in 2012 alone. White Paper at 4. III. Collection of Plaintiffs’ Call Records Plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation (together, “ACLU”) are current customers of Verizon, which provides their wired communications service, including their landlines and internet connection. Shapiro Decl. ¶ 6. Until early April, Plaintiffs New York Civil Liberties Union and New York Civil Liberties Union Foundation (together, “NYCLU”) were also customers of Verizon. Dunn Decl. ¶ 7. As current and former Verizon customers, Plaintiffs have had their telephony metadata collected in bulk pursuant to the Secondary Order and its predecessors. The NSA stores information collected under the program for five years.7 Its collection of Plaintiffs’ telephony metadata continues “on an ongoing daily basis.” Secondary Order at 2.
7 See Dep’t of Justice, Report on the National Security Agency’s Bulk Collection Programs for USA PATRIOT Act Reauthorization 4 (Feb. 2, 2011), http://1.usa.gov/1cdFJ1G; Siobhan Gorman & Julian E. Barnes, Officials: NSA Doesn’t Collect Cellphone-Location Records, Wall St. J., June 16, 2013, http://on.wsj.com/13MnSsp.
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ARGUMENT To justify entry of preliminary relief, Plaintiffs must show, first, that they are more likely
than not to succeed on the merits of their claims at trial or on summary judgment; and, second,
that they are likely to suffer “irreparable injury” if preliminary relief is not granted. Citigroup
Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir.
2010). For the following reasons, preliminary relief is warranted here. Indeed, preliminary relief
is warranted here even if Plaintiffs’ motion is characterized as one that seeks “mandatory” relief.
See Mastrovincenzo v. City of N.Y., 435 F.3d 78, 89 (2d Cir. 2006) (noting that applicant for mandatory preliminary injunction must show “substantial likelihood” of prevailing).8
I. Plaintiffs are likely to succeed on the merits. A. The government’s long-term recording and aggregation of Plaintiffs’ telephony metadata is not authorized by statute. Section 215 allows the government to compel the production of tangible things if there
are “reasonable grounds to believe that [they] are relevant to an authorized investigation.” 50
U.S.C. § 1861(b)(2)(A). The mass call-tracking program goes far beyond this authority. First, the
notion that detailed information about every phone call made by a resident of the United States
over a seven-year period could be “relevant to an authorized investigation” finds no support in
8 At the pre-motion conference, the Court requested that Plaintiffs address the Court’s authority to review an order issued by a coordinate court. Plaintiffs do not believe that this case is properly characterized as a challenge to an order of a coordinate court. Plaintiffs are not seeking review of the Secondary Order; they are challenging the ongoing conduct of executive agencies. In any event, district courts review the lawfulness of FISC orders in the context of criminal prosecutions. See 50 U.S.C. § 1806(f); see e.g., United States v. Abu Jihaad, 630 F.3d 102 (2d Cir. 2010); United States v. Rahman, 861 F. Supp. 247 (S.D.N.Y. 1994). More generally, courts often examine the legality of search or arrest warrants issued or approved by coordinate courts. See Groh v. Ramirez, 540 U.S. 551 (2004) (Bivens action); United States v. Clark, 638 F.3d 89 (2d Cir. 2011) (motion to suppress); al Kidd v. Gonzales, No. 1:05-CV-093-EJL-MHW, 2012 WL 4470776 (D. Idaho Sept. 27, 2012) (Malley claim). Even if this case is framed as one requesting review of the Secondary Order, the Court has ample authority to do so.
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precedent or common sense. The program assigns “relevance” either a strained and altogether novel meaning—one that no court has previously accepted—or no meaning at all. Second, the program impermissibly transforms a statutory provision that was meant to permit the collection of existing records into one that permits the ongoing collection of records not yet in existence. This contravenes the text of Section 215 and makes nonsense of the larger statutory scheme. Third, the program replaces judicial supervision over the acquisition of information with executive discretion over the later use of information. The mass call-tracking program is the product of statutory alchemy; there is simply no way to justify it without rewriting the statute altogether.9
The billions of call records acquired under the mass call-tracking program every day are not “relevant to an authorized investigation” in any conventional sense of that phrase. In ordinary usage, one thing is said to be relevant to another if there is a demonstrably close connection between them. See Oxford American Dictionary 1474 (3d ed. 2010) (“the state of being closely connected or appropriate to the matter in hand”); Webster’s Collegiate Dictionary 1051 (11th ed. 2012) (“having significant and demonstrable bearing on the matter at hand”). And, as discussed below, courts have consistently applied that ordinary meaning to require that records demanded
9 Many Members of Congress have noted as much. See, e.g., Rep. Jim Sensenbrenner, How Secrecy Erodes Democracy, Politico, July 22, 2013, http://politi.co/1baupnm (op-ed by original sponsor of Patriot Act) (“This expansive characterization of relevance makes a mockery of the legal standard. According to the administration, everything is relevant provided something is relevant. Congress intended the standard to mean what it says: The records requested must be reasonably believed to be associated with international terrorism or spying. To argue otherwise renders the standard meaningless.”); Oversight of the Administration’s Use of FISA Authorities: Hearing Before the H. Comm. on the Judiciary, 113th Cong. at 1h:19m:40s (July 17, 2013), http://1.usa.gov/131CkgJ (“HJC Hearing”) (statement of Rep. Jerrold Nadler, Member, H. Comm. on the Judiciary) (“If we removed that word from the statute, [the government] wouldn’t consider . . . that it would affect [its] ability to collect meta-data in any way whatsoever—which is to say [it’s] disregarding the statute entirely.”).
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by the government—through, for example, grand-jury subpoenas—bear an actual connection to a particular investigation.
The core problem with the government’s approach to “relevance” is that the government cannot possibly tie the bulk collection of Americans’ call records to a specific investigation, as the statute requires. Indeed, the government has conceded that few of the records collected under the mass call-tracking program have any connection to any investigation. See, e.g., Letter from Peter J. Kadzik, Principal Deputy Assistant Att’y Gen., Dep’t of Justice, to Rep. F. James Sensenbrenner, Jr. 2 (July 16, 2013), http://1.usa.gov/12GN8kW (conceding that “most of the records in the dataset are not associated with terrorist activity”). Most of the records swept up by the program—in fact, almost all of them—are what would ordinarily be called “irrelevant.”
Thus, the program guts the concept of relevance of its usual meaning—indeed, of any meaning. Section 215 requires the government to distinguish relevant records from irrelevant ones, but the program relies on collapsing the two categories. It renders the concept of irrelevance irrelevant. See United States v. Menasche, 348 U.S. 528, 538–39 (1955) (It is the Court’s “duty ‘to give effect, if possible, to every clause and word of a statute,’ rather than to emasculate an entire section, as the Government’s interpretation requires.” (citation omitted) (quoting Inhabitants of Montclair Twp. v. Ramsdell, 107 U.S. 147, 152 (1883))).
The concept of relevance has “developed a particularized legal meaning in the context of the production of documents and other things in conjunction with official investigations and legal proceedings.” White Paper at 9. In these other contexts, courts have generally given “relevance” a broad compass. See, e.g., Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993); United States v. R. Enters., Inc., 498 U.S. 292 (1991). To say that courts have given relevance a broad compass, however, is not to say they have given it a boundless one. The
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relevance standard allows courts to prevent abuses of the judicial process, to protect individuals and corporations from unwarranted harassment, and to serve society’s interest in limiting the costs and delays of litigation. See, e.g., United States v. Powell, 379 U.S. 48, 57–58 (1964); Resolution Trust Corp. v. Dabney, 73 F.3d 262, 269 (10th Cir. 1995); United States v. Westinghouse Elec. Corp., 788 F.2d 164, 166–67 (3d Cir. 1986).
Accordingly, courts routinely quash subpoenas for records that do not have a direct relationship to the underlying investigation they are meant to serve. See, e.g., Bowman Dairy Co. v. United States, 341 U.S. 214, 221 (1951) (invalidating a subpoena’s “catch-all provision” on the grounds that it was “merely a fishing expedition to see what may turn up”). Courts also reject or narrow subpoenas that, because they fail to identify the outer bounds of the categories of documents they seek, cover large volumes of irrelevant documents. See In re Horowitz, 482 F.2d 72, 79 (2d Cir. 1973) (Friendly, J.) (narrowing a grand-jury subpoena on the grounds that it improperly demanded the contents of multiple filing cabinets “without any attempt to define classes of potentially relevant documents or any limitations as to subject matter or time period”); cf. Cheney v. U.S. Dist. Court, 542 U.S. 367, 387–88 (2004) (approving of circuit court’s reversal of “overbroad” discovery orders that were “anything but appropriate” because they “ask[ed] for everything under the sky”); In re Six Grand Jury Witnesses, 979 F.2d 939, 943 (2d Cir. 1992) (“All agree that the rules of discovery are to be applied broadly, but that according the discovery rules liberal treatment does not license opposing counsel to discover anything and everything.”).
This Court has applied that same logic to quash a subpoena duces tecum that demanded the entirety of the content of “computer hard drives and floppy disks,” finding it overbroad because the materials “contain[ed] some data concededly irrelevant to the grand jury inquiry.” In
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re Grand Jury Subpoena Duces Tecum Dated Nov. 15, 1993, 846 F. Supp. 11, 12 (S.D.N.Y.
1994) (Mukasey, J.). In In re Grand Jury Subpoena, as in this case, government counsel
acknowledged that the subpoena requested the production of irrelevant documents. Id. at 13.
Comparing the hard drives in the case before him to the filing cabinets in In re Horowitz, Judge
Mukasey quashed the subpoena. The Court concluded that the government could, by using
keyword searches, “isolate[]” the relevant documents without requiring the subject of the
subpoena to turn over the irrelevant ones. Id. And notably, the Court rejected the government’s
contention that its “more sweeping demand than might normally be made” was justified by the
breadth of its investigation, as even an “expanded investigation does not justify a subpoena
which encompasses documents completely irrelevant to its scope.” Id. (quotation marks omitted).10
The license to collect relevant records is not, as the government would have it, a license
to collect everything. In its public defense of the mass call-tracking program, the government has
suggested that all of the records collected under the program are relevant because some of them
might become useful in the future. See generally HJC Hearing. Unless cabined in some way,
however, this theory would justify the collection of virtually any record. It is always possible,
after all, that information not known to be relevant now will become relevant later. Section 215,
10 See also Cessante v. City of Pontiac, No. CIV. A. 07-CV-15250, 2009 WL 973339, at *7 (E.D. Mich. Apr. 9, 2009) (“While some of the information sought may be relevant or lead to relevant information, the request for ‘anything and everything’ is overly broad and not narrowly tailored to meet the relevancy requirements of Fed. R. Civ. P. 26(b).”); Hale v. Henkel, 201 U.S. 43, 76–77 (1906) (finding a “subpoena duces tecum . . . far too sweeping in its terms to be regarded as reasonable” where it did not “require the production of a single contract, or of contracts with a particular corporation, or a limited number of documents, but all understandings, contracts, or correspondence between” a company and six others, among other broadly stated requests spanning many years and locations); Ealy v. Littlejohn, 569 F.2d 219, 227 (5th Cir. 1978) (tying First Amendment limitations on grand-jury investigations to “relevancy to the crime under investigation,” and concluding that “[w]hen the grand jury goes on a fishing expedition in forbidden waters, the courts are not powerless to act”).
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however, does not authorize the government to compel the production of records simply because they might one day become relevant. It authorizes the collection of records only if there are reasonable grounds to believe that they “are” relevant. 50 U.S.C. § 1861(b)(2)(A) (emphasis added); see In re Fontaine, 402 F. Supp. 1219, 1221 (E.D.N.Y. 1975) (“While the standard of relevancy is a liberal one, it is not so liberal as to allow a party ‘to roam in shadow zones of relevancy and to explore matter which does not presently appear germane on the theory that it might conceivably become so.’” (quoting In re Surety Ass’n of Am., 388 F.2d 412, 414 (2d Cir. 1967))).11
Section 215 was meant to supply the government in the foreign-intelligence context with the same kind of authority that it possessed already in the law-enforcement context. See Dep’t of Justice, USA PATRIOT Act: Myth vs. Reality, http://1.usa.gov/14nej54 (last visited Aug. 22, 2013) (“Obtaining business records is a long-standing law enforcement tactic. . . . Section 215 authorized the FISA court to issue similar orders in national-security investigations.” (emphasis omitted)); 50 U.S.C. § 1861(c)(2)(D).
By the government’s own admission, however, no court has ever sanctioned a subpoena that sought production on the scale of the mass call-tracking program. See, e.g., White Paper at 11 (“To be sure, the cases that have been decided in these contexts do not involve collection of data on the scale at issue in the telephony metadata collection program, and the purpose for which information was sought in these cases was not as expansive in scope as a nationwide intelligence collection effort designed to identify terrorist threats.”). Nor, again, is there any serious argument that such a sweeping subpoena would be upheld.
11 Notably, while a presumption of regularity attaches to all grand-jury subpoenas and thus places the burden to quash on the recipients, see, e.g., Powell, 379 U.S. at 58; In re Grand Jury Proceedings, 486 F.2d 85, 92 (3d Cir. 1973), Section 215 applies a presumption of relevance to only three narrow categories of tangible things. 50 U.S.C. § 1861(b)(2)(A).
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The program also exceeds statutory authority because it involves surveillance that is prospective rather than retrospective. On its face, Section 215 permits the government to collect already-existing records, not to engage in ongoing surveillance. See 50 U.S.C. § 1861(c)(1)–(2) (contemplating the “release” of “tangible things” that can be “fairly identified” after a “reasonable period of time within which the tangible things can be assembled and made available”). The government has acknowledged this. See, e.g., HJC Hearing at 3h:00m:03s (statement of Robert Litt, Gen. Counsel, Office of the Dir. of Nat’l Intelligence) (“It’s important to remember that 215 authority allows you to acquire existing records and documents and it’s limited to that.”). Here, however, the government has subjected recipients of Section 215 orders to an ongoing production obligation—an obligation that is effectively indefinite.
Moreover, the government’s use of Section 215 here amounts to an end run around other FISA provisions that specifically address—and limit—the circumstances in which the government can engage in prospective surveillance of telephony metadata. See 50 U.S.C. § 1842(a) (authorizing installation and use of “pen register” and “trap and trace” device); id. at § 1842(d) (stating that order granting approval to install or use “pen register” or “trap and trace” device must include, among other things, “the identity, if known, of the person who is the subject of the investigation”; “the identity, if known” of the person whose telephone is to be monitored; and “the attributes of the communications to which the order applies, such as the number or other identifier, and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied and, in the case of a trap and trace device, the geographic limits of the trap and trace order”). The government is improperly relying on Section 215 to engage in conduct that a more specific provision—namely, 50 U.S.C. § 1842—disallows. In re Stoltz, 315 F.3d 80, 93 (2d Cir. 2002) (holding that it is a “basic
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principle of statutory construction that a specific statute . . . controls over a general provision” (quoting HCSC–Laundry v. United States, 450 U.S. 1, 6 (1981))).12
Finally, the mass call-tracking exceeds statutory authority because it effectively reassigns to the executive a task that Congress assigned to the judiciary. Section 215 entrusts to the FISC, not the executive, the responsibility of determining whether the “tangible things” sought by the government are closely connected to an authorized investigation. Under the mass call-tracking program, however, that determination is shifted entirely to the executive. See White Paper at 3–4 (describing process by which executive officers determine whether and how already-collected metadata should be queried). Again, the government has acknowledged that the vast majority of the records collected under the program have no connection at all to terrorism. Its defense of the program is that executive officers make a nexus determination when they access the database. If that is how Congress had wanted the statute to operate, it could readily have said so. It is easy to understand why Congress did not. See, e.g., Memorandum Opinion, [Title Redacted], No. 11 BR [Dkt. No. Redacted], at 16 n.14 (FISA Ct. Oct. 3, 2011) (Bates, J.), http://bit.ly/13UH2dS (discussing a previous FISC ruling) (“Contrary to the government’s repeated assurances, NSA had been routinely running queries of the metadata using querying terms that did not meet the required standard for querying. The Court concluded that this requirement had been so frequently and systematically violated that it can fairly be said that this critical element of the overall
12 Notably, concerns about an analogous end run have led some courts to prohibit the government from using the Stored Communications Act (“SCA”) to engage in prospective surveillance of telephony metadata for law-enforcement purposes. See In re Application of the U.S. for an Order Authorizing the Disclosure of Cell Site Location Info., No. 6:08-6038M-REW, 2009 WL 8231744, at *3, *8 (E.D. Ky. Apr. 17, 2009) (discussing language in the SCA “plainly indicat[ing]” that it applies only to “records/information that exist at the time of application”); In re Application for Pen Register & Trap/Trace Device with Cell Site Location Auth., 396 F. Supp. 2d 747, 760 (S.D. Tex. 2005) (discussing the availability of surveillance tools that are more appropriate authorities for forward-looking record collection because they are “inherently prospective in nature”).
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regime has never functioned effectively.” (alteration and quotation marks omitted)). In

substituting the executive’s ex post nexus determination for the FISC’s ex ante relevance

determination, the program exceeds statutory authority.

For the foregoing reasons, the program cannot be reconciled with Section 215’s plain

language. See BedRoc Ltd. v. United States, 541 U.S. 176, 183 (2004) (“[O]ur inquiry begins with the statutory text, and ends there as well if the text is unambiguous.”).13

B. The government’s long-term recording and aggregation of Plaintiffs’ telephony metadata violates the Fourth Amendment.

The mass call-tracking program is unlawful under the Fourth Amendment. Telephony

metadata reveals personal details and relationships that most people customarily and justifiably

regard as private. The government’s long-term recording and aggregation of this information

invades a reasonable expectation of privacy and constitutes a search. This search violates the

Fourth Amendment because it is warrantless and unreasonable. Indeed, it lacks any of the usual

indicia of reasonableness: it infringes Plaintiffs’ privacy without probable cause or

individualized suspicion of any kind; it is effectively indefinite, having been in place for seven

years already; and it lacks any measure of particularity, instead logging information about every

single phone call.

1.

The government’s long-term recording and aggregation of telephony

metadata constitutes a search under the Fourth Amendment.

A Fourth Amendment search occurs “when the government violates a subjective

expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S.

13 For the reasons stated above, Plaintiffs believe that the mass call-tracking program is inconsistent with the plain text of the Section 215. Even if the court concludes that the provision’s text is ambiguous, however, the doctrine of constitutional avoidance counsels rejection of the sweeping construction of the provision that the government appears to have adopted. See, e.g., Clark v. Martinez, 543 U.S. 371, 381 (2005); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988).
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27, 33 (2001). Under this test, the long-term recording and aggregation of telephony metadata constitutes a search. Americans do not expect that their government will make a note, every time they pick up the phone, of whom they call, precisely when they call them, and for precisely how long they speak. Nor should they have to. Generalized surveillance of this kind has historically been associated with authoritarian and totalitarian regimes, not with constitutional democracies. See, e.g., United States v. Gordon, 236 F.2d 916, 919 (2d Cir. 1956); Neil M. Richards, The Dangers of Surveillance, 126 Harv. L. Rev. 1934, 1934 (2013) (Until recently, “the threat of constant surveillance has been relegated to the realms of science fiction and failed totalitarian states.”); George Orwell, Freedom and Happiness, Tribune, Jan. 4, 1946 (review of Yevgeny Zamyatin’s We), http://bit.ly/GCmoHe; The Lives of Others (Sony Pictures Classics 2006).
As an initial matter, Plaintiffs have a subjective expectation of privacy in their telephony metadata.14 As the declarations of Steven R. Shapiro, Christopher Dunn, and Michael German explain, Plaintiffs ACLU and NYCLU work on a wide range of civil-liberties and human-rights issues, including issues relating to national security, police accountability, reproductive rights, LGBT rights, and immigrants’ rights. Shapiro Decl. ¶ 3; Dunn Decl. ¶ 3; German Decl. ¶ 2. In connection with this work, ACLU and NYCLU staff frequently place calls to, and receive calls from, individuals who have been wronged in some way by the government, have knowledge of government abuses, or fear government retaliation for some action they have taken in the past. German Decl. ¶¶ 12–19; Shapiro Decl. ¶¶ 4, 8; Dunn Decl. ¶¶ 5–6, 9. These communications are
14 Most Americans apparently agree that their telephony metadata should be secure from longterm recording and aggregation by the government. See, e.g., Frank Newport, Americans Disapprove of Government Surveillance Programs, Gallup Politics, June 12, 2013, http://bit.ly/11fWoZc; Pew Research, Few See Adequate Limits on NSA Surveillance Program, July 26, 2013, http://bit.ly/12pdN7D; see also Press Release, Office of Sen. Ron Wyden, Wyden Statement on Alleged Large-Scale Collection of Phone Records, June 6, 2013, http://1.usa.gov/11v2Deo (“Collecting this data about every single phone call that every American makes every day [is] a massive invasion of Americans’ privacy.”).
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often sensitive or confidential; in many circumstances, this is true of the mere fact of the communication. For example, Plaintiffs routinely communicate with prospective whistleblowers who would forgo speaking with Plaintiffs if they believed that their communications were being logged by the government. See, e.g., Shapiro Decl. ¶¶ 4, 8; German Decl. ¶¶ 23, 25–30.
Because its communications are often sensitive or confidential, the ACLU takes measures to protect its communications from surveillance by the government or other third parties. See, e.g., Shapiro Decl. ¶ 5. In some circumstances ACLU staff use encryption software to protect the substance of their communications. Id. The ACLU is not aware of any technology that would allow it to shield its telephony metadata from surveillance of the kind at issue here, see Felten Decl. ¶¶ 30, 33–37, but Plaintiffs treat their telephony metadata as sensitive. Shapiro Decl. ¶ 5.15
Plaintiffs’ expectation that their telephony metadata will not be subject to long-term recording and aggregation by the government is objectively reasonable. The kind of surveillance at issue here permits the government to assemble a richly detailed profile of every person living in the United States and to draw a comprehensive map of their associations with one another. As the declaration of Edward Felten explains, “analysis of telephony metadata often reveals information that could traditionally only be obtained by examining the contents of communications.” Felten Decl. ¶ 39. For example, “certain telephone numbers are used for a
15 The reasonableness of Plaintiffs’ expectation of privacy is reinforced by the terms of service in their contracts with Verizon, which describe Verizon’s obligation to protect the confidential information its subscribers necessarily share in the course of their communications. These agreements define Customer Proprietary Network Information (“CPNI”) to include, among other things, “information relating to the quantity, technical configuration, type, destination, location, and amount of use of the telecommunications services Customer purchases from Verizon, as well as related local and toll billing information, made available to Verizon solely by virtue of Customer’s relationship with Verizon.” Shapiro Decl. ¶ 7 (emphasis added). Consistent with privacy protections written into federal law, 47 U.S.C. § 222(c)(1), Verizon agrees to “protect the confidentiality of Customer CPNI in accordance with applicable laws, rules and regulations.” Shapiro Decl. ¶ 7.
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single purpose,” id. ¶ 40, and their use can reveal a person’s religion, political associations, use of a phone-sex hotline, contemplation of suicide, addiction to gambling or drugs, experience with rape, grappling with sexuality, or support for particular political causes. Id. ¶¶ 39–45. “The phone records indicating that someone called a sexual hotline or a tax fraud reporting hotline will . . . reveal information that virtually everyone would consider extremely private.” Id. ¶ 42.
Aggregating metadata across time can yield “an even richer repository of personal and associational details.” Id. ¶ 47. Even basic inspection of our calling patterns, without relying upon single-use numbers, can reveal: “when we are awake and asleep; our religion, if a person regularly makes no calls on the Sabbath, or makes a large number of calls on Christmas Day; our work habits and our social aptitude; the number of friends we have; and even our civil and political affiliations.” Id. ¶ 46. It “can reveal the rise and fall of intimate relationships, the diagnosis of a life-threatening disease, the telltale signs of a corporate merger or acquisition, the identity of a prospective government whistleblower, the social dynamics of a group of associates, or even the name of an anonymous litigant.” Id. ¶ 58.
Finally, aggregating the telephony metadata of many people allows researchers to “observe even deeper patterns.” Id. ¶ 59. Because individuals are often defined by the company they keep, pooling together one person’s telephony metadata with the telephony metadata of each of her contacts and each of her contacts’ contacts allows an analyst to “paint[] a picture that can be startlingly detailed.” Id. ¶ 1. As Professor Felten writes, “The privacy impact of collecting all communications metadata about a single person for long periods of time is qualitatively different than doing so over a period of days. Similarly, the privacy impact of assembling the call records of every American is vastly greater than the impact of collecting data about a single person or even groups of people.” Id. ¶ 64.
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The long-term recording and aggregation of telephony metadata achieves essentially the
same kind of privacy intrusion that led five Justices of the Supreme Court to conclude in United
States v. Jones, 132 S. Ct. 945 (2012), that the long-term recording and aggregation of location
information constituted a search. In Jones, the Supreme Court considered whether police had
conducted a Fourth Amendment search when they attached a GPS-tracking device to a vehicle
and monitored its movements over a period of twenty-eight days. The Court held that the
installation of the GPS device and the use of it to monitor the vehicle’s movements constituted a
search because it involved a trespass “conjoined with . . . an attempt to find something or to
obtain information.” Id. at 951 n.5. In two concurring opinions, five Justices concluded that the
surveillance constituted a search because it “impinge[d] on expectations of privacy.” Id. at 964
(Alito, J., concurring); id. at 955 (Sotomayor, J., concurring). Justice Sotomayor explained:
GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such records and efficiently mine them for information years into the future. And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: limited police resources and community hostility. Id. at 955–56 (citations and quotation marks omitted); see id. at 964 (Alito, J., concurring).
What Justice Sotomayor observed of long-term location tracking is equally true of the
mass call-tracking program. The surveillance at issue here “enables the Government to ascertain,
more or less at will, [every person’s] political and religious beliefs, sexual habits, and so on.” Id. at 956 (Sotomayor, J., concurring).16
16 The government has downplayed the sensitivity of telephony metadata, characterizing this information as “only technical data.” White Paper at 15. But the government itself has recognized the sensitivity of this information in other contexts. For example, just last week, the Chairwoman of the Federal Trade Commission gave a speech underscoring the serious privacy concerns raised by the “bit-by-bit” compilation of “little data” into “enormous databases.” Edith
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Indeed, the program is in several respects considerably more intrusive than the location
tracking that was at issue in Jones. The latter case involved the surveillance of a single vehicle
over a twenty-eight days. The mass call-tracking program, by contrast, has involved the
surveillance of every American over a period of seven years—and the government appears intent on continuing this surveillance indefinitely.17
In its public defense of the program, the government has relied heavily on Smith v.
Maryland, 442 U.S. 735 (1979), in which the Supreme Court upheld the installation of a “pen
register” in a criminal investigation. White Paper at 19–20. The pen register in Smith, however,
was very primitive—it tracked the numbers being dialed, but it did not indicate which calls were
completed, let alone the duration of those calls. 442 U.S. at 741. It was in place for less than two
days, and it was directed at a single criminal suspect. Id. at 737 (noting that pen register was
installed after woman who had been robbed began receiving threatening and obscene phone calls
from man purporting to be robber). Moreover, the information the pen register yielded was not
aggregated with information from other pen registers, let alone with information relating to
hundreds of millions of innocent people. Id. Nothing in Smith—a case involving narrow
Ramirez, Chairwoman, Fed. Trade Comm’n, Keynote Address at the Technology Policy Institute Aspen Forum 4 (Aug. 19, 2013), http://1.usa.gov/170P3lB; see id. at 4–5 (“The little data often reflects deeply personal information about individuals: the medical treatment they receive; the products and services they buy; their physical location; the websites they surf; their intimate communications with family and friends; and the list goes on.”).
17 According to the government, the scope of the program reflects the scope of the underlying investigation. See White Paper at 12 (“the sort of national security investigations with which Section 215 is concerned often have a remarkable breadth—spanning long periods of time, multiple geographic regions, and numerous individuals”). That the underlying investigation is so broad, however, is a factor that weighs against the government’s constitutional argument. See, e.g., Keith, 407 U.S. at 320 (“Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.”).
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surveillance directed at a specific criminal suspect over a very limited time period—remotely suggests that the Constitution allows the government’s mass collection of sensitive information about every single phone call made or received by residents of the United States over a period of seven years. Notably, since Smith was decided in 1979, “technological advances . . . in computing, electronic data storage, and digital data mining . . . have radically increased our ability to collect, store, and analyze personal communications, including metadata.” Felten Decl. ¶ 22.
Indeed, the government’s reliance on Smith suggests that it has failed to absorb the crucial insight of Jones: that whether or not a particular form of surveillance constitutes a search can turn on whether the information generated through the surveillance is aggregated. See Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring) (“making available . . . such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may alter the relationship between citizen and government in a way that is inimical to democratic society” (emphasis added and quotation marks omitted)); id. (stating that individuals have “a reasonable societal expectation of privacy in the sum of [their] public movements” (emphasis added)); id. at 964 (Alito, J., concurring) (“society’s expectation has been that law enforcement agents and others would not—and, indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period”); see also United States v. Knotts, 460 U.S. 276, 284–85 (1983) (reserving question of whether the Fourth Amendment would treat dragnet location tracking differently from location tracking of a single individual). Again, the mass call-tracking program involves the aggregation of sensitive information not only over long periods of time (as was the case in Jones) but across hundreds of millions of people. To contend that Smith controls here is to
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misunderstand the narrowness of the pen-register surveillance upheld in that case, the breadth of the surveillance at issue here, or both.18

2.

The government’s long-term recording and aggregation of telephony

metadata is unreasonable.

i. The mass call-tracking program involves warrantless searches, which are per se unreasonable.

The mass call-tracking program authorizes warrantless searches, which “are per se

unreasonable under the Fourth Amendment—subject only to a few specifically established and

well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967); see United States

v. Karo, 468 U.S. 705, 717 (1984). In fact, it authorizes the particular form of search that the

authors of the Fourth Amendment found most offensive.

The program is, in reality, a general warrant for the digital age. Like a general warrant, it

permits searches not predicated upon “an oath or information supplying cause.” Morgan Cloud,

Searching Through History; Searching For History, 63 U. Chi. L. Rev. 1707, 1738 (1996). Like

a general warrant, it authorizes surveillance that “survive[s] indefinitely.” Id. And like a general

warrant, it is “not restricted to searches of specific places or to seizures of specific goods.” Id.;

see also Berger v. New York, 388 U.S. 41, 59 (1967) (striking down electronic-surveillance

statute that, like “general warrants,” left “too much to the discretion of the officer executing the

18 To the extent the government’s argument is that individuals lack a constitutionally protected privacy interest in telephony metadata because that information has been shared with telecommunications companies, White Paper at 20, this argument, too, is mistaken. Jones makes clear that the mere fact that a person has shared information with the public or a third party does not mean that the person lacks a constitutionally protected privacy interest in it. See 132 S. Ct. at 957 (Sotomayor, J., concurring); id. at 964 (Alito, J., concurring). Jones, moreover, is only the most recent of a line of Supreme Court cases reflecting the same principle. See, e.g., Florida v. Jardines, 133 S. Ct. 1409 (2013) (odors detectable by a police dog that emanate outside of a home); Kyllo v. United States, 533 U.S. 27 (2001) (thermal signatures emanating from a home); Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001) (diagnostic-test results held by hospital staff); Bond v. United States, 529 U.S. 334, 338–39 (2000) (personal luggage in overhead bin on bus).
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order” and gave the government “a roving commission to seize any and all conversations” (quotation marks omitted)).
The government has elsewhere hinted that the “special needs” doctrine excuses its failure to comply with the warrant clause. Plaintiffs will address that doctrine at greater length if the government relies upon it in this case. But even if its interest in examining the telephony metadata of suspected terrorists qualifies as a “special need,” the government would still have to establish that the manner in which it pursues that interest is reasonable. Illinois v. Lidster, 540 U.S. 419, 426 (2004). For the reasons below, it is not.
ii. The government’s long-term recording and aggregation of telephony metadata is unreasonable.
Even if the warrant requirement does not apply, the government’s dragnet collection of Plaintiffs’ phone records is unreasonable and, therefore, unconstitutional. Courts have insisted that the government’s intrusions on privacy be precise and discriminate. Berger, 388 U.S. at 58. The mass call-tracking program is anything but. To pursue its limited goal of tracking the associations of a discrete number of individuals, the government has employed the most indiscriminate means possible—collecting everyone’s records. The government has, in the words of Section 215’s author, “scoop[ed] up the entire ocean to . . . catch a fish.”19
“[T]he ultimate touchstone of the Fourth Amendment” is “reasonableness,” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Reasonableness is determined by examining the “totality of circumstances” to “assess[], on the one hand, the degree to which [government conduct] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Samson v. California, 547 U.S. 843, 848 (2006) (quotation
19 Jennifer Valentino-Devries & Siobhan Gorman, Secret Court’s Redefinition of ‘Relevant’ Empowered Vast NSA Data-Gathering, Wall St. J., July 8, 2013, http://on.wsj.com/14N9j6j (quoting Rep. Jim Sensenbrenner).
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marks omitted); see also Virginia v. Moore, 553 U.S. 164, 169 (2008). In the context of electronic surveillance, reasonableness demands that statutes have “precise and discriminate” requirements and that the government’s surveillance authority be “carefully circumscribed so as to prevent unauthorized invasions of privacy.” Berger, 388 U.S. at 58 (quotation marks omitted); see also United States v. Bobo, 477 F.2d 974, 980 (4th Cir. 1973) (“[W]e must look . . . to the totality of the circumstances and the overall impact of the statute to see if it authorizes indiscriminate and irresponsible use of electronic surveillance or if it authorizes a reasonable search under the Fourth Amendment.”).
In this case, the intrusion upon Plaintiffs’ privacy is substantial. The government has acquired and continues to acquire a record of every single call made to or from Plaintiffs. As explained above, those records contain a wealth of revealing information. In public statements, the government has emphasized that the mass call-tracking program does not involve the collection of the content of Americans’ communications. This does not save the program. As shown above, the government need not examine the content of the communications in order to gain a “startlingly detailed” profile of each and every American. Felten Decl. ¶ 1.
The principal question in conducting the Fourth Amendment’s balancing inquiry is, therefore, only whether the government’s asserted interest in the mass call-tracking program justifies the blanket invasion of Plaintiffs’—and every Americans’—right to privacy. It does not.
Two Supreme Court cases are particularly instructive. In Berger, the Supreme Court invalidated a New York statute that authorized issuance of an “order for eavesdropping . . . upon oath or affirmation . . . that there is reasonable ground to believe that evidence of crime may be thus obtained.” 388 U.S. at 43–44 & n.1. In holding that the statute violated the Fourth Amendment, the Court noted its breadth, id. at 55, its lack of particularity, id. at 55–56, the
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lengthy surveillance it authorized, id. at 59, and the lack of a “termination date on the eavesdrop once the conversation sought [was] seized,” id. at 59–60. These features, the Court held, allowed “indiscriminate” surveillance and permitted the “general searches” prohibited by the Fourth Amendment. Id. at 58–59.
Five years later, in Keith, the Supreme Court held unconstitutional a warrantless wiretap that the Attorney General had “deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.” 407 U.S. at 300. Noting that “‘reasonableness’ derives content and meaning through reference to the warrant clause,” id. at 309–10, the Court stressed that “[t]he Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised,” id. at 317. The Court did not question the government’s need to conduct electronic surveillance “to safeguard domestic security,” id. at 315, but it asked “whether the needs of citizens for privacy and the free expression may not be better protected by requiring a warrant before such surveillance is undertaken,” id. The Court wrote:
Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. Id. at 320. The mass call-tracking program lacks any of the indicia of reasonableness that the Supreme Court looked to in Berger and Keith. First, the program authorizes surveillance that is suspicionless. Under the mass calltracking program, the government acquires the telephone records of every customer of
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Verizon—and virtually every American. The collection is not limited to specific targets. The absence of a suspicion requirement weighs heavily against the program’s reasonableness. Chandler v. Miller, 520 U.S. 305, 313 (1997) (“To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.”); United States v. Duggan, 743 F.2d 59, 73 (2d Cir. 1984) (FISA’s requirement of individualized suspicion that the government’s target is an “agent of a foreign power” is part of what makes it “reasonable.”); United States v. Cavanagh, 807 F.2d 787, 790 (9th Cir. 1987) (same); United States v. Pelton, 835 F.2d 1067, 1075 (4th Cir. 1987) (same).
Second, the mass call-tracking program allows surveillance that is essentially indefinite. The program contains no apparent temporal limit. Rather, the government has collected every American’s call records for the last seven years, and it apparently intends to continue the program indefinitely. Neither the government nor the FISC “clearly circumscribe[s] the discretion” of the government “as to when the surveillance should end.” United States v. Tortorello, 480 F.2d 764, 774 (2d Cir. 1973). That the program has no temporal limit also weighs heavily against its reasonableness. See United States v. Cafero, 473 F.2d 489, 496 (3d Cir. 1973) (“Carte blanche is given no one. Executing officers are not free to intercept beyond attainment of their objective for an hour, a day, seven days, or twenty-nine days.”); In re Sealed Case, 310 F.3d 717, 740 (FISA Ct. Rev. 2002).
Third, the program fails to limit in any way the scope and nature of phone records that the government may demand. The government simply obtains all of Plaintiffs’ phone records, no matter their relevance to an ongoing investigation. In other words, the program not only fails to differentiate between individuals that the government has a legitimate interest in monitoring and those that it does not, but it draws no distinction between metadata that is relevant to an
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investigation and metadata that is not. The program’s lack of particularity is yet another factor that weighs heavily against its reasonableness. Berger, 388 U.S. at 56 (noting that the demand of particularity is “especially great” when the government targets electronic communications); see also In re Sealed Case, 310 F.3d at 739; Tortorello, 480 F.2d at 773; Bobo, 477 F.2d at 982; Cafero, 473 F.2d at 498.
Finally, the program sweeps far more broadly than necessary to achieve the government’s stated interest. The government has said that its interest is in discovering the networks of particular suspected terrorists. But to achieve this interest, the government could simply collect those records relating to those individuals. The government need not collect everyone’s call records in order to discover information about a discrete number of individuals.
That new technology enables the government to collect and analyze everyone’s information does not mean that the Constitution permits it. This case arises because new technologies allow the government to collect, store, and analyze exponentially more information than ever before, see Felten Decl. ¶¶ 12, 22–24; but those capabilities are still subject to familiar constitutional limits. See Jones, 132 S. Ct. at 963–64 (Alito, J., concurring). No doubt, the continuous collection of all phone records provides easy access, in the future, to the tiny subset of records that the government might later find a legitimate need to examine. It is not surprising that, in this digital age, intelligence officials have expressed a desire to “collect it all.”20 But, recognizing the dangers of this executive impulse to put expedience ahead of privacy, the Fourth Amendment requires that the government’s searches be “carefully circumscribed.” Berger, 388 U.S. at 58; see also Gordon, 236 F.2d at 919 (“[The Fourth Amendment], too, often becomes a barrier to crime investigation, as when evidence slips away because the police may not promptly
20 Ellen Nakashima & Joby Warrick, For NSA Chief, Terrorist Threat Drives Passion to ‘Collect It All,’ Observers Say, Wash. Post, July 14, 2013, http://wapo.st/14Nb17P.
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search without a warrant. American prosecutors must learn to adjust themselves to these

obstacles. The purpose of the Bill of Rights was as Madison declared, ‘to oblige the government

to control itself.’” (footnote omitted)). The mass call-tracking program is unreasonable because,

in one fell swoop, it erodes the privacy of all Americans. It is not saved by the relative ease with

which the government accomplishes that intrusion.

C. The government’s long-term recording and aggregation of Plaintiffs’ telephony metadata violates the First Amendment.

1.

Courts apply “exacting scrutiny” to investigative practices that

significantly burden First Amendment rights.

The Supreme Court has recognized that government surveillance can have a profound

chilling effect on First Amendment rights. In Keith, the Court described these constitutional

dangers in detail, writing:

National security cases . . . often reflect a convergence of First and Fourth Amendment values not present in cases of “ordinary” crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. “Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power[.]” . . .
The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation.
407 U.S. at 313–14 (internal citations omitted).

Because investigatory tools have an acute potential to stifle free association and

expression, the courts have subjected such methods to “exacting scrutiny” where they

substantially burden First Amendment rights. In re Grand Jury Proceedings, 776 F.2d 1099,

1102–03 (2d Cir. 1985) (grand-jury subpoena); Clark v. Library of Cong., 750 F.2d 89, 94 (D.C.

Cir. 1984) (FBI field investigation); Nat’l Commodity & Barter Ass’n v. Archer, 31 F.3d 1521,

1531 n.4 (10th Cir. 1994) (seizure of organization’s membership information). This standard is a

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demanding one. The government must show that its investigative methods are the least restrictive means of pursuing a compelling state interest. See Clark, 750 F.2d at 95. “This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the government’s conduct.” Elrod v. Burns, 427 U.S. 347, 362 (1976) (quoting Buckley v. Valeo, 424 U.S. 1, 65 (1976) (per curiam)); see also Bates v. City of Little Rock, 361 U.S. 516, 523 (1960) (“Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.”).
The First Amendment’s protection is distinct from and often greater than that afforded by the Fourth Amendment. See Local 1814, Int’l Longshoremen’s Ass’n v. Waterfront Comm’n of N.Y. Harbor, 667 F.2d 267, 269 (2d Cir. 1981) (narrowing subpoena as overbroad on First Amendment grounds); Tabbaa v. Chertoff, 509 F.3d 89, 102–03 n.4 (2d Cir. 2007) (“[D]istinguishing between incidental and substantial burdens under the First Amendment requires a different analysis, applying different legal standards,” than under the Fourth Amendment.); Ealy, 569 F.2d at 227 (“We therefore conclude that the First Amendment can serve as a limitation on the power of the grand jury to interfere with a witness’ freedoms of association and expression.”). Indeed, even those cases applying a Fourth Amendment analysis give First Amendment interests independent weight, requiring “scrupulous exactitude” when expressive information is at stake. Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978) (quoting Stanford, 379 U.S. at 485); see Marcus v. Search Warrants, 367 U.S. 717 (1961).
A criminal search warrant, supported by probable cause and carefully drawn, may overcome a countervailing First Amendment interest. But as the government’s demands for information become more diffuse, implicating more and more protected information on a lower
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showing of relevance or need, the First Amendment calculus shifts too. Thus, courts have turned

aside or limited demands for membership rolls, sweeping subpoenas for business records that

would reveal the same information, and the FBI’s use of mail covers to obtain the postal

equivalent of “metadata.” See Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539, 546

(1963); Local 1814, 667 F.2d at 269; FEC v. Larouche Campaign, Inc., 817 F.2d 233, 234–35

(2d Cir. 1987) (per curiam); Paton v. La Prade, 469 F. Supp. 773 (D.N.J. 1978).

2.

The mass call-tracking program substantially burdens Plaintiffs’

First Amendment rights.

The Supreme Court has repeatedly recognized that the government’s surveillance and

investigatory activities can infringe on associational rights protected by the First Amendment.

Thus in NAACP v. Alabama ex rel. Patterson, a case in which the Supreme Court invalidated an

Alabama order that would have required the NAACP to disclose its membership lists, the Court

wrote, “[i]t is hardly a novel perception that compelled disclosure of affiliation with groups

engaged in advocacy” may operate as “a restraint on freedom of association.” 357 U.S. 449, 462

(1958). “Inviolability of privacy in group association may in many circumstances be

indispensable to preservation of freedom of association, particularly where a group espouses

dissident beliefs.” Id.; see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341–42

(1995); Doe v. Ashcroft, 334 F. Supp. 2d 471, 507 (S.D.N.Y. 2004).

The government’s mass call-tracking program raises precisely the same specter of

associational harm by permitting the government to track every one of Plaintiffs’ telephone

contacts. As discussed above, in the course of their work Plaintiffs routinely communicate by

phone with their members, donors, current and potential clients, whistleblowers, legislators and

their staffs, other advocacy organizations, and members of the public. Many of these

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communications are sensitive or confidential. See German Decl. ¶¶ 12–13, 23–24; Shapiro Decl. ¶ 4; Dunn Decl. ¶¶ 5–6.
The mass call-tracking program exposes all of these associational contacts to government monitoring and scrutiny. In its breadth and scope, the NSA’s bulk metadata collection far exceeds the demands for membership information that produced NAACP v. Alabama and its progeny. See also Bates, 361 U.S. 516; Gibson, 372 U.S. 539. These seminal cases rejected government efforts to obtain basic membership rolls. By comparison, the metadata that the NSA is now gathering yields an even richer web of private associational information. It supplies a comprehensive social map of Plaintiffs’ activities—reflecting the full breadth of associational ties embedded in their everyday work of public education, legal counseling, and legislative advocacy.
A corollary of this direct intrusion on Plaintiffs’ associational rights is the chill it imposes on Plaintiffs’ work by exposing to government scrutiny many of Plaintiffs’ most sensitive contacts. Indeed, because the surveillance at issue here is so intrusive, and the information gathered by it so rich, it raises yet another concern that the Court found so troubling in Jones. As Justice Sotomayor there observed, generalized surveillance on this scale will inevitably have a chilling effect on First Amendment rights. See Jones, 132, S. Ct. at 956 (Sotomayor, J., concurring) (“Awareness that the Government may be watching chills associational and expressive freedoms.”). This harm amounts to a substantial and discrete First Amendment injury.
Plaintiffs regularly communicate with individuals who are themselves whistleblowers and wish to come forward with evidence of government wrongdoing, including “illegality, waste, fraud, or abuse.” German Decl. ¶ 2; see id. ¶¶ 12–24; Shapiro Decl. ¶ 4; Dunn Decl. ¶ 6. Likewise, Plaintiffs communicate with individuals relating to potential legal representation in
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suits, including the victims of government abuses, who seek legal advice and may ultimately become clients or confidential sources of information. Shapiro Decl. ¶ 4. Finally, Plaintiffs communicate with other civil society organizations across the ideological spectrum, many of whom investigate instances of government wrongdoing or criticize government policy. Id.
All of these individuals have an interest in maintaining the confidentiality of their communications—and all contribute centrally to Plaintiffs’ First Amendment activities. See German Decl. ¶ 23 (“Almost universally, potential whistleblowers seeking advice from me are seeking confidentiality as to both the fact and substance of our communications.”). The chilling effect of the mass call-tracking program is apparent: any person hoping to approach Plaintiffs with proof of official misconduct would be understandably wary knowing that the government receives, almost in real-time, a record of every telephone call. See id. ¶¶ 23–25, 28–30; Local 1814, 667 F.2d at 272 (recognizing that “[s]ome chilling effect . . . would be inevitable” from commission’s use of subpoena power to seize payroll records (citing cases)); Lamont v. Postmaster Gen., 381 U.S. 301, 307 (1965) (postal requirement that individuals collect communist propaganda in-person “almost certain to have a deterrent effect”). Collection of these calling records would allow the government to uncover anonymous tips or attempts by individuals to privately share sensitive information with Plaintiffs. See German Decl. ¶ 28; id. ¶¶ 15–20 (discussing the various forms of retaliation whistleblowers often face for reporting government misconduct); McIntyre, 514 U.S. at 341–42 (“The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.”); Talley v. California, 362 U.S. 60, 64 (1960) (finding self-evident the fact that ordinance prohibiting anonymous handbills “would tend to restrict freedom to distribute information and thereby freedom of
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expression”). In short, the mass call-tracking program aggregates in a government database

sensitive information about Plaintiffs’ contacts with often-wary sources. The government’s call

logging will inhibit and deter vital sources of information for Plaintiffs’ work. See German Decl.

¶¶ 29–32; Shapiro Decl. ¶ 8; Dunn Decl. ¶ 9; NAACP, 357 U.S. at 462–63; Presbyterian Church

(U.S.A.) v. United States, 870 F.2d 518, 521–23 (9th Cir. 1989).

3.

The mass call-tracking program fails “exacting scrutiny” because it is

an unduly broad means of seeking foreign-intelligence information.

Given these imposing burdens, the government’s mass call-tracking program cannot

withstand exacting scrutiny. Even “‘justifiable governmental goals may not be achieved by

unduly broad means having an unnecessary impact on protected rights of speech, press, or

association.’” In re Grand Jury Proceedings, 776 F.2d at 1102–03 (quoting Branzburg v. Hayes,

408 U.S. 665, 680–81 (1972)); see also In re Grand Jury Subpoena, 701 F.2d 115, 119 (10th Cir.

1983); Clark, 750 F.2d 89. But this is precisely the failing of the NSA’s indiscriminate collection

of call records: it is broad beyond all limits, and carries with it an unreasonable and unnecessary

invasion of First Amendment rights. Indeed, the program’s intrusion on associational privacy and

its chilling effect on protected expression are on a scale without ready comparison.

Certainly, the government has narrower methods that would serve the same ends. For

one, the FBI could readily tailor its collection of telephony metadata under Section 215 to the

investigation of terrorists, as the statute contemplates. See 50 U.S.C. § 1861. Properly anchored

to a specific investigation, a demand for phone records under Section 215 could satisfy the

exacting-scrutiny standard. Intelligence officials have indicated that, in 2012, the NSA queried

the countless call records in its database using fewer than 300 identifiers, such as telephone

numbers. See Ellen Nakashima, Call Records of Fewer Than 300 People Were Searched in 2012,

U.S. Says, Wash. Post, June 15, 2013, http://wapo.st/159gMvT. While the government has

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recited this figure to imply restraint, it is in reality proof that these phone records could be obtained on a case-by-case basis.
Moreover, Section 215 is not the only tool at the government’s disposal; the government has other means of obtaining call records genuinely relevant to its investigative needs. See, e.g., 50 U.S.C. § 1842 (FISA’s “pen register” and “trap and trace” provision); 18 U.S.C. § 2709 (“national security letter” authority to demand telephony metadata “relevant to” certain investigations); 18 U.S.C. §§ 3122, 3125 (“pen register” or “trap and trace” device for criminal investigations); 18 U.S.C. § 2703(d) (court order for stored telephone records); Fed. R. Crim. P. 17(c) (subpoena); U.S. Const. amend. IV (search warrant). Rather than using any of these calibrated tools, however, government officials appear to believe that storing all call records is an appropriate prophylactic step given the possibility that some small subset might become useful in the future.
Yet members of the Senate Select Committee on Intelligence—which oversees the mass call-tracking program—have indicated that the available alternatives are every bit as effective. Shortly after the program was disclosed, Senators Ron Wyden and Mark Udall stated:
After years of review, we believe statements that this very broad Patriot Act collection [of phone records] has been “a critical tool in protecting the nation” do not appear to hold up under close scrutiny. We remain unconvinced that the secret Patriot Act collection has actually provided any uniquely valuable intelligence. As far as we can see, all of the useful information that it has provided appears to have also been available through other collection methods that do not violate the privacy of law-abiding Americans in the way that the Patriot Act collection does. Press Release, Office of Sen. Ron Wyden, Wyden, Udall Question the Value and Efficacy of Phone Records Collection in Stopping Attacks, June 7, 2013, http://1.usa.gov/19Q1Ng1 (emphasis added). The Senators could not be clearer: the government has more modest alternatives at its disposal, which would produce the same intelligence value while vacuuming up far fewer phone records.
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Finally, the program imposes a heavy and immediate burden on Plaintiffs’ First Amendment rights. In cases where investigative methods unnecessarily invade First Amendment rights, the Second Circuit has approved significant narrowing of government demands for information. In Local 1814, the Second Circuit found that a subpoena compelling disclosure of union members’ payroll records would have an “inevitable chilling effect” on the organization’s activities. 667 F.2d at 273–74. Accordingly, the Court narrowed the subpoena, whittling it down from the 450 names sought to a subset of only 45. This modification, the Second Circuit held, would “appropriately limit the impairment of longshoremen’s First Amendment rights without compromising the Commission’s legitimate investigative needs.” Id. at 274; see also Bursey v. United States, 466 F.2d 1059, 1083 (9th Cir. 1972), overruled in part on other grounds, In re Grand Jury Proceedings, 863 F.2d 667, 669–70 (9th Cir. 1988) (affirming refusal to answer grand-jury questions on First Amendment grounds where the interrogation bore no “substantial connection to the compelling subject matter of the investigation”); In re Grand Jury Subpoena, 701 F.2d at 119 (remanding for evidentiary hearing to determine whether subpoena would chill associational rights and, if so, whether breadth of subpoena could be limited); United States v. Citizens Bank, 612 F.2d 1091, 1094–95 (8th Cir. 1980).
The mass call-tracking program fails the First Amendment test set out in every one of these cases: it reaches far beyond the government’s legitimate investigative ends, while needlessly encroaching on Plaintiffs’ freedom of association and expression. II. Plaintiffs will suffer irreparable injury if preliminary relief is withheld.
Plaintiffs assert injuries flowing from the mass call-tracking program’s violation of their Fourth and First Amendment rights as well as the program’s violation of Section 215. The Second Circuit has generally presumed irreparable harm where there is an alleged deprivation of constitutional rights. See, e.g., Statharos v. N.Y. City Taxi & Limousine Comm’n, 198 F.3d 317,
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322 (2d Cir. 1999) (finding “no separate showing of irreparable harm is necessary” in case involving alleged invasion of privacy “[b]ecause plaintiffs allege deprivation of a constitutional right”); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984); Public Serv. Co. of N.H. v. Town of W. Newbury, 835 F.2d 380, 382 (1st Cir. 1987) (observing that presumption of irreparable harm is commonly applied in “cases involving alleged infringements of free speech, association, privacy, or other rights as to which temporary deprivation is viewed of such qualitative importance as to be irremediable by any subsequent relief”); see also Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992) (applying presumption of irreparable harm in case alleging Fourth Amendment violations); Ligon v. City of N.Y., No. 12 Civ. 2274, 2013 WL 628534, at *39 (S.D.N.Y. Feb. 14, 2013) (same); Bray v. City of N.Y., 346 F. Supp. 2d 480, 489 (S.D.N.Y. 2004) (Pauley, J.) (finding plaintiffs’ allegation of Fifth Amendment injury satisfied irreparable-harm requirement).21
Here, Plaintiffs would satisfy the irreparable-harm standard even if the presumption did not apply. The continuation of the surveillance at issue here would involve the continuation of the government’s intrusion into Plaintiffs’ sensitive associations and communications. The courts have repeatedly held that the compelled disclosure of sensitive information constitutes irreparable injury. See Hirschfeld v. Stone, 193 F.R.D. 175, 185–86 (S.D.N.Y. 2000) (Pauley, J.) (finding that disclosure of individual “medical histories, HIV status, substance abuse, and other intimate details of their personal lives” constitutes irreparable injury); Slevin v. City of N.Y., 477
21 The Second Circuit has modified this presumption when examining certain First Amendment injuries: irreparable harm may be presumed “[w]here a plaintiff alleges injury from a rule or regulation that directly limits speech,” but “where a plaintiff alleges injury from a rule or regulation that may only potentially affect speech, the plaintiff must establish a causal link between the injunction sought and the alleged injury.” Bronx Household of Faith v. Bd. of Educ. of City of N.Y., 331 F.3d 342, 349–50 (2d Cir. 2003); see Bray, 346 F. Supp. 2d at 487–89 (distinguishing First and Fifth Amendment irreparable-harm analyses).
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F. Supp. 1051, 1052 (S.D.N.Y. 1979) (finding that compelled disclosure of financial records constitutes irreparable harm); see also Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981) (“[T]he right of privacy must be carefully guarded for once an infringement has occurred it cannot be undone by monetary relief.”). When the government takes this private information for its own purposes, the injury is immediate—it is complete as soon as the government interjects itself into the zone of privacy. Cf. United States v. Head, 416 F. Supp. 840, 843 (S.D.N.Y. 1976) (zone of privacy includes areas “in which an individual has a reasonable expectation that governmental forces will not intrude”). The government’s queries in its call-records database compound this injury. Each time the government queries the database for any identifier, it analyzes Plaintiffs’ calling records in order to determine whether there are matches. Thus, any query involves inspection of Plaintiffs’ phone records; indeed, the government is collecting these records precisely because it wishes to sift through them for contacts within one, two, or three hops of its targets. These queries inevitably expose Plaintiffs’ sensitive information and associational contacts to government scrutiny, see supra Parts I.B.1, I.C, and the resulting invasion of privacy is an injury that cannot be undone.
The government’s searches of the mass call-tracking database work a further irreparable injury: they impose a far-reaching chill on Plaintiffs’ First Amendment activities by discouraging vital sources of information from coming forward. See supra Part I.C. Plaintiffs, through their declarations, have demonstrated that the mass call-tracking program promises to deter whistleblowers, potential clients, and others who reasonably fear being identified by the government. The NSA’s collection and searching of Plaintiff’s call records is the direct cause of this chilling effect, and the ongoing damage to Plaintiffs’ advocacy, public-interest litigation, and
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legislative efforts cannot be remedied after the fact. See Mullins v. City of N.Y., 634 F. Supp. 2d

373, 392 (S.D.N.Y. 2009).

CONCLUSION

For the foregoing reasons, the Court should grant Plaintiffs’ motion and enter a

preliminary injunction that, during the pendency of this suit, (i) bars Defendants from collecting

Plaintiffs’ call records under the mass call-tracking program, (ii) requires Defendants to

quarantine all of Plaintiffs’ call records already collected under the program, and (iii) prohibits

Defendants from querying metadata obtained through the program using any phone number or

other identifier associated with Plaintiffs.

Respectfully submitted,

Christopher T. Dunn (CD-3991) Arthur N. Eisenberg (AE-2012) New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, NY 10004 Phone: (212) 607-3300 Fax: (212) 607-3318 aeisenberg@nyclu.org

/s/ Jameel Jaffer Jameel Jaffer (JJ-4653) Alex Abdo (AA-0527) Brett Max Kaufman (BK-2827) Patrick Toomey (PT-1452) Catherine Crump (CC-4067) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 jjaffer@aclu.org

August 26, 2013

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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

Plaintiffs, v.

DECLARATION OF PROFESSOR
EDWARD W. FELTEN

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

Case No. 13-cv-03994 (WHP) ECF CASE

Defendants.

DECLARATION OF PROFESSOR EDWARD W. FELTEN I, Edward W. Felten, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct: 1. The plaintiffs in this lawsuit have challenged what they term the “mass call-tracking” program of the National Security Agency, and they have asked me to explain the sensitive nature of metadata, particularly when obtained in the aggregate. Below, I discuss how advances in technology and the proliferation of metadata-producing devices, such as phones, have produced rich metadata trails. Many details of our lives can be gleaned by examining those trails, which often yield information more easily than do the actual content of our communications.

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Superimposing our metadata trails onto the trails of everyone within our social group and those of everyone within our contacts’ social groups, paints a picture that can be startlingly detailed. 2. I emphasize that I do not in this declaration pass judgment on the use of metadata analysis in the abstract. It can be an extraordinarily valuable tool. But because it can also be an unexpectedly revealing one—especially when turned to the communications of virtually everyone in the country—I write in the hope that courts will appreciate its power and control its use appropriately.
Biography 3. My name is Edward W. Felten. I am Professor of Computer Science and Public Affairs, as well as Director of the Center for Information Technology Policy, at Princeton University. 4. I received a Bachelor of Science degree in Physics from the California Institute of Technology in 1985, a Master’s degree in Computer Science and Engineering from the University of Washington in 1991, and a Ph.D. in the same field from the University of Washington in 1993. I was appointed as an Assistant Professor of Computer Science at Princeton University in 1993, and was promoted to Associate Professor in 1999 and to full Professor in 2003. In 2006, I received an additional faculty appointment to Princeton’s Woodrow Wilson School of Public and International Affairs. 5. I have served as a consultant or technology advisor in the field of computer science for numerous companies, including Bell Communications Research, International Creative Technologies, Finjan Software, Sun Microsystems, FullComm and Cigital. I have authored numerous books, book chapters, journal articles, symposium articles, and other publications relating to computer science. Among my peer-reviewed publications are papers on the inference
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of personal behavior from large data sets1 and everyday objects,2 as well as work on the extraction of supposedly protected information from personal devices.3 6. I have testified several times before the United States Congress on computer technology issues. 7. In 2011 and 2012, I served as the first Chief Technologist at the U.S. Federal Trade Commission (“FTC”). In that capacity, I served as a senior policy advisor to the FTC Chairman, participated in numerous civil law enforcement investigations, many of which involved privacy issues, and acted as a liaison to the technology community and industry. My privacy-related work at the FTC included participating in the creation of the FTC’s major privacy report issued in March 2012,4 as well as advising agency leadership and staff on rulemaking, law enforcement, negotiation of consent orders, and preparation of testimony. 8. Among my professional honors are memberships in the National Academy of Engineering and the American Academy of Arts and Sciences. I am also a Fellow of the Association of Computing Machinery. A copy of my curriculum vitae is attached as Exhibit 1 to this declaration.
1 Joseph A. Calandrino, Ann Kilzer, Arvind Narayanan, Edward W. Felten & Vitaly Shmatikov, “You Might Also Like:” Privacy Risks of Collaborative Filtering, Proceedings of IEEE Symposium on Security and Privacy (May 2011), http://bit.ly/kUNh4c.
2 William Clarkson, Tim Weyrich, Adam Finkelstein, Nadia Heninger, J. Alex Halderman & Edward W. Felten, Fingerprinting Blank Paper Using Commodity Scanners, Proceedings of IEEE Symposium on Security and Privacy (May 2009), http://bit.ly/19AoMej.
3 J. Alex Halderman, Seth D. Schoen, Nadia Heninger, William Clarkson, William Paul, Joseph A. Calandrino, Ariel J. Feldman, Jacob Appelbaum & Edward W. Felten, Lest We Remember: Cold Boot Attacks on Encryption Keys, Proceedings of USENIX Security Symposium (August 2008), http://bit.ly/13Ux38w.
4 Federal Trade Commission, Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers (March 2012), http://1.usa.gov/HbhCzA.
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The Mass Call Tracking Program 9. On June 5, 2013, The Guardian disclosed an order issued by the Foreign Intelligence Surveillance Court (“FISC”) pursuant to Section 215 of the Patriot Act (the “Verizon Order”).5
This order compelled a Verizon subsidiary, Verizon Business Network Services (“Verizon”), to
produce to the National Security Agency (“NSA”) on “an ongoing daily basis . . . all call detail
records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”6 The
Director of National Intelligence subsequently acknowledged the authenticity of the Verizon Order.7
10. Following the disclosure of the Verizon Order, government officials indicated that the
NSA’s acquisition of call detail records is not limited to customers or subscribers of Verizon. In
particular, the NSA’s collection of this data encompasses telephone calls carried by the country’s three largest phone companies: Verizon, AT&T, and Sprint.8 Because these companies provide
at least one end of the vast majority of telecommunications connectivity in the country, these
5 Secondary Order, In re Application of the FBI for an Order Requiring the Production of Tangible Things from Verizon Bus. Network Servs., Inc. on Behalf of MCI Commc’n Servs., Inc. d/b/a Verizon Bus. Servs., No. BR 13-80 at 2 (FISA Ct. Apr. 25, 2013), available at http://bit.ly/11FY393.
6 Id. at 2 (emphasis added). 7 James R. Clapper, DNI Statement on Recent Unauthorized Disclosures of Classified Information, Office of the Director of National Intelligence (June 6, 2013), http://1.usa.gov/13jwuFc. 8 See Siobhan Gorman et al., U.S. Collects Vast Data Trove, Wall St. J., June 7, 2013, http://on.wsj.com/11uD0ue (“The arrangement with Verizon, AT&T and Sprint, the country’s three largest phone companies means, that every time the majority of Americans makes a call, NSA gets a record of the location, the number called, the time of the call and the length of the conversation, according to people familiar with the matter. . . . AT&T has 107.3 million wireless customers and 31.2 million landline customers. Verizon has 98.9 million wireless customers and 22.2 million landline customers while Sprint has 55 million customers in total.”).
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statements suggest that the NSA is maintaining a record of the metadata associated with nearly every telephone call originating or terminating in the United States. 11. Assuming that there are approximately 3 billion calls made every day in the United States, and also assuming conservatively that each call record takes approximately 50 bytes to store, the mass call tracking program generates approximately 140 gigabytes of data every day, or about 50 terabytes of data each year. 12. Assuming (again conservatively) that a page of text takes 2 kilobytes of storage, the program generates the equivalent of about 70 million pages of information every day, and about 25 billion pages of information every year. 13. Members of Congress have disclosed that this mass call tracking program has been in place for at least seven years, since 2006.9 14. On July 19, 2013, the day that the Verizon Order was set to expire, the Director of National Intelligence disclosed that the FISC had renewed the NSA’s authority to collect telephony metadata in bulk.10 15. As noted above, the Verizon Order requires the production of “call detail records” or “telephony metadata.” According to the order itself, that term encompasses, among other things, the originating and terminating telephone number and the time and duration of any call. Call detail records also typically include information about the location of the parties to the call. See 47 C.F.R. § 64.2003 (2012) (defining “call detail information” as “[a]ny information that
9 See Dan Roberts & Spencer Ackerman, Senator Feinstein: NSA Phone Call Data Collection in Place ‘Since 2006,’ Guardian, June 6, 2013, http://bit.ly/13rfxdu; id. (Senator Saxby Chambliss: “This has been going on for seven years.”); see also ST-09-0002 Working Draft – Office of the Inspector General, National Security Agency & Central Security Service (Mar. 24, 2009), http://bit.ly/14HDGuL.
10 Press Release, Foreign Intelligence Surveillance Court Renews Authority to Collect Telephony Metadata, Office of the Director of National Intelligence (July 19, 2013), http://1.usa.gov/12ThYlT.
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pertains to the transmission of specific telephone calls, including, for outbound calls, the number called, and the time, location, or duration of any call and, for inbound calls, the number from which the call was placed and the time, location, or duration of any call”). 16. Although this latter definition of “call detail information” includes data identifying the location where calls are made or received, I will not address mobile phone location information in this declaration. While senior intelligence officials have insisted that they have the legal authority under Section 215 to collect mobile phone location information, they have stated that the NSA is not collecting phone location information “under this program.”11 17. The information sought from Verizon also includes “session identifying information”— e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc. These are unique numbers that identify the user or device that is making or receiving a call. Although users who want to evade surveillance can make it difficult to connect these numbers to their individual identities, for the vast majority of ordinary users these numbers can be connected to the specific identity of the user and/or device. 18. The information sought from Verizon also includes the “trunk identifier” of telephone calls. This provides information about how a call was routed through the phone network, which naturally reveals information about the location of the parties. For example, even if the government never obtains cell site location information about a call,12 trunk identifier
11 See Siobhan Gorman & Julian E. Barnes, Officials: NSA Doesn’t Collect CellphoneLocation Records, Wall St. J., June 16, 2013, http://on.wsj.com/13MnSsp; Pema Levy, NSA FISA Metadata Surveillance: Is The Government Using Cell Phones To Gather Location Data?, Int’l Bus. Times, Aug. 2, 2013, http://bit.ly/18WKXOV.
12 Cell site location information (“CSLI”) reflects the cell tower and antenna sector a phone is connected to when communicating with a wireless carrier’s network. Most carriers log and retain CSLI for the start and end of each call made or received by a phone, and some carriers log CSLI
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information revealing that a domestic call was carried by a cable from Hawaii to the mainland
United States will reveal that the caller was in the state of Hawaii at the time the call was placed.
19. In the present case, government officials have stated that the NSA retains telephony metadata gathered under the Verizon Order, and others similar to it, for five years.13 Although
officials have insisted that the orders issued under the telephony metadata program do not
compel the production of customers’ names, it would be trivial for the government to correlate
many telephone numbers with subscriber names using publicly available sources. The
government also has available to it a number of legal tools to compel service providers to produce their customer’s information, including their names.14
Metadata Is Easy to Analyze 20. Telephony metadata is easy to aggregate and analyze. Telephony metadata is, by its
nature, structured data. Telephone numbers are standardized, and are expressed in a predictable
format: In the United States, a three digit area code, followed by a three digit central office
exchange code, and then a four digit subscriber number. Likewise, the time and date information
for text messages and data connections as well. Wireless carriers can also obtain CSLI by “pinging” a phone whenever it is turned on, even if it is not engaged in an active call. The precision of CSLI varies according to several factors, and “[f]or a typical user, over time, some of that data will inevitably reveal locational precision approaching that of GPS.” The Electronic Communications Privacy Act (ECPA), Part 2: Geolocation Privacy and Surveillance: Hearing Before the Subcomm. on Crime, Terrorism, Homeland Sec. & Investigations of the H. Comm. On the Judiciary, 113th Cong. (2013) (statement of Matt Blaze, Associate Professor, University of Pennsylvania), http://1.usa.gov/1awvgOa.
13 See Letter from Ronald Weich, Assistant Attorney General, to Hon. Dianne Feinstein & Hon. Saxby Chambliss, Feb. 2, 2011, http://1.usa.gov/1cdFJ1G (enclosing Report on the National Security Agency’s Bulk Collection Programs for USA PATRIOT Act Reauthorization); Siobhan Gorman & Julian E. Barnes, Officials: NSA Doesn’t Collect Cellphone-Location Records, Wall St. J., June 16, 2013, http://on.wsj.com/13MnSsp.
14 See 18 U.S.C. § 2709 (national security letter); 18 U.S.C. § 2703(c), (d) (court order for records concerning electronic communication service).
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associated with the beginning and end of each call will be stored in a predictable, standardized format. 21. By contrast, the contents of telephone calls are not structured. Some people speak English, others Spanish, French, Mandarin, or Arabic. Some people speak using street slang or in a pidgin dialect, which can be difficult for others to understand. Conversations also lack a common structure: Some people get straight to the point, others engage in lengthy small talk. Speakers have different accents, exhibit verbal stutters and disfluencies. Although automated transcription of speech has advanced, it is still a difficult and error-prone process. 22. In contrast, the structured nature of metadata makes it very easy to analyze massive datasets using sophisticated data-mining and link-analysis programs. That analysis is greatly facilitated by technological advances over the past 35 years in computing, electronic data storage, and digital data mining. Those advances have radically increased our ability to collect, store, and analyze personal communications, including metadata. 23. Innovations in electronic storage today permit us to maintain, cheaply and efficiently, vast amounts of data. The ability to preserve data on this scale is, by itself, an unprecedented development—making possible the maintenance of a digital history that was not previously within the easy reach of any individual, corporation, or government. 24. This newfound data storage capacity has led to new ways of exploiting the digital record. Sophisticated computing tools permit the analysis of large datasets to identify embedded patterns and relationships, including personal details, habits, and behaviors. As a result, individual pieces of data that previously carried less potential to expose private information may now, in the aggregate, reveal sensitive details about our everyday lives—details that we had no intent or expectation of sharing.
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25. IBM’s Analyst’s Notebook and Pen-Link are two such computing tools. Both are widely
used by law enforcement and intelligence agencies for this purpose.15
26. IBM’s Analyst Notebook product is a multi-purpose intelligence analysis tool that
includes specific telephony metadata analysis features, which are “routinely” used to analyze
large amounts of telephony metadata.16 IBM even offers training courses entirely focused on
using Analyst’s Notebook to analyze telephone call records.17
27. Pen-Link is a tool that is purpose-built for processing and analyzing surveillance data. It
is capable of importing subscriber Call Detail Record (“CDR”) data from the proprietary formats
15 Public Safety & Law Enforcement Operations, International Business Machines (last visited Aug. 22, 2013), http://ibm.co/1avGItq (“IBM® i2® solutions help law enforcers to turn huge volumes of crime data into actionable insights by delivering tools for tactical lead generation, intelligence analysis, crime analysis and predictive analysis.”); see also Defense and National Security Operations, International Business Machines (last visited Aug. 22, 2013), http://ibm.co/18nateN (“IBM i2 solutions for military and national security organizations have been used across the world to process and analyze the vast quantities of information that they collect, to generate actionable intelligence and to share insights that help identify, predict and prevent hostile threats.”); see also Pen-Link, Unique Features of Pen-Link v8 at 16 (April 17, 2008), http://bit.ly/153ee9g (“Many U.S. Federal Law Enforcement and Intelligence agencies have acquired agency-wide site license contracts for the use of Pen-Link in their operations throughout the United States…Pen-Link systems are also becoming more frequently used by U.S. intelligence efforts operating in several other countries.”).
16 Case Studies: Edith Cowan University, IBM i2 Solutions Help University Researchers Catch a Group of Would-Be Hackers, International Business Machines (Mar. 27, 2013), http://ibm.co/13J2o36 (“Analyzing this volume of data is nothing new to many law enforcement users who routinely analyze tens of thousands of telephone records using IBM® i2® Analyst’s Notebook®.”).
17 Course Description: Telephone Analysis Using i2 Analyst’s Notebook, International Business Machines (last visited Aug. 22, 2013), http://ibm.co/1d5QlB8 (“This intermediate hands-on 3-day workshop focuses on the techniques of utilizing i2 Analyst's Notebook to conduct telephone toll analysis…Learn to import volumes of call detail records from various phone carriers, analyze those records and identify clusters and patterns in the data. Using both association and temporal charts, discover how to use different layouts and more advanced tools to analyze telephonic data quickly and effectively.”).
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used by the major telephone companies,18 it can import and export call data to several federal surveillance databases,19 as well as interact with commercial providers of public records databases such as ChoicePoint and LexisNexis. Pen-Link can perform automated “call pattern analysis,” which “automatically identifies instances where particular sequences of calls occur, when they occur, how often they occur, and between which numbers and names.”20 As the company notes in its own marketing materials, this feature “would help the analyst determine how many times Joe paged Steve, then Steve called Barbara, then Steve called Joe back.”21
Figure 1: Screenshot of IBM’s Analyst Notebook.22
18 See Pen-Link, Unique Features of Pen-Link v8 at 4 (Apr. 17, 2008), http://bit.ly/153ee9g (describing the capability to import 170 different data formats, used by phone companies to provide call detail records).
19 Id. at 4. 20 Id. at 7. 21 Id. 22 Image taken from Data Analysis and Visualization for Effective Intelligence Analysis, International Business Machines (last visited Aug. 22, 2013), http://ibm.co/16qT3hw.
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28. The contents of calls are far more difficult to analyze in an automated fashion due to their unstructured nature. The government would first have to transcribe the calls and then determine which parts of the conversation are interesting and relevant. Assuming that a call is transcribed correctly, the government must still try to determine the meaning of the conversation: When a surveillance target is recorded saying “the package will be delivered next week,” are they talking about an order they placed from an online retailer, a shipment of drugs being sent through the mail, or a terrorist attack? Parsing and interpreting such information, even when performed manually, is exceptionally difficult. To do so in an automated way, transcribing and data-mining the contents of hundreds of millions of telephone calls per day is an even more difficult task. 29. It is not surprising, then, that intelligence and law enforcement agencies often turn first to metadata. Examining metadata is generally more cost-effective than analyzing content. Of course, the government will likely still have analysts listen to every call made by the highestvalue surveillance targets, but the resources available to the government do not permit it to do this for all of the calls of 300 million Americans.
The Creation of Metadata Is Unavoidable 30. As a general matter, it is practically impossible for individuals to avoid leaving a metadata trail when engaging in real-time communications, such as telephone calls or Internet voice chats. 31. After decades of research (much of it supported by the U.S. government), there now exist many tools that individuals and organizations can use to protect the confidentiality of their communications content. Smartphone applications are available that let individuals make encrypted telephone calls and send secure text messages.23 Freely available software can be used
23 Somini Sengupta, Digital Tools to Curb Snooping, N.Y. Times, July 17, 2013, http://nyti.ms/12JKz1s (describing RedPhone and Silent Circle).
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to encrypt email messages and instant messages sent between computers, which can frustrate government surveillance efforts traditionally performed by intercepting communications as they are transmitted over the Internet. 32. However, these secure communication technologies protect only the content of the conversation and do not protect the metadata. Government agents that intercept an encrypted email may not know what was said, but they will be able to learn the email address that sent the message and the address that received it as well as the size of the message and when it was sent. Likewise, Internet metadata can reveal the parties making an encrypted audio call and the time and duration of the call, even if the voice contents of the call are beyond the reach of a wiretap. 33. There also exist security technologies specifically designed to hide metadata trails, but those technologies do not work quickly enough to allow real-time communication. The general technique for hiding the origin and destination information for an internet communication involves sending data through a series of intermediaries before it reaches the destination, thus making it more difficult for an entity such as a government agency to learn both the source and destination of the communication. (Such data is conventionally encrypted so that the intermediaries cannot capture it; and a series of intermediaries is used so that no one intermediary knows the identities of both endpoints.) 34. The most popular and well-studied of these metadata hiding systems is The Tor Project, which was originally created by the U.S. Naval Research Lab, and has since received significant funding from the State Department. One significant and widely acknowledged limitation of Tor is the noticeable delay introduced by using the tool. Web browsing conducted through Tor is much slower than through a direct connection to the Internet, as all data must be sent through a series of Tor relays, located in different parts of the world. These volunteer-run relays are
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oversubscribed—that is, the demands on the few relays from hundreds of thousands of Tor users are greater than the relays can supply, leading to slowdowns due to “traffic jams” at the relay. 35. Browsing the web using Tor can be painfully slow, in some cases requiring several seconds or longer to load a page. Real-time audio and video communications require a connection with minimal delay, which Tor cannot deliver. Internet telephony and video conferencing services are simply unusable over metadata-protecting systems like Tor. 36. As a result, although individuals can use security technologies to protect the contents of their communications, there exist significant technical barriers that make it difficult, if not impossible, to hide communications metadata, particularly for real-time communications services like Internet telephony and video conferencing. 37. Over the last three decades, and especially with the widespread adoption of mobile phones in the past decade, our reliance on telecommunications has significantly increased. Mobile phones are today ubiquitous, and their use necessarily requires reliance on a service provider to transmit telephone calls, text messages, and other data to and fro. These communications inevitably produce telephony metadata, which is created whenever a person places a call. There is no practical way to prevent the creation of telephony metadata, or to erase it after the fact. The only reliable way to avoid creating such metadata is to avoid telephonic communication altogether.
Telephony Metadata Reveals Content 38. Telephony metadata can be extremely revealing, both at the level of individual calls and, especially, in the aggregate.
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39. Although this metadata might, on first impression, seem to be little more than
“information concerning the numbers dialed,”24 analysis of telephony metadata often reveals
information that could traditionally only be obtained by examining the contents of
communications. That is, metadata is often a proxy for content.
40. In the simplest example, certain telephone numbers are used for a single purpose, such
that any contact reveals basic and often sensitive information about the caller. Examples include
support hotlines for victims of domestic violence25 and rape,26 including a specific hotline for
rape victims in the armed services.27 Similarly, numerous hotlines exist for people considering
suicide,28 including specific services for first responders,29 veterans,30 and gay and lesbian
teenagers.31 Hotlines exist for suffers of various forms of addiction, such as alcohol,32 drugs, and
gambling.33
24 Administration White Paper, Bulk Collection of Telephony Metadata Under Section 215 of the USA Patriot Act 15 (Aug. 9, 2013), http://huff.to/1ey9ua5.
25 National Domestic Violence Hotline, The Hotline (last visited Aug. 22, 2013), http://www.thehotline.org.
26 National Sexual Assault Hotline, RAINN: Rape, Abuse & Incest National Network (last visited Aug. 22, 2013), http://www.rainn.org/get-help/national-sexual-assault-hotline.
27 About the Telephone Helpline, DOD Safe Helpline (last visited Aug. 22, 2013), https://www.safehelpline.org/about-safe-helpline.
28 District of Columbia/Washington D.C. Suicide & Crisis Hotlines, National Suicide Hotlines (last visited Aug. 22, 2013), http://www.suicidehotlines.com/distcolum.html.
29 Get Help Now! Contact us to Get Confidential Help via Phone or Email, Safe Call Now (last visited Aug. 22, 2013), http://safecallnow.org.
30 About the Veterans Crisis Line, Veterans Crisis Line (last visited Aug. 22, 2013), http://www.veteranscrisisline.net/About/AboutVeteransCrisisLine.aspx.
31 We Provide Crisis Intervention and Suicide Prevention for LGBTQ Youth, The Trevor Project (last visited Aug. 22, 2013), thttp://www.thetrevorproject.org.
32 Alcohol Addiction Helpline, Alcohol Hotline (last visited Aug. 22, 2013), http://www.alcoholhotline.com.
33 What is Problem Gambling?, National Council on Problem Gambling (last visited Aug. 22, 2013), http://bit.ly/cyosu.
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41. Similarly, inspectors general at practically every federal agency—including the NSA34— have hotlines through which misconduct, waste, and fraud can be reported, while numerous state tax agencies have dedicated hotlines for reporting tax fraud.35 Hotlines have also been established to report hate crimes,36 arson,37 illegal firearms38 and child abuse.39 In all these cases, the metadata alone conveys a great deal about the content of the call, even without any further information. 42. The phone records indicating that someone called a sexual assault hotline or a tax fraud reporting hotline will of course not reveal the exact words that were spoken during those calls, but phone records indicating a 30-minute call to one of these numbers will still reveal information that virtually everyone would consider extremely private. 43. In some cases, telephony metadata can reveal information that is even more sensitive than the contents of the communication. In recent years, wireless telephone carriers have partnered with non-profit organizations in order to permit wireless subscribers to donate to charities by sending a text message from their telephones. These systems require the subscriber to send a specific text message to a special number, which will then cause the wireless carrier to add that
34 Barton Gellman, NSA Statements to the Post, Wash. Post, Aug. 15, 2013, http://wapo.st/15LliAB.
35 Report Tax Fraud – Tax Fraud Hotline, North Carolina Department of Revenue (last visited Aug. 22, 2013), http://www.dor.state.nc.us/taxes/reportfraud.html.
36 Report Hate Crimes, LAMBDA GLBT Community Services (last visited Aug. 22, 2013), http://www.lambda.org/hatecr2.htm.
37 ATF Hotlines – Arson Hotline, Bureau of Alcohol, Tobacco, Firearms and Explosives (last visited Aug. 22, 2013), http://www.atf.gov/contact/hotlines/index.html.
38 ATF Hotlines – Report Illegal Firearms Activity, Bureau of Alcohol, Tobacco, Firearms and Explosives (last visited Aug. 22, 2013), http://www.atf.gov/contact/hotlines/index.html.
39 Childhelp National Child Abuse Hotline, Childhelp (last visited Aug. 22, 2013), http://www.childhelp.org/pages/hotline-home.
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donation to the subscriber’s monthly telephone bill. For example, by sending the word HAITI to 90999, a wireless subscriber can donate $10 to the American Red Cross. 44. Such text message donation services have proven to be extremely popular. Today, wireless subscribers can use text messages to donate to churches,40 to support breast cancer research,41 and to support reproductive services organizations like Planned Parenthood.42 Similarly, after a policy change in 2012 by the Federal Election Commission, political candidates like Barack Obama and Mitt Romney were able to raise money directly via text message.43 45. In all these cases, the most significant information—the recipient of the donation—is captured in the metadata, while the content of the message itself is less important. The metadata alone reveals the fact that the sender was donating money to their church, to Planned Parenthood, or to a particular political campaign. 46. Although it is difficult to summarize the sensitive information that telephony metadata about a single person can reveal, suffice it to say that it can expose an extraordinary amount about our habits and our associations. Calling patterns can reveal when we are awake and asleep; our religion, if a person regularly makes no calls on the Sabbath, or makes a large number of calls on Christmas Day; our work habits and our social aptitude; the number of friends we have; and even our civil and political affiliations.
40 Several Ways to Give, The Simple Church (2013), http://bit.ly/1508Mgw; Other Ways to Give, North Point Church (last visited Aug. 22, 2013), http://bit.ly/16S3IkO.
41 Donate by Text, Susan G. Komen for the Cure (last visited Aug. 22, 2013), http://sgk.mn/19AjGP7.
42 Help Support a New Future for Illinois Women and Families, Planned Parenthood of Illinois (last visited Aug. 22, 2013), http://bit.ly/1bXI2TX.
43 Dan Eggen, Text to ‘GIVE’ to Obama: President’s Campaign Launches Cellphone Donation Drive, Wash. Post, Aug. 23, 2012, http://bit.ly/16ibjCZ.
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Aggregated Telephony Metadata Is Even More Revealing 47. When call metadata is aggregated and mined for information across time, it can be an even richer repository of personal and associational details. 48. Analysis of metadata on this scale can reveal the network of individuals with whom we communicate—commonly called a social graph. By building a social graph that maps all of an organization’s telephone calls over time, one could obtain a set of contacts that includes a substantial portion of the group’s membership, donors, political supporters, confidential sources, and so on. Analysis of the metadata belonging to these individual callers, by moving one “hop” further out, could help to classify each one, eventually yielding a detailed breakdown of the organization’s associational relationships. 49. For instance, metadata can help identify our closest relationships. Two people in an intimate relationship may regularly call each other, often late in the evening. If those calls become less frequent or end altogether, metadata will tell us that the relationship has likely ended as well—and it will tell us when a new relationship gets underway. More generally, someone you speak to once a year is less likely to be a close friend than someone you talk to once a week. 50. Even our relative power and social status can be determined by calling patterns. As The Economist observed in 2010, “People at the top of the office or social pecking order often receive quick callbacks, do not worry about calling other people late at night and tend to get more calls at times when social events are most often organized (sic), such as Friday afternoons.”44
44 Mining Social Networks: Untangling the Social Web, Economist, Sep. 2, 2010, http://econ.st/9iH1P7.
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51. At times, by placing multiple calls in context, metadata analysis can even reveal patterns and sensitive information that would not be discoverable by intercepting the content of an individual communication. 52. Consider the following hypothetical example: A young woman calls her gynecologist; then immediately calls her mother; then a man who, during the past few months, she had repeatedly spoken to on the telephone after 11pm; followed by a call to a family planning center that also offers abortions. A likely storyline emerges that would not be as evident by examining the record of a single telephone call. 53. Likewise, although metadata revealing a single telephone call to a bookie may suggest that a surveillance target is placing a bet, analysis of metadata over time could reveal that the target has a gambling problem, particularly if the call records also reveal a number of calls made to payday loan services. 54. With a database of telephony metadata reaching back five years, many of these kinds of patterns will emerge once the collected phone records are subjected to even the most basic analytic techniques. 55. With an organization such as the ACLU, aggregated metadata can reveal sensitive information about the internal workings of the organization and about its external associations and affiliations. The ACLU’s metadata trail reflects its relationships with its clients, its legislative contacts, its members, and the prospective whistleblowers who call the organization. Second-order analysis of the telephony metadata of the ACLU’s contacts would then reveal even greater details about each of those contacts. For example, if a government employee suddenly begins contacting phone numbers associated with a number of news organizations and then the ACLU and then, perhaps, a criminal defense lawyer, that person’s identity as a prospective
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whistleblower could be surmised. Or, if the government studied the calling habits of the ACLU’s members, it could assemble a detailed profile of the sorts of individuals who support the ACLU’s mission. 56. I understand from the plaintiffs that they sometimes represent individuals in so-called “John Doe” lawsuits, where the individuals filing suit request anonymity—and are granted it by the courts—because they are juveniles or because they wish to conceal sensitive medical or psychiatric conditions. In such cases, analysis of aggregated metadata might reveal the anonymous litigant. If, for example, the lawyers in the case have only a handful of contacts in common other than mutual co-workers, and one or more of the lawyers generally call the same one of those common contacts shortly before or after hearings or deadlines in the lawsuit, this would imply the identity of the anonymous litigant. If the attorneys’ calling patterns suggest more than one possible identity for the “John Doe,” metadata analysis of the candidate individuals could verify the identity of the “John Doe,” by correlating facts about the individuals with facts detailed in the lawsuit—for example, that he lives in a particular area (based on the area code of his phone or those of the majority of his contacts), that he has a particular job (based on calls made during work hours), that he has a particular medical condition (based on calls to medical clinics or specialists), or that he holds particular religious or political views (based on telephone donations, calls to political campaigns, or contact with religious organizations). 57. Metadata analysis could even expose litigation strategies of the plaintiffs. Review of the ACLU’s telephony metadata might reveal, for example, that lawyers of the organization contacted, for example, an unusually high number of individuals registered as sex offenders in a particular state; or a seemingly random sample of parents of students of color in a racially
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segregated school district; or individuals associated with a protest movement in a particular city or region. 58. In short, aggregated telephony metadata allows the government to construct social graphs and to study their evolution and communications patterns over days, weeks, months, or even years. Metadata analysis can reveal the rise and fall of intimate relationships, the diagnosis of a life-threatening disease, the telltale signs of a corporate merger or acquisition, the identity of a prospective government whistleblower, the social dynamics of a group of associates, or even the name of an anonymous litigant.
Mass Collection of Metadata and Data-Mining Across Many Individuals 59. Advances in the area of “Big Data” over the past few decades have enabled researchers to observe even deeper patterns by mining large pools of metadata that span many telephone subscribers. 60. Researchers have studied databases of call records to analyze the communications reciprocity in relationships,45 the differences in calling patterns between mobile and landline subscribers,46 and the social affinity and social groups of callers.47 61. Researchers have discovered that individuals have unique calling patterns, regardless of which telephone they are using,48 they have figured out how to predict the kind of device that is
45 Lauri Kovanen, Jari Saramaki & Kimmo Kaski, Reciprocity of Mobile Phone Calls, Dynamics of Socio-Economic Systems (Feb. 3, 2010), http://arxiv.org/pdf/1002.0763.pdf.
46 Heath Hohwald, Enrique Frias-Martinez & Nuria Oliver, User Modeling for Telecommunication Applications: Experiences and Practical Implications 8, (Data Mining and User Modeling Group, Telefonica Research, 2013), http://bit.ly/1d7WkUU (“Interestingly, Monday is the day with most calls for landline users, while Friday is the day with most calls for mobile users. . . Mobile users spend less time on the phone than landline users.”).
47 Sara Motahari, Ole J. Mengshoel, Phyllis Reuther, Sandeep Appala, Luca Zoia & Jay Shah, The Impact of Social Affinity on Phone Calling Patterns: Categorizing Social Ties from Call Data Records, The 6th SNA-KDD Workshop (Aug. 12, 2012), http://b.gatech.edu/1d6i4RY.
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making the calls (a telephone or a fax machine),49 developed algorithms capable of predicting whether the phone line is used by a business or for personal use,50 identified callers by social group (workers, commuters, and students) based on their calling patterns,51 and even estimated the personality traits of individual subscribers.52
62. The work of these researchers suggests that the power of metadata analysis and its
potential impact upon the privacy of individuals increases with the scale of the data collected and
analyzed. It is only through access to massive datasets that researchers have been able to identify
or infer new and previously private facts about the individuals whose calling records make up the
telephone databases. Just as multiple calls by the same person reveal more than a single call, so
too does a database containing calling data about millions of people reveal more information
about the individuals contained within it than a database with calling data about just one person.
As such, a universal database containing records about all Americans’ communications will
reveal vastly more information, including new observable facts not currently known to the
48 Corrina Cortes, Daryl Pregibon & Chris Volinsky, Communities of Interest, AT&T Shannon Research Labs, http://www.research.att.com/~volinsky/papers/portugal.ps.
49 Haim Kaplan, Maria Strauss & Mario Szegedy, Just the Fax – Differentiating Voice and Fax Phone Lines Using Call Billing Data, AT&T Labs, http://bit.ly/19Aa8Ua.
50 Corinna Cortes & Daryl Pregibon, Giga-Mining, AT&T Labs-Research, http://bit.ly/153pMcI.
51 Richard A. Becker, Ramon Caceres, Karrie Hanson, Ji Meng Loh, Simon Urbanek, Alexander Varshavsky & Chris Volinsky, Clustering Anonymized Mobile Call Detail Records to Find Usage Groups, AT&T Labs-Research, http://soc.att.com/16jmKdz.
52 Rodrigo de Oliveira, Alexandros Karatzoglou, Pedro Concejero, Ana Armenta & Nuria Oliver, Towards a Psychographic User Model from Mobile Phone Usage, CHI 2011 Work-inProgress (May 7–12, 2011), http://bit.ly/1f51mOy; see also Yves-Alexandre de Montjoye, Jordi Quoidbach, Florent Robic & Alex (Sandy) Pentland, Predicting People Personality Using Novel Mobile Phone-Based Metrics. Social Computing, Behavioral-Cultural Modeling and Prediction (2013), http://bit.ly/1867vWU.
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research commW1ity, because no researcher has access to the kind of dataset that the government is presumed to have. 63 . A common theme is seen in many of these examples of "big data" analysis of metadata. The analyst uses metadata about many individuals to discover patterns of behavior that are indicative of some attribute of an individual. The analyst can then apply these patterns to the metadata of an individual user, to infer the likely attributes of that user. In this way, the effect of collecting metadata about one individual is magnified when information is collected across the whole population. 64. The privacy impact of collecting all communications metadata about a single person for long periods of time is qualitatively different than doing so over a period of days. Similarly, the privacy impact of assembling the call records of every American is vastly greater than the impact of collecting data about a single person or even groups of people. Mass collection not only allows the government to learn information about more people, but it also enables the government to learn new, previously private facts that it could not have learned simply by collecting the information about a few, specific individuals.

Dated: August 23 , 2013

Edward W. Felten

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EXHIBIT 1

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Edward W. Felten
Professor of Computer Science and Public Affairs Director, Center for Information Technology Policy
Princeton University Sherrerd Hall, Room 302
Princeton NJ 08544 (609) 258-5906
(609) 964-1855 fax felten@cs.princeton.edu
Education
Ph.D. in Computer Science and Engineering, University of Washington, 1993. Dissertation title: “Protocol Compilation: High-Performance Communication for Parallel Programs.” Advisors: Edward D. Lazowska and John Zahorjan.
M.S. in Computer Science and Engineering, University of Washington, 1991. B.S. in Physics, with Honors, California Institute of Technology, 1985.
Employment
Professor of Computer Science and Public Affairs, Princeton University, 2006-present.
Chief Technologist, U.S. Federal Trade Commission, 2011-2012.
Professor of Computer Science, Princeton University, 2003-2006. Associate Professor of Computer Science, Princeton University, 1999-2003. Assistant Professor of Computer Science, Princeton University, 1993-99. Senior Computing Analyst, Caltech Concurrent Computing Project, California Institute
of Technology, 1986-1989.
Director, Center for Information Technology Policy, Princeton University, 2005-present.
Elysium Digital LLC and various law firms. Consulting and expert testimony in technology litigation, 1998-present
U.S. Federal Trade Commission: consulting regarding spam policy and investigation, 2004, 2006.
U.S. Dept. of Justice, Antitrust Division: consulting and testimony in Microsoft antitrust case, 1998-2002..
Electronic Frontier Foundation. Consulting in intellectual property / free speech lawsuits, 2001-2010.
Certus Ltd.: consultant in product design and analysis, 2000-2002. Cigital Inc.: Technical Advisory Board member, 2000-2007.

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Cloakware Ltd.: Technical Advisory Board member, 2000-2003. Propel.com: Technical Advisory Board member, 2000-2002. NetCertainty.com: Technical Advisory Board member, 1999-2002. FullComm LLC: Scientific Advisory Board member, 1999-2001. Sun Microsystems: Java Security Advisory Board member, 1997-2001. Finjan Software: Technical Advisory Board member, 1997-2002. International Creative Technologies: consultant in product design and analysis, 1997-98. Bell Communications Research: consultant in computer security research, 1996-97.
Honors and Awards
National Academy of Engineering, 2013. American Academy of Arts and Sciences, 2011 ACM Fellow, 2007. EFF Pioneer Award, 2005. Scientific American Fifty Award, 2003. Alfred P. Sloan Fellowship, 1997. Emerson Electric, E. Lawrence Keyes Faculty Advancement Award, Princeton
University School of Engineering, 1996. NSF National Young Investigator award, 1994. Outstanding Paper award, 1997 Symposium on Operating Systems Principles. Best Paper award, 1995 ACM SIGMETRICS Conference. AT&T Ph.D. Fellowship, 1991-93. Mercury Seven Foundation Fellowship, 1991-93.
Research Interests
Information security. Privacy. Technology law and policy. Internet software. Intellectual property policy. Using technology to improve government. Operating systems. Interaction of security with programming languages and operating systems. Distributed computing. Parallel computing architecture and software.
Professional Service
Professional Societies and Advisory Groups
ACM U.S. Public Policy Committee, Vice Chair, 2008-2010, 2012-present. DARPA Privacy Panel, 2010-2012. Transportation Security Administration, Secure Flight Privacy Working Group, 2005. National Academies study committee on Air Force Information Science and Technology Research, 2004-present. Electronic Frontier Foundation, Advisory Board, 2004-2007. ACM U.S. Public Policy Committee, 2004-present (Executive Committee, 2005-present)

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ACM Advisory Committee on Security and Privacy, 2002-2003. DARPA Information Science and Technology (ISAT) study group, 2002-2004. Co-chair, ISAT study committee on “Reconciling Security with Privacy,” 2001-2002. National Academy study committee on Foundations of Computer Science, 2001-2004.
Program Committees World Wide Web Conference, 2006. USENIX General Conference, 2004. Workshop on Foundations of Computer Security, 2003. ACM Workshop on Digital Rights Management, 2001. ACM Conference on Computer and Communications Security, 2001. ACM Conference on Electronic Commerce, 2001. Workshop on Security and Privacy in Digital Rights Management, 2001. Internet Society Symposium on Network and Distributed System Security, 2001. IEEE Symposium on Security and Privacy, 2000. USENIX Technical Conference, 2000. USENIX Windows Systems Conference, 2000. Internet Society Symposium on Network and Distributed System Security, 2000. IEEE Symposium on Security and Privacy, 1998. ACM Conference on Computer and Communications Security, 1998. USENIX Security Symposium, 1998. USENIX Technical Conference, 1998. Symposium on Operating Systems Design and Implementation, 1996.
Boards Electronic Frontier Foundation, Board of Directors, 2007-2010. DARPA Information Science and Technology study board, 2001-2003. Cigital Inc.: Technical Advisory Board. Sun Microsystems, Java Security Advisory Council. Cloakware Ltd.: Technical Advisory Board. Propel.com: Technical Advisory Board. Finjan Software: Technical Advisory Board. Netcertainty: Technical Advisory Board. FullComm LLC: Scientific Advisory Board.
University and Departmental Service
Committee on Online Courses, 2012-present Director, Center for Information Technology Policy, 2005-present. Committee on the Course of Study, 2009-present. SEAS Strategic Planning, 2004.
Member, Executive Committee Co-Chair, Interactions with Industry area. Co-Chair, Engineering, Policy, and Society area. Faculty Advisory Committee on Policy, 2002-present. Council of the Princeton University Community, 2002-present (Executive Committee) Faculty Advisory Committee on Athletics, 1998-2000.

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Computer Science Academic Advisor, B.S.E. program, class of 1998 (approx. 25 students)
Faculty-Student Committee on Discipline, 1996-98. Faculty-Student Committee on Discipline, Subcommittee on Sexual Assault and
Harrassment, 1996-98.
Students Advised
Ph.D. Advisees: Harlan Yu (Ph.D. 2012). Dissertation: Designing Software to Shape Open Government
Policy. Ariel J. Feldman (Ph.D. 2012). Dissertation: Privacy and Integrity in the Untrusted
Cloud. Joseph A. Calandrino (Ph.D. 2012). Dissertation: Control of Sensitive Data in Systems
with Novel Functionality. William B. Clarkson (Ph.D. 2012). Dissertation: Breaking Assumptions: Distinguishing
Between Seemingly Identical Items Using Cheap Sensors. Technical staff member at Google. Matthias Jacob (Ph.D. 2009). Technical staff member at Nokia. J. Alex Halderman (Ph.D. 2009). Dissertation: Security Failures in Non-traditional Computing Environments. Assistant Professor of Computer Science, University of Michigan. Shirley Gaw (Ph.D. 2009). Dissertation: Ideals and Reality: Adopting Secure Technologies and Developing Secure Habits to Prevent Message Disclosure. Technical staff member at Google. Brent Waters (Ph.D. 2004). Dissertation: Security in a World of Ubiquitous Recording Devices. Assistant Professor of Computer Science, University of Texas. Robert A. Shillingsburg (Ph.D. 2004). Dissertation: Improving Distributed File Systems using a Shared Logical Disk. Retired; previously a technical staff member at Google. Michael Schneider (Ph.D. 2004). Dissertation: Network Defenses against Denial of Service Attacks. Researcher, Supercomputing Research Center, Institute for Defense Analyses. Minwen Ji (Ph.D. 2001). Dissertation: Data Distribution for Dynamic Web Content. Researcher, HP Labs. Dirk Balfanz (Ph.D. 2000). Dissertation: Access Control for Ad Hoc Collaboration. Technical staff member at Google. Dan S. Wallach (Ph.D. 1998). Dissertation: A New Approach to Mobile Code Security. Associate Professor of Computer Science, Rice University.
Significant Advisory Role: Drew Dean (Ph.D. 1998). Advisor: Andrew Appel. Program Manager at DARPA. Stefanos Damianakis (Ph.D. 1998). Advisor: Kai Li. President and CEO, Netrics, Inc.

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Pei Cao (Ph.D. 1996). Advisor: Kai Li. Staff technologist at Facedbook. Lujo Bauer (Ph.D. 2003). Advisor: Andrew Appel. Research Scientist, School of
Computer Science, Carnegie Mellon University.

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Publications
Books and Book Chapters
[1] Enabling Innovation for Civic Engagement. David G. Robinson, Harlan Yu, and Edward W. Felten. In Open Government, Daniel Lathrop and Laurel Ruma, eds., O’Reilly, 2010.
[2] Securing Java: Getting Down to Business with Mobile Code. Gary McGraw and Edward W. Felten. John Wiley and Sons, New York 1999.
[3] Java Security: Web Browsers and Beyond. Drew Dean, Edward W. Felten, Dan S. Wallach, and Dirk Balfanz. In "Internet Besieged: Countering Cyberspace Scofflaws," Dorothy E. Denning and Peter J. Denning, eds. ACM Press, New York, 1997.
[4] Java Security: Hostile Applets, Holes and Antidotes. Gary McGraw and Edward Felten. John Wiley and Sons, New York, 1996
[5] Dynamic Tree Searching. Steve W. Otto and Edward W. Felten. In "High Performance Computing", Gary W. Sabot, ed., Addison Wesley, 1995.
Journal Articles
[6] Government Data and the Invisible Hand. David Robinson, Harlan Yu, William Zeller, and Edward W. Felten. Yale Journal of Law and Technology, vol. 11, 2009.
[7] Mechanisms for Secure Modular Programming in Java. Lujo Bauer, Andrew W. Appel, and Edward W. Felten. Software – Practice and Experience, 33:461-480, 2003.
[8] The Digital Millennium Copyright Act and its Legacy: A View from the Trenches. Illinois Journal of Law, Technology and Policy, Fall 2002.
[9] The Security Architecture Formerly Known as Stack Inspection: A Security Mechanism for Language-based Systems. Dan S. Wallach, Edward W. Felten, and Andrew W. Appel. ACM Transactions on Software Engineering and Methodology, 9:4, October 2000.
[10] Statically Scanning Java Code: Finding Security Vulnerabilities. John Viega, Tom Mutdosch, Gary McGraw, and Edward W. Felten. IEEE Software, 17(5), Sept./Oct. 2000.
[11] Client-Server Computing on the SHRIMP Multicomputer. Stefanos N. Damianakis, Angelos Bilas, Cezary Dubnicki, and Edward W. Felten. IEEE Micro 17(1):8-18, February 1997.
[12] Fast RPC on the SHRIMP Virtual Memory Mapped Network Interface. Angelos Bilas and Edward W. Felten. IEEE Transactions on Parallel and Distributed Computing, February 1997.

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[13] Implementation and Performance of Integrated Application-Controlled File Caching, Prefetching and Disk Scheduling. Pei Cao, Edward W. Felten, Anna R. Karlin, and Kai Li. ACM Transactions on Computer Systems, Nov 1996.
[14] Virtual Memory Mapped Network Interface Designs. Matthias A. Blumrich, Cezary Dubnicki, Edward W. Felten, Kai Li, and Malena Mesarina. IEEE Micro, 15(1):2128, February 1995.
Selected Symposium Articles
[15] Social Networking with Frientegrity: Privacy and Integrity with an Untrusted Provider. Ariel J. Feldman, Aaron Blankstein, Michael J. Freedman, and Edward W. Felten. Proc. USENIX Security Symposium, Aug. 2012.
[16] Bubble Trouble: Off-Line De-Anonymization of Bubble Forms. Joseph A. Calandrino, William Clarkson, and Edward W. Felten. Proc. USENIX Security Symposium, Aug. 2011
[17] You Might Also Like: Privacy Risks of Collaborative Filtering. Joseph A. Calandrino, Ann Kilzer, Arvind Narayanan, Edward W. Felten, and Vitaly Shmatikov. Proc. IEEE Symposium on Security and Privacy, May 2011.
[18] SPORC: Group Collaboration Using Untrusted Cloud Resources. Ariel J. Feldman, William P. Zeller, Michael J. Freedman, and Edward W. Felten. Proc. Symposium on Operating Systems Design and Implementation, 2010.
[19] SVC: Selector-Based View Composition for Web Frameworks. William Zeller and Edward W. Felten. Proc. USENIX Conference on Web Application Development, 2010.
[20] Defeating Vanish with Low-Cost Sybil Attacks Against Large DHTs. Scott Wolchok, Owen S. Hofmann, Nadia Heninger, Edward W. Felten, J. Alex Halderman, Christopher J. Rossbach, Brent Waters, and Emmet Witchel. Proc. 17th Network and Distributed System Security Symposium, 2010.
[21] Can DREs Provide Long-Lasting Security? The Case of Return-Oriented Programming and the AVC Advantage. Stephen Checkoway, Ariel J. Feldman, Brian Kantor, J. Alex Halderman, Edward W. Felten, and Hovav Shacham, Proc. Electronic Voting Technology Workshop, 2009.
[22] Some Consequences of Paper Fingerprinting for Elections. Joseph A. Calandrino, William Clarkson, and Edward W. Felten. Proc. Electronic Voting Technology Workshop, 2009.
[23] Software Support for Software-Independent Auditing. Gabrielle A. Gianelli, Jennifer D. King, Edward W. Felten, and William P. Zeller. Proc. Electronic Voting Technology Workshop, 2009.
[24] Fingerprinting Blank Paper Using Commodity Scanners. William Clarkson, Tim Weyrich, Adam Finkelstein, Nadia Heninger, J. Alex Halderman, and Edward W. Felten. Proc. ACM Symposium on Security and Privacy, May 2009.

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[25] Lest We Remember: Cold Boot Attacks on Encryption Keys. J. Alex Halderman, Seth D. Schoen, Nadia Heninger, William Clarkson, William Paul, Joseph A. Calandrino, Ariel J. Feldman, Jacob Appelbaum, and Edward W. Felten. Proc. Usenix Security Symposium, 2008.
[26] In Defense of Pseudorandom Sample Selection. Joseph A. Calandrino, J. Alex Halderman, and Edward W. Felten. Proc. Electronic Voting Technology Workshop, 2008.
[27] Security Analysis of the Diebold AccuVote-TS Voting Machine. Ariel J. Feldman, J. Alex Halderman, and Edward W. Felten. Proc. Electronic Voting Technology Workshop, 2007.
[28] Machine-Assisted Election Auditing. Joseph A. Calandrino, J. Alex Halderman, and Edward W. Felten. Proc. Electronic Voting Technology Workshop, 2007.
[29] Lessons from the Sony CD DRM Episode. J. Alex Halderman and Edward W. Felten. Proc. Usenix Security Symposium, 2006.
[30] A Convenient Method for Securely Managing Passwords. J. Alex Halderman, Brent R. Waters, and Edward W. Felten. Proc. 14th World Wide Web Conference, 2005.
[31] New Client Puzzle Outsourcing Techniques for DoS Resistance. Brent R. Waters, Ari Juels, J. Alex Halderman, and Edward W. Felten. ACM Conference on Computer and Communications Security. November 2004.
[32] Privacy Management for Portable Recording Devices. J. Alex Halderman, Brent R. Waters, and Edward W. Felten. 3rd Workshop on Privacy in Electronic Society. November 2004.
[33] Receiver Anonymity via Incomparable Public Keys. Brent R. Waters, Edward W. Felten, and Amit Sahai. ACM Conference on Computer and Communications Security. November 2003.
[34] Attacking an Obfuscated Cipher by Injecting Faults. Matthias Jacob, Dan Boneh, and Edward W. Felten. ACM Workshop on Digital Rights Management, November 2002.
[35] A General and Flexible Access-Control System for the Web. Lujo Bauer, Michael A. Schneider, and Edward W. Felten. 11th USENIX Security Symposium, August 2002.
[36] Informed Consent in the Mozilla Browser: Implementing Value-Sensitive Design. Batya Friedman, Daniel C. Howe, and Edward W. Felten. Hawaii International Conference on System Sciences, January 2002. (Best Paper award, organizational systems track.)
[37] Reading Between the Lines: Lessons from the SDMI Challenge. Scott A. Craver, John P. McGregor, Min Wu, Bede Liu, Adam Stubblefield, Ben Swartzlander, Dan S. Wallach, Drew Dean, and Edward W. Felten. USENIX Security Symposium, August 2001.

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[38] Cookies and Web Browser Design: Toward Realizing Informed Consent Online. Lynette I. Millett, Batya Friedman, and Edward W. Felten. Proc. of CHI 2001 Conference on Human Factors in Computing Systems, April 2001.
[39] Timing Attacks on Web Privacy. Edward W. Felten and Michael A. Schneider. Proc. of 7th ACM Conference on Computer and Communications Security, Nov. 2000.
[40] Archipelago: An Island-Based File System for Highly Available and Scalable Internet Services. USENIX Windows Systems Symposium, August 2000.
[41] Proof-Carrying Authentication. Andrew W. Appel and Edward W. Felten. Proc. of 6th ACM Conference on Computer and Communications Security, Nov. 1999.
[42] An Empirical Study of the SHRIMP System. Matthias A. Blumrich, Richard D. Alpert, Yuqun Chen, Douglas W. Clark, Stefanos, N. Damianakis, Cezary Dubnicki, Edward W. Felten, Liviu Iftode, Margaret Martonosi, Robert A. Shillner, and Kai Li. Proc. of 25th International Symposium on Computer Architecture, June 1998.
[43] Performance Measurements for Multithreaded Programs. Minwen Ji, Edward W. Felten, and Kai Li. Proc. of 1998 SIGMETRICS Conference, June 1998.
[44] Understanding Java Stack Inspection. Dan S. Wallach and Edward W. Felten. Proc. of 1998 IEEE Symposium on Security and Privacy, May 1998.
[45] Extensible Security Architectures for Java. Dan S. Wallach, Dirk Balfanz, Drew Dean, and Edward W. Felten. Proc. of 16th ACM Symposium on Operating Systems Principles, Oct. 1997. Outstanding Paper Award.
[46] Web Spoofing: An Internet Con Game. Edward W. Felten, Dirk Balfanz, Drew Dean, and Dan S. Wallach. Proc. of 20th National Information Systems Security Conference, Oct. 1997.
[47] Reducing Waiting Costs in User-Level Communication. Stefanos N. Damianakis, Yuqun Chen, and Edward W. Felten. Proc. of 11th Intl. Parallel Processing Symposium, April 1997.
[48] Stream Sockets on SHRIMP. Stefanos N. Damianakis, Cezary Dubnicki, and Edward W. Felten. Proc. of 1st Intl. Workshop on Communication and Architectural Support for Network-Based Parallel Computing, February 1997. (Proceedings available as Lecture Notes in Computer Science #1199.)
[49] Early Experience with Message-Passing on the SHRIMP Multicomputer. Richard D. Alpert, Angelos Bilas, Matthias A. Blumrich, Douglas W. Clark, Stefanos Damianakis, Cezary Dubnicki, Edward W. Felten, Liviu Iftode, and Kai Li. Proc. of 23rd Intl. Symposium on Computer Architecture, 1996.
[50] A Trace-Driven Comparison of Algorithms for Parallel Prefetching and Caching. Tracy Kimbrel, Andrew Tomkins, R. Hugo Patterson, Brian N. Bershad, Pei Cao, Edward W. Felten, Garth A. Gibson, Anna R. Karlin, and Kai Li. Proc. of 1996 Symposium on Operating Systems Design and Implementation.
[51] Java Security: From HotJava to Netscape and Beyond. Drew Dean, Edward W. Felten, and Dan S. Wallach. Proc. of 1996 IEEE Symposium on Security and Privacy.

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[52] Integrated Parallel Prefetching and Caching. Tracy Kimbrel, Pei Cao, Edward W. Felten, Anna R. Karlin, and Kai Li. Proc. of 1996 SIGMETRICS Conference.
[53] Software Support for Virtual Memory-Mapped Communication. Cezary Dubnicki, Liviu Iftode, Edward W. Felten, and Kai Li. Proc. of Intl. Parallel Processing Symposium, April 1996.
[54] Protected, User-Level DMA for the SHRIMP Network Interface. Matthias A. Blumrich, Cezary Dubnicki, Edward W. Felten, and Kai Li. Proc. of 2nd Intl. Symposium on High-Performance Computer Architecture, Feb. 1996
[55] Improving Release-Consistent Shared Virtual Memory using Automatic Update . Liviu Iftode, Cezary Dubnicki, Edward W. Felten, and Kai Li. Proc. of 2nd Intl. Symposium on High-Performance Computer Architecture, Feb. 1996
[56] Synchronization for a Multi-Port Frame Buffer on a Mesh-Connected Multicomputer. Bin Wei, Gordon Stoll, Douglas W. Clark, Edward W. Felten, and Kai Li. Parallel Rendering Symposium, Oct. 1995.
[57] A Study of Integrated Prefetching and Caching Strategies. Pei Cao, Edward W. Felten, Anna R. Karlin, and Kai Li. Proc. of 1995 ACM SIGMETRICS Conference. Best Paper award.
[58] Evaluating Multi-Port Frame Buffer Designs for a Mesh-Connected Multicomputer. Gordon Stoll, Bin Wei, Douglas W. Clark, Edward W. Felten, Kai Li, and Patrick Hanrahan. Proc. of 22nd Intl. Symposium on Computer Architecture.
[59] Implementation and Performance of Application-Controlled File Caching. Pei Cao, Edward W. Felten, and Kai Li. Proc. of 1st Symposium on Operating Systems Design and Implementation, pages 165-178, November 1994.
[60] Application-Controlled File Caching Policies. Pei Cao, Edward W. Felten, and Kai Li. Proc. of USENIX Summer 1994 Technical Conference, pages 171-182, 1994.
[61] Virtual Memory Mapped Network Interface for the SHRIMP Multicomputer. Matthias A. Blumrich, Kai Li, Richard D. Alpert, Cezary Dubnicki, Edward W. Felten, and Jonathan S. Sandberg. Proc. of Intl. Symposium on Computer Architecture, 1994.
[62] Performance Issues in Non-Blocking Synchronization on Shared-Memory Multiprocessors. Juan Alemany and Edward W. Felten. Proceedings of Symposium on Principles of Distributed Computing, 1992.
[63] Improving the Performance of Message-Passing Applications by Multithreading. Edward W. Felten and Dylan McNamee. Proceedings of Scalable High-Performance Computing Conference (SHPCC), 1992.
[64] A Highly Parallel Chess Program. Edward W. Felten and Steve W. Otto. 1988 Conference on Fifth Generation Computer Systems.
Selected Other Publications

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[65] Strangers in a Strange Land. Review of Blown to Bits: Your Life, Liberty, and Happiness after the Digital Explosion, by Abelson, Ledeen, and Lewis. American Scientist, 97:4. July/August 2009.
[66] Lest We Remember: Cold-Boot Attacks on Encryption Keys. J. Alex Halderman, Seth D. Schoen, Nadia Heninger, William Clarkson, William Paul, Joseph A. Calandrino, Ariel J. Feldman, Jacob Appelbaum, and Edward W. Felten. Communications of the ACM, 52(5):91-98. May 2009.
[67] Security Analysis of the Diebold AccuVote-TS Voting Machine. Ariel J. Feldman, J. Alex Halderman, and Edward W. Felten. Sept. 2006.
[68] Digital Rights Management, Spyware, and Security. Edward W. Felten and J. Alex Halderman, IEEE Security and Privacy, Jan./Feb. 2006.
[69] Inside RISKS: DRM and Public Policy. Edward W. Felten. Communications of the ACM, 48:7, July 2005.
[70] Understanding Trusted Computing: Will its Benefits Outweigh its Drawbacks? Edward W. Felten. IEEE Security and Privacy, May 2003.
[71] A Skeptical View of DRM and Fair Use. Edward W. Felten. Communications of the ACM 46(4):56-61, April 2003.
[72] Consumer Privacy and Government Technology Mandates in the Digital Media Marketplace. Testimony before U.S. Senate Commerce Committee. September 2003.
[73] Secure, Private Proofs of Location. Brent R. Waters and Edward W. Felten. Submitted for publication, 2003.
[74] An Efficient Heuristic for Defense Against Distributed Denial of Service Attacks using Route-Based Distributed Packet Filtering. Michael A. Schneider and Edward W. Felten. Submitted for publication, 2003.
[75] Written testimony to House Commerce Committee, Subcommittee on Courts, the Internet, and Intellectual Property, oversight hearing on “Piracy of Intellectual Property on Peer to Peer Networks.” September 2002.
[76] Written testimony to Senate Judiciary Committee hearings on “Competition, Innovation, and Public Policy in the Digital Age: Is the Marketplace Working to Protect Digital Creativity?” March 2002.
[77] Informed Consent Online: A Conceptual Model and Design Principles. Batya Friedman, Edward W. Felten, and Lynette I. Millett. Technical Report 2000-12-2, Dept. of Computer Science and Engineering, University of Washington, Dec. 2000.
[78] Mechanisms for Secure Modular Programming in Java. Lujo Bauer, Andrew W. Appel, and Edward W. Felten. Technical Report CS-TR-603-99, Department of Computer Science, Princeton University, July 1999.
[79] A Java Filter. Dirk Balfanz and Edward W. Felten. Technical Report 567-97, Dept. of Computer Science, Princeton University, October 1997.

Case 1:13-cv-03994-WHP Document 27 Filed 08/26/13 Page 35 of 35
[80] Inside RISKS: Webware Security. Edward W. Felten. Communications of the ACM, 40(4):130, 1997.
[81] Simplifying Distributed File Systems Using a Shared Logical Disk.Robert A. Shillner and Edward W. Felten. Princeton University technical report TR-524-96.
[82] Contention and Queueing in an Experimental Multicomputer: Analytical and Simulation-based Results. Wenjia Fang, Edward W. Felten, and Margaret Martonosi. Princeton University technical report TR-508-96.
[83] Design and Implementation of NX Message Passing Using SHRIMP Virtual Memory Mapped Communication. Richard D. Alpert, Cezary Dubnicki, Edward W. Felten, and Kai Li. Princeton University technical report TR-507-96.
[84] Protocol Compilation: High-Performance Communication for Parallel Programs. Edward W. Felten. Ph.D. dissertation, Dept. of Computer Science and Engineering, University of Washington, August 1993.
[85] Building Counting Networks from Larger Balancers. Edward W. Felten, Anthony LaMarca, and Richard Ladner. Univ. of Washington technical report UW-CSE-9304-09.
[86] The Case for Application-Specific Communication Protocols. Edward W. Felten. Univ. of Washington technical report TR-92-03-11.
[87] A Centralized Token-Based Algorithm for Distributed Mutual Exclusion. Edward W. Felten and Michael Rabinovich. Univ. of Washington technical report TR-92-02-02.
[88] Issues in the Implementation of a Remote Memory Paging System. Edward W. Felten and John Zahorjan. Univ. of Washington technical report TR-91-03-09.

Case 1:13-cv-03994-WHP Document 28 Filed 08/26/13 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

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

Case No. 13-cv-03994 (WHP) ECF Case

DECLARATION OF MICHAEL GERMAN I, Michael German, hereby declare and state as follows: 1. I am a resident of the Commonwealth of Virginia over the age of 18 and am principally employed in the District of Columbia. I have personal knowledge of the facts stated in this declaration. 2. I am a Senior Policy Counsel on National Security, Immigration, and Privacy at the American Civil Liberties Union (“ACLU”), where I have worked since 2006. In my work at the ACLU, I am an advocate on issues related to national security and government transparency,
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and I am the ACLU’s principal advocate on issues related to “whistleblowers,” or individuals inside of government who wish to expose government wrongdoing (including illegality, waste, fraud, or abuse) through appropriate and legal channels. I have expertise in this area in part because I am a former federal whistleblower myself.
3. The ACLU is dedicated to defending the rights guaranteed in the Constitution and Bill of Rights, including the free-speech rights of government employees and the public’s right to government information produced for public benefit and at public expense. Often, government employees and contractors are the only people in positions to disclose government waste, fraud, abuse, and illegality, and they therefore must be empowered to responsibly report these matters to the appropriate oversight officials within the executive branch—as well as to Congress, the courts and the public—without fear of reprisal. This is particularly true in the national-security context, where inappropriate or excessive use of classification can be used to hide government activities from congressional, judicial, and public oversight, and where the laws protecting whistleblowers from reprisal are weakest.
4. The ACLU lobbies in Congress and directly to executive-branch agencies to strengthen the legal protections for whistleblowers, and to provide effective due-process mechanisms for adjudicating government employees’ and contractors’ complaints of reprisal for having reporting waste, fraud, abuse, and illegality. The ACLU supported the Whistleblower Protections Enhancement Act of 2012, and encouraged the executive branch to promulgate Presidential Police Directive 19, which is designed to expand protections for employees of the intelligence agencies.
5. Because the ACLU is a prominent organization working on these issues, whistleblowers often contact the ACLU directly, seeking advice, representation, or both.
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Because of my background as a whistleblower, many whistleblowers contact me directly to seek my guidance. In these cases, I assist prospective whistleblowers in obtaining legal advice from ACLU litigators or from public-interest groups outside the ACLU, such as the National Whistleblower Center, the Project on Government Oversight, the James Madison Project, and the Government Accountability Project, among others. I may also introduce them to congressional staff, or give them advice on which committees or members of Congress work on the issues they are concerned about or oversee the agencies in which they work. Many times I ask them if they are willing to lose their jobs in the process of bringing a problem to light. If they say “no,” I often advise them that the legal protections existing today are insufficient to protect them from retaliation and they should carefully consider their decision. In some cases they do not report the misconduct as a result.
6. I sought assistance from the ACLU when I left the FBI and reported problems in the FBI counterterrorism program to Congress and the public. The ACLU also represented former FBI linguist Sibel Edmunds, who was improperly fired by the FBI after reporting problems in the agency’s translation program. The ACLU of Southern California represented Federal Air Marshal Frank Terreri, who was suspended after raising concerns about policy changes that made it easier to identify Federal Air Marshals while on duty protecting air traffic. The ACLU has also assisted many other whistleblowers who have never been publicly identified.
PERSONAL WHISTLEBLOWING HISTORY 7. In June 1988, after graduating from Northwestern University Law School, I entered on duty as a Special Agent at the Federal Bureau of Investigation (“FBI”). During my career at the FBI, I had a clean disciplinary record and a consistent record of superior performance appraisals, and I received a Medal of Valor from the Los Angeles Federal Bar
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Association, and a First African Methodist Episcopal Church FAME Award. In addition, through my work as an undercover agent, I successfully infiltrated domestic terrorist organizations, recovered dozens of illegal firearms and explosive devices, successfully investigated unsolved bombings, prevented acts of terrorism, and helped win criminal conviction against terrorists.
8. In 2002, I made a protected disclosure through my chain of command about management failures and violations of law in an FBI counterterrorism investigation. In particular, I learned in August 2002 that part of a meeting between subjects of an FBI investigation in which I was involved had been illegally recorded, in violation of Title III wiretap laws, by an FBI cooperating witness. On September 10, 2002, I sent a letter documenting the illegality of which I was aware up my chain of command. Almost immediately, I suffered retaliation from superior officers; later, I learned that retaliatory investigations, which were shown to be meritless, had been initiated against me because of the misconduct I reported. In November 2002, I reported the entirety of the matter to the Office of the Inspector General (“OIG”) in the Department of Justice (“DOJ”). In 2004, I resigned from the FBI as a result of the retaliation I suffered after reporting the misconduct.
9. After two years of attempting to have the misconduct and deficiencies that I witnessed addressed within the FBI and DOJ, I chose to report the matter to Congress. As a result of the efforts of Senators Chuck Grassley, Arlen Specter, and Patrick Leahy, among others, the OIG ultimately released a report documenting the investigation precipitated by the illegality I reported within the FBI. The report confirms many of the allegations in my original complaint. In 2008, I testified before the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security about my whistleblowing experience within the FBI.
EXPERIENCE WITH WHISTLEBLOWERS AS ACLU POLICY COUNSEL
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10. Since joining the ACLU in 2006, I have specialized in advocacy related to federal law enforcement. The primary focus of my work is the role of whistleblowers in exposing government wrongdoing, waste, fraud, and abuse. I estimate that 15 to 25 percent of my professional time is spent on this focus.
11. According to a May 2009 report by the DOJ Office of the Inspector General, Review of the Federal Bureau of Investigation’s Disciplinary System, a survey of FBI employees indicated that 18 percent of respondents said that they “never” reported incidents of possible misconduct of which they had been made aware. Additionally, 28 percent of respondents in nonsupervisory positions (GS-13 grade level or below) indicated that they “never” reported incidents of possible misconduct of which they had been made aware. The report indicated that the second-most-common reason for FBI employees failing to report misconduct incidents was fear of professional retaliation.
12. In my professional capacity, I regularly receive calls from government employees seeking advice on how to “blow the whistle” appropriately, safely, and effectively within different government agencies. In general, my relationships with these individuals are not confined to a single contact, but consist of continuing and ongoing discussions about various attempts to report misconduct and avoid retaliation that may last years at a time. The potential whistleblowers typically do not know their rights under the law, or the proper methods to report waste, fraud, abuse, or illegality within their agencies. They often do not know the responsibilities of the Inspectors General of their agencies, or how to report a complaint to those officials. Finally, they often do not know how they may bring the matter to the attention of members of Congress, and need assistance in identifying the proper committee or member to which they can report their concerns. Even after reporting through these avenues, however,
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whistleblowers often need continuing assistance if, for example, the Inspectors General or congressional staff do not properly follow up to investigate the matters. Additionally, after initial reporting, whistleblowers often begin to suffer retaliation as a result of their protected disclosures. I often work with congressional staff and with staff of the Inspector General offices to address the concerns presented by federal whistleblowing.
13. In addition, sometimes individuals within the government contact me about government misconduct but cannot explain themselves fully because doing so would reveal classified information. These individuals usually are seeking safe avenues for communicating and reporting information that may be classified without committing a crime. In my experience, most of these individuals contact me because they are unaware of avenues within the government for reporting misconduct related to classified matters without exposure to adverse retaliation. In my professional experience, less than ten percent of federal-government whistleblowing involves classified information.
14. In most cases, my role in advising potential whistleblowers is to provide guidance about the available avenues for reporting government misconduct, waste, fraud, or abuse, based on my experience and expertise, as well as to assist individuals in retaining legal counsel should the individual desire it.
15. In my experience, government employees who have witnessed possible incidents of misconduct fear that they will suffer professional retaliation if they report those incidents through administrative channels.
16. In the context of whistleblowing, I am aware of various forms of professional retaliation that have occurred in the past and that commonly dissuade individuals from coming forward with information about possible government misconduct, waste, fraud, or abuse. Such
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retaliation includes, but is not limited to: harassment; retaliatory investigations; internal disciplinary actions; adverse change of job duties or responsibilities; physical-location transfers; termination; and filing of criminal charges.
17. Additionally, individuals who hold security clearances from the federal government risk losing their clearance status by reporting misconduct. I am aware of numerous cases in which whistleblowers lost security clearances after reporting incidents of misconduct, or had their security clearances threatened. Employees and contractors of the FBI and intelligence agencies have little ability to defend themselves against security-clearance retaliation, and in most cases cannot maintain employment with these agencies without a clearance.
18. In my experience, one of the most dissuasive acts of professional retaliation that potential whistleblowers fear is the threat of administrative investigation. I am aware of numerous instances in which government employees chose not to report misconduct because they feared being subjected to investigations unrelated to the subject of their potential reporting. I have often heard potential whistleblowers express the concern that “no one is administratively pure,” which means that no federal employee believes him- or herself to be immune to retaliatory actions if he or she were to report misconduct.
19. Typically, individuals who contact me seeking information about how to safely and legally report government misconduct are fearful that their efforts will be exposed before they decide on a course of action, and are afraid of retaliation that could damage or end their careers. Often, potential whistleblowers are perplexed and frustrated that attempts to report incidents internally are met with resistance and inaction. Many indicate that they believe there are few (and sometimes no) avenues for open communication, advice, or resources about how to
7

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report government misconduct without exposing themselves to adverse employment consequences.
20. When contacted by individuals interested in reporting government misconduct through official channels, I regularly inform them that, based on my personal and professional experiences, simply reporting misconduct commonly leads to dismissal and other serious professional retaliation, and that they must be prepared for those potential consequences.
21. In my experience, most government whistleblowers are dedicated federal employees who have rarely found themselves in a position to challenge the government previously. Not uncommonly, individuals who contact me about potential avenues for whistleblowing are contacting the ACLU for the first time. Many times, such individuals have said to me that contacting me and my employer were actions of “last resort,” because they feel that they have nowhere else to turn for guidance.
22. Many of the whistleblowers who contact me expect that their initial report of waste, fraud, abuse, or illegality will be appreciated and addressed appropriately by agency management. They are often shocked to find that they have become targets of retaliation instead, and need to report both the original complaint and a complaint of retaliation outside their agency to an Inspector General to seek protection. Unfortunately, going outside the agencies often intensifies the retaliation, and the Inspectors General are unable, and sometimes unwilling, to protect whistleblowers or properly investigate their allegations. This stage of the whistleblower process is often the most difficult for the individuals that I advise. Whistleblowers are mostly dedicated public servants who expect that the agencies they work for share their interest in serving the public welfare with honesty and integrity, and they are deeply disappointed when they find otherwise. Whistleblowers are also often ostracized by their peers, who fear that
8

Case 1:13-cv-03994-WHP Document 28 Filed 08/26/13 Page 9 of 12
assisting, sympathizing or even just associating with whistleblowers will harm their own careers. Whistleblowers tend to expect that their members of Congress will be interested in their stories, but often they cannot even get congressional staff to meet with them or respond to their emails. The few that do ultimately receive some public recognition for their efforts have likely already lost their jobs or their status within the agencies and, if they are members of the intelligence community, are treated as persona non grata, making them unemployable even by private contractors. Whistleblowers who choose to fight retaliation are often forced to endure years and years of litigation, at great personal expense and with little likelihood of success. These are dedicated public servants who are willing to put themselves at great risk to ensure all government agencies are held to account, but this dedication to the public interest often takes an incredible personal toll.
23. Almost universally, potential whistleblowers seeking advice from me are seeking confidentiality as to both the fact and substance of our communications. Often, individuals will contact me using personal phone numbers or email addresses in order to avoid revealing the fact of conversations with me to colleagues or superior officials within the government. Most potential whistleblowers have already raised their concerns internally, and thus understand that any public advocacy based on their accounts will be easily identified with them and could lead to adverse professional consequences.
24. My role as an advocate on whistleblower issues depends on the use of the telephone to communicate with potential whistleblowers, as opposed to other available mediums, such as email. Many of the people considering whistleblowing are extremely conflicted about the course of action to take because of their desire to serve their country by ensuring that the law is upheld, combined with their personal fears over the consequences of reporting actions that they
9

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believe to be wrong. These conversations are emotional and difficult, and their inherent intimacy often makes them ill-suited to be conducted through electronic means. In addition, because of the sensitivity of the subject matter, most individuals who contact me about becoming a whistleblower seek to avoid creating an electronic record of their concerns and conflicts before they make the ultimate decision to come forward to report what they know.
25. In my opinion, many individuals fear that they will be discovered reaching outside a government agency to seek advice about exposing wrongdoing. These individuals are extraordinarily sensitive to the risks involved in reporting misconduct and the possibility of retaliation should they be identified as whistleblowers. As a result, I estimate that the vast majority of federal-government wrongdoing is not reported, and that most federal employees who have witnessed wrongdoing choose to “suffer in silence” as a result.
JUDGMENTS ABOUT THE EFFECT OF SECTION 215 CALL TRACKING ON THE WILLINGNESS OF FEDERAL WHISTLEBLOWERS TO CONTACT THE ACLU 26. Through news reporting and professional discussions, I am familiar with the U.S.
government’s bulk collection of telephony metadata under Section 215 of the Patriot Act directed at customers of Verizon Business Network Services (“Verizon”).
27. I have personally reviewed a contract between the ACLU and Verizon for telephone services. From my review, I understand that Verizon is the phone-service provider for my Washington, D.C. office phone and for my cellular telephone, which is provided by my employer, the ACLU.
28. Knowledge of the frequency, duration, and timing of calls from government employees to me, or vice versa, would reveal the substance of our relationship because it would indicate that they were considering reporting government misconduct and seeking advice from me and my colleagues about how to legally go about that course of action. A small pattern of
10

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calls between me and a federal employee would lead to a reasonable inference that the individual had knowledge of government wrongdoing, irrespective of whether the content of those calls was known.
29. Because of the professional sensitivity and risks involved for federal employees who are considering becoming whistleblowers, it is my judgment that the Section 215 calltracking program will cause some individuals to remain silent rather than contact me or the ACLU in order to discuss their options in reporting violations. Knowledge that all of their communications with me or the ACLU are being logged by the government would present a substantial reason for individuals who are undecided about reporting violations but fearful of retaliation from reaching out for advice.
30. As a result, some individuals may decide not to seek advice from me or the ACLU about how to safely and legally report government wrongdoing, and some instances of government wrongdoing will likely go unreported.
31. Without direct contact with whistleblowers, my ability to advocate for greater protections for those who report waste, fraud, abuse, and illegality would be severely hampered. In order to design reforms that protect those conscientious employees and contractor who choose to report government wrongdoing, knowledge of how the system works, or doesn’t work, is critical. Since the FBI and intelligence agencies are exempted from the Whistleblower Protection Act, internal executive-branch procedures are the only protection for employees of those agencies. As the agency mechanisms to protect whistleblowers are in a constant state of adjustment, being able to determine which practices provide relief and which create a false promise of security only comes from observing how they work for actual whistleblowers. My work for the ACLU in other national-security fields, including intelligence oversight and
11

Case 1:13-cv-03994-WHP Document 28 Filed 08/26/13 Page 12 of 12

classification reform, would also be severely damaged by whistleblowers' reluctance to contact

me. Finally, that reluctance would hamper the ACLU's pursuit of its core missions of protecting

individual victims of government misconduct and ensuring that the public receives information

about that misconduct from those who have witnessed it.

32. In sum, the Section 215 call-tracking program compromises my ability to gather

information and give advice that is relevant and necessary to my role and the ACLU's mission of

assisting whistleblowers in safely and legally reporting government misconduct, waste, fraud, or

abuse.

* , *

33. Pursuant to 28 U.S.C. § 1746, I hereby declare and state under the penalty of perjury that the foregoing is true and correct.

Date: August 26, 2013

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Case 1:13-cv-03994-WHP Document 29 Filed 08/26/13 Page 1 of 5

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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

Plaintiffs, v.

DECLARATION OF STEVEN R. SHAPIRO

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

Case No. 13-cv-03994 (WHP) ECF CASE

Defendants.

DECLARATION OF STEVEN R. SHAPIRO I, Steven R. Shapiro, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct: 1. I am the Legal Director of the American Civil Liberties Union (“ACLU”), which is a plaintiff in this case. I submit this declaration in support of the plaintiffs’ motion for a preliminary injunction. I base this declaration on my personal knowledge and on information provided to me by my staff.

Case 1:13-cv-03994-WHP Document 29 Filed 08/26/13 Page 2 of 5
2. For purposes of this declaration, I use “ACLU” to refer to both the American Civil Liberties Union and the American Civil Liberties Union Foundation. The American Civil Liberties Union is a 501(c)(4) nonprofit and nonpartisan organization with approximately 500,000 members nationwide dedicated to the principles of liberty and equality embodied in the Constitution and our nation’s civil-rights laws. It engages in legislative lobbying, public education, and public advocacy. The American Civil Liberties Union Foundation is a 501(c)(3) organization that provides legal representation free of charge to individuals and groups in civilrights and civil-liberties cases. It also engages in public education and advocacy.
3. I have served as the ACLU’s legal director since 1993. In that capacity, I supervise over 100 lawyers, paralegals, and support personnel who work on a wide range of issues, including—to name just a few—national security, police accountability, reproductive rights, LGBT rights, and immigrants’ rights.
4. Given the controversial nature of much of the ACLU’s work, the organization has a strong interest in protecting not only the content of our communications with clients, sources, and allies, but often the very fact of those communications. Many of these communications occur by telephone. For example:
• ACLU lawyers frequently place or receive telephone calls from individuals relating to potential legal representation in suits against the federal government. Among others, this includes calls from prospective whistleblowers who wish either to inform the ACLU of government misconduct or to seek legal counsel about their decision to expose that misconduct. These individuals often insist that the very fact of their communication with the ACLU be kept confidential.
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• Protecting the confidentiality of a client’s identity is also a paramount concern in cases where the client has been granted judicial permission to proceed pseudonymously. In such cases, any disclosure of the client’s identity is generally limited by a protective order that is then subject to judicial enforcement.
• In addition, ACLU staff has had numerous conversations over the years with government sources, including members of the executive and legislative branches, in furtherance of the ACLU’s advocacy efforts. The ground rules for these discussions can include a promise of confidentiality, which would be breached if it became known that the sources were talking to the ACLU, particularly if the fact or timing of those conversations would reveal the likely subject matter of the communications.
• As a nonpartisan organization, the ACLU forms alliances on discrete issues with other organizations across the ideological spectrum. The terms of the cooperation sometimes include a mutual understanding that the collaboration will be kept confidential.
• Finally, ACLU staff speak by telephone with ACLU members and donors. These conversations relate to the ACLU’s work, the relationship that members and donors have with the organization, and other topics.
5. The ACLU can and does take measures to protect the confidentiality of sensitive communications from surveillance by the government or other third parties, including the use of encryption software, when deemed appropriate in the exercise of our professional judgment. Based on conversations with staff, however, my understanding is that current technology does not allow us to shield our telephony metadata from the kind of surveillance at issue here. Thus,
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to our knowledge, there is no way to protect the identity of persons communicating by telephone with the ACLU through Verizon, even in circumstances where that information is especially sensitive, so long as the challenged surveillance program continues.
6. Since 2007, the ACLU has received its telephone service from Verizon Business Network Services, Inc. (“Verizon”). As of the filing of this declaration, the ACLU continues to receive its telephone service from Verizon.
7. Prior to the disclosures about the NSA’s call-tracking program, the ACLU had no knowledge that its telephony metadata was being acquired and retained for years by the government. The ACLU’s agreement with Verizon contains a paragraph that is labeled Customer Consent to Use of Customer Proprietary Network Information (“CPNI”), which defines CPNI to include, among other things, “information relating to the quantity, technical configuration, type, destination, location, and amount of use of the telecommunications services Customer purchases from Verizon, as well as related local and toll billing information, made available to Verizon solely by virtue of Customer’s relationship with Verizon.” That provision further states, “Verizon acknowledges that it has a duty, and Customer has a right, under federal and/or state law to protect the confidentiality of Customer’s CPNI.” Elsewhere, the ACLU’s agreement provides that “Verizon will protect the confidentiality of Customer CPNI in accordance with applicable laws, rules and regulations.”
8. The NSA program at issue in this case poses a real threat to the ability of the ACLU to do its work. In my opinion, there is a genuine risk that people who would otherwise speak on the telephone with the ACLU will refrain from doing so if they believe that the government will be able to learn that they have been communicating with us. Given what we
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understand about the government's surveillance program, I know of nothing we can do to protect those persons from this risk short of ceasing to speak with them on the telephone.
rt ciiic(go eh;
STEVEN R. SHAPIR Dated: August 26, 2013
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Case 1:13-cv-03994-WHP Document 30 Filed 08/26/13 Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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

Plaintiffs, v.

DECLARATION OF CHRISTOPHER DUNN

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

Case No. 13-cv-03994 (WHP) ECF CASE

Defendants.

DECLARATION OF CHRISTOPHER DUNN I, Christopher Dunn, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct: 1. I am the Associate Legal Director of the New York Civil Liberties Union, which is a plaintiff in this case. I submit this declaration in support of the plaintiffs’ motion for a preliminary injunction. I base this declaration on my personal knowledge and on information provided to me by NYCLU staff.
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2. Founded in 1951 as the New York affiliate of the American Civil Liberties Union (“ACLU”), the New York Civil Liberties Union is a 501(c)(4) non-profit, nonpartisan organization that engages in public education and lobbying with respect to constitutional principles of liberty and equality. The NYCLU has more than 40,000 members throughout New York State. It is incorporated in New York and has its principal place of business in New York City. The New York Civil Liberties Union Foundation is a 501(c)(3) non-profit organization that represents clients in lawsuits seeking to advance civil liberties and civil rights, while also engaging in advocacy and public education around these issues. It is incorporated in Delaware and has its principal place of business in New York City. For purposes of this declaration, I use “NYCLU” to refer to both the New York Civil Liberties Union and the New York Civil Liberties Union Foundation.
3. I have served as the NYCLU’s Associate Legal Director since 2002. The NYCLU’s legal department has approximately 15 lawyers, paralegals, and support personnel who work on a wide range of issues, including—to name just a few—national security, police accountability, freedom of speech, freedom of religion, voting rights, reproductive rights, race, gender and sexual orientation discrimination. The NYCLU frequently co-counsels with the ACLU in national security cases brought in the Southern District of New York. See, e.g., Clapper v. Amnesty, 133 S. Ct. 1138 (2013); Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2009).
4. I am familiar with the declaration being filed in this matter by ACLU Legal Director Steven Shapiro. Given the overlap of the work of the NYCLU and ACLU, many of the concerns expressed by Mr. Shapiro on behalf of the ACLU are shared by the NYCLU.
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5. NYCLU legal staff frequently place or receive telephone calls from individuals relating to potential legal representation in suits against state and local governments and sometimes against the federal government. Often, the mere fact that the NYCLU has communicated with these individuals is sensitive. For example, the NYCLU has received calls from employees of the New York City Police Department (“NYPD”) who wished to inform the NYCLU of misconduct within the NYPD. In virtually all of those calls, police employees have insisted that the very fact of their speaking with the NYCLU be kept strictly confidential.
6. NYCLU legal staff often speak on the telephone to communicate with government and industry whistleblowers, legislators and their staffs, and possible litigation or advocacy partners who consider the confidentiality of their associations and communications with the NYCLU essential to their willingness to speak with us. From time to time, NYCLU staff also speak by telephone with the organization’s members.
7. The NYCLU was a customer of Verizon Business Network Services (“Verizon”) until early April 2013. Until then, Verizon provided the NYCLU’s wired communications, including its landlines.
8. Prior to the disclosures about the NSA mass call-tracking program, the NYCLU believed that its telephone communications through Verizon were secure from routine government monitoring.
9. The NSA program at issue in this case poses a substantial threat to the ability of the NYCLU to do its work, which includes public advocacy on controversial subjects, the representation of clients in litigation or in anticipation of litigation, and efforts to lobby elected local, state, and federal officials. I am confident that there are persons who speak on the
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Case 1:13-cv-03994-WHP Document 30 Filed 08/26/13 Page 4 of 4 telephone with our legal staff who will refrain from doing so if they believe that the government will be able to learn of the fact that they have communicated with us, The privacy of such communication is clearly compromised by the government's mass call-tracking program. The preliminary injunctive relief requested in this motion is necessary to restore a sense of comfort and confidence in the confidentiality of the various sensitive telephonic communications that we undertake.
140
CHRISTOPH DUNN Dated: August 26, 2013
New York, N.Y.
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Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 1 of 25

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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

Plaintiffs, v.

DECLARATION OF PATRICK TOOMEY

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

Case No. 13-cv-03994 (WHP) ECF CASE

Defendants.

DECLARATION OF PATRICK TOOMEY I, Patrick Toomey, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct: 1. I am a resident of Brooklyn, New York, over the age of 18. I have personal knowledge of the facts stated in this declaration. 2. I am an attorney for the American Civil Liberties Union and counsel to the plaintiffs in this action. I submit this declaration in support of Plaintiffs’ Motion for Preliminary Injunction.

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 2 of 25
3. Attached hereto as Exhibit 1 is a true and correct copy of the Primary Order, In re Application of the FBI for an Order Requiring the Production of Tangible Things from [Redacted] , No. BR 13-80 (FISA Ct. Apr. 25, 2013). The Primary Order was declassified by the Director of National Intelligence, James R. Clapper, on July 31, 2013. See Office of the Dir. of Nat'l Intelligence, DNI Clapper Declassifies and Releases Telephone Metadata Collection Documents (July 31, 2013), http://1.usa.gov/lbJxued.
4. Attached hereto as Exhibit 2 is a true and correct copy of the Secondary Order, In re Application of the FBI for an Order Requiring the Production of Tangible Things from Verizon Bus. Network Servs., Inc. on Behalf of MCI Commc 'n Servs., Inc. d/b/a Verizon Bus. Servs., No. BR 13-80 (FISA Ct. Apr. 25, 2013). The Secondary Order was acknowledged as authentic by the Director of National Intelligence, James R. Clapper, on June 6, 2013. See Office of the Dir. of Nat'l Intelligence, DNI Statement on Recent Unauthorized Disclosures of Classified Information (June 6, 2013), http://1.usa.gov/13jwuFc.
* * * I declare under penalty of perjury under the laws of the United States and of the State of New York that the forgoing is true and correct.
ta PATRICK TOOME
Dated: August 26, 2013 New York, New York

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 3 of 25
EXHIBIT 1

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 4 of 25
UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, D. C.
IN RE APPLICATION OF THE FEDERAL BUREAU OF INVESTIGATION FOR AN ORDER REQUIRING THE PRODUCTION OF TANGIBLE THINGS FROM
Docket Number: BR
13-8 0

PRIMARY ORDER

A verified application having been made by the Director of the Federal Bureau of

Investigation (FBI) for an order pursuant to the Foreign Intelligence Surveillance Act of

1978 (the Act), Title 50, United States Code (U.S.C.), § 1861, as amended, requiring the

Derived from: Declassify on:

TOP SECRETBSI/INOFORN

P ea

the

12_a t38

aptioned docket

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 5 of 25

TOP SECRET//SI//NOFORN production to the National Security Agency (NSA) of the tangible things described

below, and full consideration having been given to the matters set forth therein, the

Court finds as follows:

1. There are reasonable grounds to believe that the tangible things sought are

relevant to authorized investigations (other than threat assessments) being conducted

by the FBI under guidelines approved by the Attorney General under Executive Order

12333 to protect against international terrorism, which investigations are not being

conducted solely upon the basis of activities protected by the First Amendment to the

Constitution of the United States. [50 U.S.C. § 1861(c)(1)]

2. The tangible things sought could be obtained with a subpoena duces tee=

issued by a court of the United States in aid of a grand jury investigation or with any

other order issued by a court of the United States directing the production of records or

tangible things. [50 U.S.C. § 1861(c)(2)(D)]

3. The application includes an enumeration of the minimization procedures the

government proposes to follow with regard to the tangible things sought. Such

procedures are similar to the minimization procedures approved and adopted as

binding by the order of this Court in Docket Number

and its predecessors. [50

U.S.C. § 1861(c)(1)]

/11

• y

2

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 6 of 25

—TOP SECRETHSIHNOFORN Accordingly,. the Court finds that the application of the United States to obtain

the tangible things, as described below, satisfies the requirements of the Act and, therefore,

IT IS HEREBY ORDERED, pursuant to the authority conferred on this Court by the Act, that the application is GRANTED, and it is

FURTHER ORDERED, as follows:

(1)A. The Custodians of Records of

shall produce to NSA

upon service of the appropriate secondary order, and continue production on an

ongoing daily basis thereafter for the duration of this order, unless otherwise ordered

by the Court, an electronic copy of the following tangible things: all call detail records

or "telephony metadata" 1 created by

B. The Custodian of Records of

111

1i shall produce to NSA upon service of the

appropriate secondary order, and continue production on an ongoing daily basis

1 For purposes of this Order "telephony metadata" includes comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI)
number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call. Telephony metadata does not include the substantive content of any communication, as defined by 18 U.S.C. § 2510(8), or the name, address, or financial information of a subscriber or customer.

3

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 7 of 25

thereafter for the duration of this order, unless otherwise ordered by the Court, an

electronic copy of the following tangible things: all call detail records or "telephony

metadata" created by

for communications (i) between the United States and

abroad; or (ii) wholly within the United States, including local telephone calls.

(2) With respect to any information the FBI receives as a result of this Order (information that is disseminated to it by NSA), the FBI shall follow as minimization procedures the procedures set forth in The Attorney General's Guidelines for Domestic FBI Operations (September 29, 2008).
(3) With respect to the information that NSA receives as a result of this Order, NSA shall strictly adhere to the following minimization procedures:
A. The government is hereby prohibited from accessing business record metadata acquired pursuant to this Court's orders in the above-captioned docket and its predecessors ("BR metadata") for any purpose except as described herein.
B. NSA shall store and process the BR metadata in repositories within secure networks under NSA's control. 2 The BR metadata shall carry unique markings such
2 The Court understands that NSA will maintain the BR metadata in recovery back-up systems for mission assurance and continuity of operations purposes. NSA shall ensure that any access
4

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 8 of 25
TOP SECRETHSI/INOFORN that software and other controls (including user authentication services) can restrict access to it to authorized personnel who have received appropriate and adequate training with regard to this authority. NSA shall restrict access to the BR metadata to authorized personnel who have received appropriate and adequate training.' Appropriately trained and authorized technical personnel may access the BR metadata to perform those processes needed to make it usable for intelligence analysis. Technical personnel may query the BR metadata using selection terms 4 that have not been RASapproved (described below) for those purposes described above, and may share the results of those queries with other authorized personnel responsible for these purposes, or use of the BR metadata in the event of any natural disaster, man-made emergency, attack, or other unforeseen event is in compliance with the Court's Order. 3 The Court understands that the technical personnel responsible for NSA's underlying corporate infrastructure and the transmission of the BR metadata from the specified persons to NSA, will not receive special training regarding the authority granted herein.
5

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 9 of 25

TOP SECRETHSVINOTORN
but the results of any such queries will not be used for intelligence analysis purposes.

An authorized technician may access the BR metadata to ascertain those identifiers that

may be high volume identifiers. The technician may share the results of any such

access, i.e., the identifiers and the fact that they are high volume identifiers, with

authorized personnel (including those responsible for the identification and defeat of

high volume and other unwanted BR metadata from any of NSA's various metadata

repositories), but may not share any other information from the results of that access for

intelligence analysis purposes. In addition, authorized technical personnel may access

the BR metadata for purposes of obtaining foreign intelligence information pursuant to

the requirements of subparagraph (3)C below.

C. NSA shall access the BR metadata for purposes of obtaining foreign

intelligence information only through contact chaining queries of the BR metadata as

described in paragraph 17 of the Declaration of

, attached to the

application as Exhibit A, using selection terms approved as "seeds" pursuant to the

RAS approval process described below. 5 NSA shall ensure, through adequate and

5 For purposes of this Order, "National Security Agency" and "NSA personnel" are defined as
any employees of the National Security Agency/Central Security Service ("NSA/CSS" or "NSA") and any other personnel engaged in Signals Intelligence (SIGINT) operations authorized pursuant to FISA if such operations are executed under the direction, authority, or control of the Director, NSA/Chief, CSS (DIRNSA). NSA personnel shall not disseminate BR metadata outside the NSA unless the dissemination is permitted by, and in accordance with, the requirements of this Order that are applicable to the NSA.
TOP SECRETHSIHNOFORN
6

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 10 of 25

T

• 1 1:

" 1.'

appropriate technical and management controls, that queries of the BR metadata for

intelligence analysis purposes will be initiated using only a selection term that has been

RAS-approved. Whenever the BR metadata is accessed for foreign intelligence analysis

purposes or using foreign intelligence analysis query tools, an auditablc record of the

activity shall be generated. 6

(i) Except as provided in subparagraph (ii) below, all selection terms to be

used as "seeds" with which to query the BR metadata shall be approved by any

of the following designated approving officials: the Chief or Deputy Chief,

Homeland Security Analysis Center; or one of the twenty specially-authorized

Homeland Mission Coordinators in the Analysis and Production Directorate of

the Signals Intelligence Directorate. Such approval shall be given only after the

designated approving official has determined that based on the factual and

practical considerations of everyday life on which reasonable and prudent

persons act, there are facts giving rise to a reasonable, articulable suspicion (RAS)

that the selection term to be queried is associated with

6 This auditable record requirement shall not apply to accesses of the results of RAS-approved queries.
I
e
7

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 11 of 25 provided, however, that NSA's Office of General Counsel (OGC)
TOP SfeR-ET-77S-11/NOFORN 8

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 12 of 25
shall first determine that an selection term reasonabl believed to be used b United States (U.S) person is not regarded as associated with
on the basis of activities that are protected by the First Amendment to the Constitution.
(ii) Selection terms that are currently the subject of electronic surveillance authorized by the Foreign Intelligence Surveillance Court (FISC) based on the FISC's finding of probable cause to believe that they are used by
including those used by U.S. persons, may be deemed approved for querying for the period of FISC-authorized electronic surveillance without review and approval by a designated approving official. The preceding sentence shall not apply to selection terms under surveillance

.

• t _

9

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 13 of 25

pursuant to any certification of the Director of National Intelligence and the Attorney General pursuant to Section 702 of FISA, as added by the FISA Amendments Act of 2008, or pursuant to an Order of the FISC issued under Section 703 or Section 704 of FISA, as added by the FISA Amendments Act of 2008.
(iii) A determination by a designated approving official that a selection term is associated with
shall be effective for: one hundred eighty days for any selection term reasonably believed to be used by a U.S. person; and one year for all other selection terms. 9,10

9 The. Court understands that from time to time the information available to designated

approving officials will indicate that a selection term is or was associated with a Foreign Power

only for a specific and limited time frame. In such cases, a designated approving official may

determine that the reasonable, articulable suspicion standard is met, but the time frame for

which the selection term is or was associated with a Foreign Power shall be specified. The

automated query process described in the

Declaration limits the first hop query

results to the specified time frame. Analysts conducting manual queries using that selection

term shall continue to properly minimize information that may be returned within query results

that fall outside of that timeframe.

I

TOP SECRET//SI//NOFORN
10

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 14 of 25

TOP SECRETI/SY/Nef ORN (iv) Queries of the BR metadata using RAS-approved selection terms may

occur either by manual analyst query or through the automated query process

described below." This automated query process queries the collected BR

metadata (in a "collection store") with RAS-approved selection terms and returns

the hop-limited results from those queries to a "corporate store." The corporate

store may then be searched by appropriately and adequately trained personnel

for valid foreign intelligence purposes, without the requirement that those

searches use only RAS-approved selection terms. The specifics of the automated

query process, as described in the

Declaration, are as follows:

" This automated query process was initially approved by this Court in its Order amending docket number

2012

12 As an added protection in case technical issues prevent the process from verifying that the most up-to-date list of RAS-approved selection terms is being used, this step of the automated process checks the expiration dates of RAS-approved selection terms to confirm that the approvals for those terms have not expired. This step does not use expired RAS-approved selection terms to create the list of "authorized query terms" (described below) regardless of whether the list of RAS-approved selection terms is up-to-date.

TOP SECREV/8-1iNGFORN—

11

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 15 of 25 TOP SECRET/ISIHNOFORis4—
D. Results of any intelligence analysis queries of the BR metadata may be shared, prior to minimization, for intelligence analysis purposes among NSA analysts, subject to the requirement that all NSA personnel who receive query results in any form first
12

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 16 of 25
receive appropriate and adequate training and guidance regarding the procedures and restrictions for the handling and dissemination of such information." NSA shall apply the minimization and dissemination requirements and procedures of Section 7 of United States Signals Intelligence Directive SP0018 (USSID 18) issued on January 25, 2011, to any results from queries of the BR metadata, in any form, before the information is disseminated outside of NSA in any form. Additionally, prior to disseminating any U.S. person information outside NSA, the Director of NSA, the Deputy Director of NSA, or one of the officials listed in Section 7.3(c) of USSID 18 (i.e.,
theDircofSgnalsIteicDro(SI),thepuyDircofSI, the Chief of the Information Sharing Services (ISS) office, the Deputy Chief of the ISS office, and the Senior Operations Officer of the National Security Operations Center) must determine that the information identifying the U.S. person is in fact related to counterterrorism information and that it is necessary to understand the counterterrorism information or assess its importance.' 6 Notwithstanding the above requirements, NSA may share results from intelligence analysis queries of the BR metadata, including U.S. person identifying information, with Executive Branch 15 In addition, the Court understands that NSA may apply the full range of SIGINT analytic
tradecraft to the results of intelligence analysis queries of the collected BR metadata.
16 In the event the Government encounters circumstances that it believes necessitate the
alteration of these dissemination procedures, it may obtain prospectively-applicable modifications to the procedures upon a determination by the Court that such modifications are appropriate under the circumstances and in light of the size and nature of this bulk collection.
TOP SECRET/ISIIINOFORN13

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 17 of 25
personnel (1) in order to enable them to determine whether the information contains exculpatory or impeachment information or is otherwise discoverable in legal proceedings or (2) to facilitate their lawful oversight functions.
E. BR metadata shall be destroyed no later than five years (60 months) after its initial collection.
F. NSA and the National Security Division of the Department of Justice (NSD/DoJ) shall conduct oversight of NSA's activities under this authority as outlined below.
(i) NSA's OGC and Office of the Director of Compliance (ODOC) shall ensure that personnel with access to the BR metadata receive appropriate and adequate training and guidance regarding the procedures and restrictions for collection, storage, analysis, dissemination, and retention of the BR metadata and the results of queries of the BR metadata. NSA's OGC and ODOC shall further ensure that all NSA personnel who receive query results in any form first receive appropriate and adequate training and guidance regarding the procedures and restrictions for the handling and dissemination of such information. NSA shall maintain records of all such training. 17 OGC shall provide NSD/DoJ with copies
17 The nature of the training that is appropriate and adequate for a particular person will depend on the person's responsibilities and the circumstances of his access to the BR metadata or the results from any queries of the metadata.
TOP SECRETI/SIHN °PORN 14

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 18 of 25
of all formal briefing and/or training materials (including all revisions thereto) used to brief/train NSA personnel concerning this authority.
(ii) NSA's ODOC shall monitor the implementation and use of the software and other controls (including user authentication services) and the logging of auditable information referenced above.
(iii) NSA's OGC shall consult with NSD/DoJ on all significant legal opinions that relate to the interpretation, scope, and/or implementation of this authority. When operationally practicable, such consultation shall occur in advance; otherwise NSD shall be notified as soon as practicable.
(iv) At least once during the authorization period, NSA's OGC, ODOC, NSD/DoJ, and any other appropriate NSA representatives shall meet for the purpose of assessing compliance with this Court's orders. Included in this meeting will be a review of NSA's monitoring and assessment to ensure that only approved metadata is being acquired. The results of this meeting shall be reduced to writing and submitted to the Court as part of any application to renew or reinstate the authority requested herein.
(v) At least once during the authorization period, NSD/DoJ shall meet with NSA's Office of the Inspector General to discuss their respective oversight responsibilities and assess NSA's compliance with the Court's orders.
TOP SECRETHETINOTORN 15

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 19 of 25
(vi) At least once during the authorization period, NSA's OGC and NSD/DoJ shall review a sample of the justifications for RAS approvals for selection terms used to query the BR metadata.
(vii) Prior to implementation, all proposed automated query processes shall be reviewed and approved by NSA's OGC, NSD/DoJ, and the Court. G. Approximately every thirty days, NSA shall file with the Court a report that includes a discussion of NSA's application of the RAS standard, as well as NSA's implementation of the automated query process. In addition, should the United States seek renewal of the requested authority, NSA shall also include in its report a description of any significant changes proposed in the way in which the call detail records would be received from the Providers and any significant changes to the controls NSA has in place to receive, store, process, and disseminate the BR metadata. Each report shall include a statement of the number of instances since the preceding report in which NSA has shared, in any form, results from queries of the BR metadata that contain United States person information, in any form, with anyone outside NSA. For each such instance in which United States person information has been shared, the report shall include NSA's attestation that one of the officials authorized to approve such disseminations determined, prior to dissemination, that the information was related to counterterrorism information and necessary to understand
•• • 16

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 20 of 25
counterterrorism information or to assess its importance. This authorization regarding

of July, 2013, at 5:00 p.m., Eastern Time.

Signed

G4 - 25 - 2013 P02:26

Date

Time

Eastern Time

expires on the rill's day

4111111
ROG rd.:Iry P O ld
Jud nited States Foreign
Intelligence Surveillance Court

17

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 21 of 25
EXHIBIT 2

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 22 of 25 TOP SECRET//SI//NOFORN
UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, D.C.

IN RE APPLICATION OF THE

FEDERAL BUREAU OF INVESTIGATION

FOR AN ORDER REQUIRING THE

Docket Number: BR ¯

PRODUCTION OF TANGIBLE THINGS

FROM VERIZON BUSINESS NETWORK SERVICES, INC. ON BEHALF OF MCI COMMUNICATION

15-80

SERVICES, INC. D/B/A VERIZON

BUSINESS SERVICES.

SECONDARY ORDER This Court having found that the Application of the Federal Bureau of Investigation (FBI) for an Order requiring the production of tangible things from Verizon Business Network Services, Inc. on behalf of MCI Communication Services Inc., d/b/a Verizon Business Services (individually and collectively "Verizon") satisfies the requirements of 50 U.S.C. § 1861, IT IS HEREBY ORDERED that, the Custodian of Records shall produce to the National Security Agency (NSA) upon service of this Order, and continue production

Derived from: Declassify on:

TOP SECRET//SI//NOFORN
Pleadings in the above-captioned docket 12 April 2038

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 23 of 25 TOP SECRET//SI//NOFORN
on an ongoing daily basis thereafter for the duration of this Order, unless otherwise ordered by the Court, an electronic copy of the following tangible things: all call detail records or "telephony metadata" created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls. This Order does not require Verizon to produce telephony metadata for communications wholly originating and terminating in foreign countries. Telephony metadata includes comprehensive communications routing information,. including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call. Telephony metadata does not include the substantive content of any communication, as defined by 18 U.S.C. § 2510(8), or the name, address, or financial information of a subscriber or customer.
IT IS FURTHER ORDERED that no person shall disclose to any other person that the FBIor NSA has sought or obtained tangible things under this Order, other than to: (a) those persons to whom disclosure is necessary to comply with such Order; (b) an attorney to obtain legal advice or assistance with respect to the production of things in response to the Order; or (c) other persons as permitted by the Director of the FBI or the Director’s designee. A person to whom disclosure is made pursuant to (a), (b), or (c)
TOP SECRET//SI//NOFORN

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 24 of 25 TOP SECRET//SI//NOFORN
shall be subject to the nondisclosure requirements applicable to a person to whom an Order is directed in the same manner as such person. Anyone who discloses to a person described in (a), (b), or (c) that the FBI or NSA has sought or obtained tangible things pursuant to this Order shall notify such person of the nondisclosure requirements of this Order. At the request of the Director of the FBI or the designee of the Director, any person making or intending to make a disclosure under (a) or (c) above shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request.
IT IS FURTHER ORDERED that service of this Order shall be by a method agreed upon by the Custodian of Records of Verizon and the FBI, and if no agreement is reached, service shall be personal.
-- Remainder of page intentionally left blank. --
TOP SECRET//SI//NOFORN 3

Case 1:13-cv-03994-WHP Document 31 Filed 08/26/13 Page 25 of 25 TOP SECRET//SI//NOFORN

This authorization requiring the production of certain call detail records or "telephony metadata" created by Verizon expires on the I~t~ day of July, 2013, at 5:00 p.m., Eastern Time.

Signed Date

°013 P09 :’p6 Eastern Time Time

I, Beverly C. Queen, Chief Deputy Clerk, FISC, certify that this document
is a true and correct copy of the original~,~

TOP SECRET//SI//NOFORN 4

 
 Case 1:13-cv-03994-WHP Document 32 Filed 08/26/13 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION; NEW YORK CIVIL LIBERTIES UNION; and NEW YORK CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs,
v.
JAMES R. CLAPPER, in his official capacity as Director of National Intelligence; KEITH B. ALEXANDER, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service; CHARLES T. HAGEL, in his official capacity as Secretary of Defense; ERIC H. HOLDER, in his official capacity as Attorney General of the United States; and ROBERT S. MUELLER III, in his official capacity as Director of the Federal Bureau of Investigation,
Defendants.

13 Civ. 3994 (WHP) ECF Case Notice of Motion

PLEASE TAKE NOTICE that upon the accompanying memorandum of law in support of defendants’ motion to dismiss the complaint, dated August 26, 2013, and the exhibits thereto, defendants James R. Clapper, in his official capacity as Director of National Intelligence; Keith B. Alexander, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service; Charles T. Hagel, in his official capacity as Secretary of Defense; Eric H. Holder, in his official capacity as Attorney General of the United States; and Robert S. Mueller, in his official capacity as Director of the Federal Bureau of Investigation, will move this Court, before the Honorable William J. Pauley, at the United States Courthouse, 500 Pearl Street,

Case 1:13-cv-03994-WHP Document 32 Filed 08/26/13 Page 2 of 2

New York, New York, for an Order dismissing the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
PLEASE TAKE FURTHER NOTICE that pursuant to the Court’s Corrected Scheduling Order dated August 8, 2013, opposition papers, if any, are to be served on or before September 26, 2013. Dated: New York, New York
August 26, 2013

STUART F. DELERY Assistant Attorney General
JOSEPH H. HUNT Director
ANTHONY J. COPPOLINO Deputy Director
By: /s/ James Gilligan JAMES J. GILLIGAN Special Litigation Counsel MARCIA BERMAN Senior Trial Counsel
BRYAN DEARINGER Trial Attorney
Civil Division, Federal Programs Branch U.S. Department of Justice 20 Massachusetts Avenue, N.W. Washington, DC 20001 Tel.: (202) 514-3358

PREET BHARARA United States Attorney for the Southern District of New York Attorney for Defendants
By: /s/ David S. Jones DAVID S. JONES TARA M. La MORTE JOHN D. CLOPPER CHRISTOPHER HARWOOD Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 Tel. (212) 6372739/2746/2716/2728 Fax (212) 637-2730 david.jones6@usdoj.gov tara.lamorte2@usdoj.gov john.clopper@usdoj.gov christopher.harwood@usdoj.gov

- 2 -

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Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 1 of 52

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION; NEW YORK CIVIL LIBERTIES UNION; and NEW YORK CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs,
v.
JAMES R. CLAPPER, in his official capacity as Director of National Intelligence; KEITH B. ALEXANDER, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service; CHARLES T. HAGEL, in his official capacity as Secretary of Defense; ERIC H. HOLDER, in his official capacity as Attorney General of the United States; and ROBERT S. MUELLER III, in his official capacity as Director of the Federal Bureau of Investigation,
Defendants.

13 Civ. 3994 (WHP) ECF Case

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS THE COMPLAINT

STUART F. DELERY Assistant Attorney General
JOSEPH H. HUNT Director
ANTHONY J. COPPOLINO Deputy Director
JAMES J. GILLIGAN Special Litigation Counsel
MARCIA BERMAN Senior Trial Counsel
BRYAN DEARINGER Trial Attorney U.S. Department of Justice
Washington, D.C.

PREET BHARARA United States Attorney for the Southern District of New York
DAVID S. JONES TARA M. La MORTE JOHN D. CLOPPER CHRISTOPHER HARWOOD Assistant United States Attorneys 86 Chambers Street, 3rd Floor Tel. No. (212) 637-2739 (Jones) Fax No. (212) 637-2730 david.jones6@usdoj.gov tara.lamorte2@usdoj.gov john.clopper@usdoj.gov christopher.harwood@usdoj.gov

Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 2 of 52

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT……………………………………………………………….. 1

STATEMENT OF FACTS……………………………………………………………………… 2

A. Statutory Background.......................................................................................... 2

B. The Collection of Telephony Metadata Records Authorized by the FISC…….. 4

C. Plaintiffs’ Allegations…………………………………………………………… 7

ARGUMENT………………………………………………………………………………..….. 9

POINT I:

THE COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFFS HAVE NOT ESTABLISHED THEIR STANDING .…………………………… 9

A. The Requirements of Article III Standing ..…………………………………..…. 9

B. Plaintiffs Allege Injuries That Are Speculative and Conjectural, Not Certainly Impending……………………………………………………………. 11

POINT II: CONGRESS IMPLIEDLY PRECLUDED JUDICIAL REVIEW OF PLAINTIFFS’ STATUTORY CLAIM .………………………………………. 14

POINT III: THE GOVERNMENT’S BULK COLLECTION OF TELEPHONY METADATA IS AUTHORIZED UNDER SECTION 215…………………… 19

A. The Telephony Metadata Collected Under the FISC’s Orders Are “Relevant” to Authorized National Security Investigations ..…………………. 20

1. Congress Intended Section 215 To Incorporate a Broad Concept of Relevance, Drawn from the Legal Meaning Applied in Grand Jury, Civil, and Administrative Proceedings, That Also Takes Into Account the Special Characteristics of the Terrorism Investigations to Which It Applies……………………… 21

2. Congress Has Legislatively Ratified the Construction of Section 215 as Allowing for the Bulk Collection of Telephony Metadata Records………………………………………….. 26

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3. Telephony Metadata Are “Relevant” Within the Meaning of Section 215 Because Bulk Collection of the Data Enhances the Government’s Ability To Detect Terrorist Operatives and Prevent Terrorist Attacks………………….… 28

B. Nothing in the Text of Section 215 Prohibits the Collection of Records “as They Are Generated”………………………………………….. 29

POINT IV: THE GOVERNMENT’S COLLECTION OF TELEPHONY METADATA DOES NOT VIOLATE PLAINTIFFS’ FOURTH AMENDMENT RIGHTS .…………………………………………………….. 31

A. Plaintiffs Have No Fourth Amendment Privacy Interest in Telephony Metadata……………………………………………………………………….. 31

B. The Government’s Acquisition of Metadata Is Reasonable…………………… 35

POINT V:

PLAINTIFFS HAVE NOT PLAUSIBLY ALLEGED THAT THE GOVERNMENT’S COLLECTION OF TELEPHONY METADATA VIOLATES THE FIRST AMENDMENT ……………………………………. 37

A. Plaintiffs’ Failure To Allege An Actionable Fourth Amendment Claim Is Also Fatal To Their First Amendment Claim ................................................ 37

B. Plaintiffs Make No Allegations That the Government’s Collection of Telephony Metadata Is Intended to Curtail Protected Expressive or Associational Activity……………………………………………………….… 39

CONCLUSION……………………………………………………………………………….. 40

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TABLE OF AUTHORITIES

Cases

Page(s)

ACLU Found. of S. California v. Barr, 952 F.2d 457 (D.C. Cir. 1991) ................................................................................................ 38

Am. Civil Liberties Union v. Nat'l Sec. Agency, 493 F.3d 644 (6th Cir. 2007) .................................................................................................. 38

Ashcroft v. Iqbal,, 556U.S. 662 (2009).......................................................................................................... passim

Atkins v. Parker, 472 U.S. 115 (1985)................................................................................................................ 28

Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822 (2002)................................................................................................................ 36

Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984) …………………….........……………. 16, 19

Block v. N. Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273 (1983)................................................................................................................ 16

C.I.A. v. Sims, 471 U.S. 159 (1985)................................................................................................................ 25

Carrillo Huettel, LLP v. U.S. S.E.C., 2011 WL 601369 (S.D. Cal. Feb. 11, 2011) .......................................................................... 22

Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002).................................................................................................. 5, 6

Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013) ................................................................................................... passim

Conopco, Inc. v. Roll Int'l, 231 F.3d 82 (2d Cir. 2000) ..................................................................................................... 5

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .......................................................................................................... 9, 10

Dew v. United States, 192 F.3d 366 (2d Cir. 1999) .................................................................................................. 19

E.E.O.C. v. Shell Oil Co., 466 U.S. 54 (1984) .......................................................................................................... 21, 28

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F.A.A. v. Cooper, 132 S. Ct. 1441 (2012) .......................................................................................................... 15
F.T.C. v. Invention Submission Corp., 965 F.2d 1086 (D.C. Cir. 1992) ............................................................................................ 22
FDIC v. Meyer, 510 U.S. 471 (1994) .............................................................................................................. 15
Forest Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009) ...............................................................................................................28
Gordon v. Warren Consol. Bd. of Educ., 706 F.2d 778 (6th Cir. 1983) ................................................................................................. 38
Goshawk Dedicated Ltd. v. Am. Viatical Servs., LLC, 2007 WL 3492762 (N.D. Ga. Nov. 5, 2007) .......................................................................... 22
Guest v. Leis, 255 F.3d 325 (6th Cir. 2001) ...................................................................................................33
Haig v. Agee, 453 U.S. 280 (1981).......................................................................................................... 28, 36
In re Adelphia Commc'ns Corp., 338 B.R. 546 (Bankr. S.D.N.Y. 2005) .................................................................................... 22
In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d) 830 F. Supp. 2d 114 (E.D. Va. 2011) ............................................................................... 19, 33
In re Application of the United States, 632 F. Supp. 2d 202 (E.D.N.Y. 2008) .................................................................................... 30
In re Application of U.S. for an Order for Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F. Supp. 2d 448 (S.D.N.Y. 2006) ........................................ 30
In re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 551 F.3d 1004 (Foreign Int. Surv. Ct. Rev. 2008) .................................................................. 36
In re Grand Jury Proceedings, 616 F.3d 1186 (10th Cir. 2010) .............................................................................................. 21
In re Grand Jury Proceedings: Subpoenas Duces Tecum, 827 F.2d 301 (8th Cir. 1987) .............................................................................................22, 35
In re Motion for Release of Court Records, 526 F. Supp. 2d 484 (Foreign Intel. Surv. Ct. 2007) ................................................................ 3
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In re Subpoena Duces Tecum, 228 F.3d 341 (4th Cir. 2000) .................................................................................................. 22
Jabara v. Kelley, 476 F. Supp. 561 (E.D. Mich. 1979)....................................................................................... 38
Jewel v. Nat'l Sec. Agency, 2013 WL 3829405 (N.D. Cal. July 23, 2013)..........................................................................17
Katz v. United States, 389 U.S. 347 (1967)................................................................................................................ 32
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111(2d Cir. 2010)....................................................................................................... 7
Laird v. Tatum, 408 U.S. 1 (1972).............................................................................................................. 14, 39
Langford v. Chrysler Motors Corp., 513 F.2d 1121 (2d Cir. 1975).................................................................................................. 19
Lorillard v. Pons, 434 U.S. 575 (U.S. 1978)........................................................................................................ 28
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).......................................................................................................... 10, 14
Maryland v. King, 133 S. Ct. 1958 (2013) ...................................................................................................... 35, 36
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012) ....................................................................................................... 15-16
McLean v. United States, 566 F.3d 391 (4th Cir. 2009) .................................................................................................. 23
Medtronic Sofamor Danek, Inc. v. Michelson, 229 F.R.D. 550 (W.D. Tenn. 2003) ........................................................................................ 22
Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)................................................................................................................ 39
Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990).......................................................................................................... 36, 37
Minnesota v. Carter, 525 U.S. 83 (1998) ................................................................................................................ 35
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N.L.R.B. v. Am. Med. Response, Inc., 438 F.3d 188 (2d Cir. 2006).............................................................................................. 21, 23
N.L.R.B. v. Amax Coal Co., 453 U.S. 322 (1981).................................................................................................................22
Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).......................................................................................................... 25, 29
Oneida Indian Nation of New York v. State of N.Y., 691 F.2d 1070 (2d Cir. 1982).................................................................................................. 27
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978).................................................................................................................21
PBGC. ex rel. St. Vincent Catholic Med. Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705 (2d Cir. 2013) ................................................................................. 9
Port Washington Teachers' Ass'n v. Bd. of Educ. of Port Washington Union free Sch. Dist., 478 F.3d 494 (2d Cir. 2007).................................................................................................... 14
Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008) .................................................................................................. 33
Rakas v. Illinois, 439 U.S. 128 (1978)................................................................................................................ 35
Redd v. City of Enter., 140 F.3d 1378 (11th Cir. 1998) .............................................................................................. 38
Reporters Comm. for Freedom of Press v. Am. Tel. & Tel. Co., 593 F.2d 1030 (D.C. Cir. 1978) .................................................................................. 38, 39, 40
S.E.C. v. Jerry T. O'Brien, Inc., 467 U.S. 735 (1984)................................................................................................................ 34
Smith v. Bowersox, 159 F.3d 345 (8th Cir. 1998) .................................................................................................. 23
Smith v. Maryland, 442 U.S. 735 (1979)......................................................................................................... passim
Socialist Workers Party v. Attorney Gen. of U.S., 510 F.2d 253 (2d Cir. 1974).................................................................................................... 39
Steagald v. United States, 451 U.S. 204 (1981)................................................................................................................ 35
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Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998).................................................................................................................. 10
United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989) .................................................................................................. 39
United States v. Anderson-Bagshaw, 2012 WL 774964 (N.D. Ohio Mar. 8, 2012) ...........................................................................34
United States v. Forrester, 512 F.3d 500 (9th Cir. 2008) .................................................................................................. 33
United States v. Gering, 716 F.2d 615 (9th Cir. 1983) ...................................................................................................38
United States v. Hill, 459 F.3d 966 (9th Cir. 2006) .................................................................................................. 22
United States v. Jones, 132 S. Ct. 945 (2012) ........................................................................................................ 32, 34
United States v. Kennedy, 81 F. Supp. 2d 1103 (D. Kan. 2000) ....................................................................................... 33
United States v. Martinez-Fuerte, 428 U.S. 543 (1976).......................................................................................................... 36, 37
United States v. Mayer, 503 F.3d 740 (9th Cir. 2007) .................................................................................................. 38
United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010) ................................................................................................ 34
United States v. Merrick Sponsor Corp., 421 F.2d 1076 (2d Cir. 1970)................................................................................................... 5
United States. v. Miller, 425 U.S. 435 (1976) ……………………………………………………………. 18-19, 33, 34
United States v. Mitchell, 445 U.S. 535 (1980) ……………………………………………………………………….. 15
United States v. R. Enterprises, Inc., 498 U.S. 292 (1991).......................................................................................................... 21, 23
United States v. Ramsey, 431 U.S. 606 (1977).................................................................................................................38
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United States v. Rigmaiden, 2013 WL 1932800 (D. Ariz. May 8, 2013) ........................................................................... 35
United States v. Shabani, 513 U.S. 10 (1994).................................................................................................................. 23
United States v. Smith, 426 F.3d 567 (2d Cir. 2005) .................................................................................................. 36
United States v. Upham, 168 F.3d 532 (1st Cir. 1999) ................................................................................................... 22
Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982).................................................................................................................. 9
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995).......................................................................................................... 35, 36
Whitmore v. Arkansas, 495 U.S. 149 (1990)................................................................................................................ 10
Zurcher v. Stanford Daily, 436 U.S. 547 (1978).......................................................................................................... 38, 39
STATUTES 5 U.S.C. § 701......................................................................................................................... 15, 18 5 U.S.C. § 702........................................................................................................................... 8, 15 18 U.S.C. § 2703........................................................................................................................... 30 18 U.S.C. § 2712...................................................................................................................... 16,17 50 U.S.C. § 1801........................................................................................................................... 18 50 U.S.C. § 1803..........................................................................................................................3, 4 50 U.S.C. § 1806..................................................................................................................... 17, 18 50 U.S.C. § 1821 …………………………………………………………………………….…. 18 50 U.S.C. § 1825 …………………………………………………………………………… 17, 18 50 U.S.C. § 1841 …………………………………………………………………………..…… 18 50 U.S.C. § 1845 …………………………………………………………………………… 17, 18
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50 U.S.C. § 1861.................................................................................................................... passim 50 U.S.C. § 1862....................................................................................................................... 7, 26 50 U.S.C. § 1871....................................................................................................................... 7, 27 50 U.S.C.. § 1881a ........................................................................................................................ 12
RULES AND REGULATIONS 47 C.F.R. § 42.6 ............................................................................................................................ 30 FEDERAL RULES OF CIVIL PROCEDURE Fed. R. Civ. P. 12(b)(6)................................................................................................................... 7 Fed. R. Civ. P. 26(b)(1)................................................................................................................. 24
FEDERAL RULES OF CRIMINAL PROCEDURE Fed. R. Crim. P. 41(e)(2)(B) ......................................................................................................... 22
LEGISLATIVE MATERIAL S. 2369, 109th Cong., 2d Sess. (2006) ..........................................................................................24 S. Rep. No. 109-85 (2005) …………………………………………………………………..…. 26 S. Rep. No. 111-92 (2009) …………………………………………………………………..…. 28 S. Rep. No. 112-13 (2011) ………………………………………………………………...…… 28 H.R. Rep. No. 94-1656 (1976) ..................................................................................................... 16 H.R. Rep. 109-174 (2005)........................................................................................... 18, 23, 25, 26 151 Cong. Rec. S13636 (Dec. 15, 2005) ..................................................................................... 23 151 Cong. Rec. S14275-01 (2005) .............................................................................................. 24 152 Cong. Rec. H581-02 (2006) .................................................................................................. 24 152 Cong. Rec. S1325 (Feb. 15, 2006) ........................................................................................ 25 152 Cong. Rec. S1379 (Feb. 16, 2006)..........................................................................................23
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Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 11 of 52 152 Cong. Rec. S1598-03 (2006) .......................................................................................... 23, 24 156 Cong. Rec. H838 (Feb. 25, 2010) ......................................................................................... 27 156 Cong. Rec. S2109 (Mar. 25, 2010) ........................................................................................ 27 OTHER AUTHORITIES D. Kris & J. Wilson, National Security Investigations & Prosecutions (2d ed. 2012) ……… 4, 17
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PRELIMINARY STATEMENT Plaintiffs seek to invalidate an important element of the Government’s efforts to protect the Nation from the very real and unrelenting threat of terrorist attack. Specifically, Plaintiffs challenge the Government’s bulk collection of “telephony metadata,” business records created by (and belonging to ) telecommunications service providers that include such information as the time and duration of calls made, and the numbers dialed, but not the content of anyone’s calls, or their names and addresses. Collection of these records, which has been repeatedly authorized by the Foreign Intelligence Surveillance Court (FISC) as consistent with governing law, permits National Security Agency (NSA) analysts, acting under strict controls imposed by FISC orders, to detect communications between foreign terrorists and any of their contacts located in the United States. Plaintiffs maintain that this activity is unauthorized by the Foreign Intelligence Surveillance Act (FISA), and violates the First and Fourth Amendments. For the reasons discussed herein, the Court lacks jurisdiction to entertain these claims, and Plaintiffs fail in any event to state claims on which relief can be granted. Thus, the Complaint should be dismissed. First, Plaintiffs’ Complaint fails to establish their standing to sue, as their alleged injuries are entirely speculative. The FISC’s orders limit review of the metadata for intelligence purposes to those records responsive to queries conducted using identifiers (e.g., telephone numbers) chosen based on reasonable, articulable suspicion that they are associated with foreign terrorist organizations approved for targeting by the FISC. There is no non-speculative basis to expect that queries of the metadata under this standard will return information about calls either made by Plaintiffs, or made to them by others. Thus, Plaintiffs’ allegations that records of their calls could be used to glean sensitive information about their work and clients, and that persons with whom they collaborate could be “chilled” by that prospect from contacting them, are wholly conjectural. Second, Congress impliedly precluded review of Plaintiffs’ statutory claim, that the

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bulk collection of telephony metadata exceeds the Government’s authority under FISA. FISA’s detailed statutory scheme for judicial review of specified intelligence activities conducted under its purview reflects a Congressional purpose to preclude third parties such as Plaintiffs from mounting FISA-based challenges to FISC business records orders in federal district court.
Apart from these jurisdictional deficiencies, the Government’s collection of telephony metadata is lawful under FISA and the Constitution, and the Complaint states no plausible claim to the contrary. As the FISC repeatedly has found (as recently as last month), telephony metadata are relevant to authorized counter-terrorism investigations, and their collection by the Government is authorized by FISA. Plaintiffs also fail to state a Fourth Amendment claim. There has been no search or seizure of their property or effects, and, as the Supreme Court held in Smith v. Maryland, 442 U.S. 735 (1979), telephone subscribers have no protected privacy interest in the type of information at issue here. In addition, even if the Government’s conduct implicated a protected Fourth Amendment interest, the bulk collection of telephony metadata would be “reasonable” and permissible in light of the strong national interest in preventing terrorist attacks, and the minimal intrusion on individual privacy. Finally, Plaintiffs fail to state a First Amendment claim, because intelligence-gathering conducted in a manner consistent with the Fourth Amendment, for purposes unrelated to the suppression of protected speech or association, does not violate the First Amendment. For these reasons, elaborated below, the Court should reject Plaintiffs’ effort to preclude the use of this important intelligence tool.
STATEMENT OF FACTS A. Statutory Background Congress enacted FISA to authorize and regulate certain governmental surveillance of communications and other activities conducted for purposes of gathering foreign intelligence. In enacting FISA, Congress also created the FISC, an Article III court of 11 appointed U.S. district
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judges with authority to consider applications for and grant orders authorizing electronic surveillance and other forms of intelligence-gathering by the Government. 50 U.S.C. § 1803(a); see In re Motion for Release of Court Records, 526 F. Supp. 2d 484, 486 (F.I.S.C. 2007).
At issue here is the “business records” provision of FISA, 50 U.S.C. § 1861, enacted by section 215 of the USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001) (“Section 215”). Section 215 authorizes the FISC to issue an order for the “production of any tangible things (including books, records, papers, documents, and other items) for an investigation [1] to obtain foreign intelligence information not concerning a United States person or [2] to protect against international terrorism” (provided, in the case of a counter-terrorism investigation of a “United States person,” that “such investigation … is not conducted solely upon the basis of activities protected by the first amendment to the Constitution”). 50 U.S.C. § 1861(a)(1). The records must be of a type obtainable by either a grand jury subpoena, or an order issued by a U.S. court directing the production of records or tangible things. Id. § 1861(c)(2)(D).
The Government’s application for an order under Section 215 must include, among other things, a statement of facts showing that there are “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation … to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism.” Id. § 1861(b)(2)(A). The investigation must be authorized and conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor thereto). Id. § 1861(a)(2)(A), (b)(2)(A). Information acquired from the records or other tangible items received in response to a Section 215 order “concerning any United States person may be used and disclosed by [the Government] without the consent of [that] person only in accordance with … minimization procedures,” adopted by the Attorney General and enumerated in the Government’s application, that “minimize the retention, and prohibit the dissemination, of
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nonpublicly available information concerning unconsenting United States persons consistent with the [Government’s] need … to obtain, produce, and disseminate foreign intelligence information.” Id. § 1861(b)(2)(B), (g)(2), (h). The FISC must find that these requirements have been met before it issues the requested order, which in turn must direct that the minimization procedures described in the application be followed. Id. § 1861(c)(1).
Section 215 includes a scheme providing for judicial review of a business records order, but only in limited circumstances. Specifically, it allows “[a] person receiving a production order [to] challenge the legality of that order” by filing a petition with the “review pool” of FISC judges designated under 50 U.S.C. § 1803(e)(1) to review production orders under Section 215. Id. § 1861(f)(1), (2)(A)(i). A “pool” judge considering a petition to modify or set aside a production order may grant the petition if the judge finds that the order does not meet the requirements of Section 215 or “is otherwise unlawful.” Id. § 1861(f)(2)(B). Thus, a production order can be set aside if it exceeds the authority conferred by Section 215 or is unconstitutional. 1 D. Kris & J. Wilson, National Security Investigations & Prosecutions § 19:10 at 714 (2d ed. 2012) (“Kris & Wilson”). Either the Government or a recipient of a production order may appeal the decision of the pool judge to the FISC Court of Review, with review available thereafter on writ of certiorari in the Supreme Court. 50 U.S.C. § 1861(f)(3); see id. § 1803(b). Section 215’s carefully circumscribed provisions for judicial review were added when Congress reauthorized the USA PATRIOT Act in 2006, and these provisions authorized contested litigation before the FISC for the first time. 1 Kris & Wilson §5:5, 19:7 (2d ed. 2012). The FISA does not provide for review of Section 215 orders at the behest of third parties.
B. The Collection of Telephony Metadata Records Authorized by the FISC Plaintiffs challenge the Government’s exercise of authority, as reflected in a secondary order of the FISC, to collect telephony metadata records in bulk. Compl. ¶ 30, citing In re
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Application of the FBI for an Order Requiring the Production of Tangible Things [etc.], Dkt. No. BR 13-80, Secondary Order 1-2 (F.I.S.C. Apr. 25, 2013) (the “Secondary Order”) (Exhibit 1, hereto). The Secondary Order was issued in conjunction with, and on the same day as, a primary order in which the FISC granted the Government’s application for production of these records, finding “reasonable grounds to believe that the [records] sought are relevant to authorized investigations … being conducted by the FBI … to protect against terrorism.” In re Application of the FBI for an Order Requiring the Production of Tangible Things [etc.], Dkt. No. BR 13-80, Primary Order 1-2 (F.I.S.C. Apr. 25, 2013) (the “Primary Order”) (Exhibit 2, hereto). 1
These Orders directed the daily production to NSA of electronic copies of “all call detail records, or ‘telephony metadata,’” created by a recipient telecommunications service provider for calls to, from, or wholly within the United States. Primary Order at 3-4; Secondary Order at 1-2. “Telephony metadata” is defined by the Orders as “comprehensive communications routing information” including but not limited to “originating and terminating telephone number[s], International Mobile Subscriber Identity (IMSI) number[s], International Mobile Station Equipment Identity (IMEI) number[s], trunk identifier[s], telephone calling card numbers, and time and duration of call.” Primary Order at 3 n.1. By the express terms of the Orders, “[t]elephony metadata does not include the name, address, or financial information of a subscriber or customer.” Id.; Secondary Order at 2. The Court’s Orders do not permit the Government to listen to or record the contents of any telephone conversations.
As required by FISA, the terms of the Primary Order direct the Government to comply with “minimization procedures” that strictly limit the extent to which information received under
1 The Court may consider the Secondary Order on this motion, as it is specifically referenced in and integral to the Complaint. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The Court may take judicial notice of the publicly available portions of the Primary Order as an official judicial act. See Conopco, Inc. v. Roll Int’l, 231 F.3d 82, 86 n.3 (2d Cir. 2000); United States v. Merrick Sponsor Corp., 421 F.2d 1076, 1079 n.2 (2d Cir. 1970).
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the FISC’s Orders can be reviewed, used, or disseminated, and prevent Government personnel from indiscriminately sifting through the data. See 50 U.S.C § 1861(b)(2)(B), (g)-(h); Primary Order at 4-14. The metadata must be stored by NSA in secure networks with access restricted to authorized personnel who have received appropriate training. Primary Order at 4-5. NSA analysts may “query” (electronically search) the metadata “for purposes of obtaining foreign intelligence information” – that is, to identify terrorism-related communications – only when there is reasonable, articulable suspicion, based on specific facts, that the “identifier” (e.g., a telephone number) used to query the database is associated with a specific foreign terrorist organization that was previously identified to and approved for targeting by the FISC. Primary Order at 6-8; DNI Statement on Recent Unauthorized Disclosures of Classified Information (June 6, 2013) (“DNI Statement”) (Exhibit 3, hereto) at 2.2 Only a small number of NSA officials designated by the Primary Order are authorized to make findings of reasonable, articulable suspicion, and NSA’s Office of General Counsel (OGC) must review such findings for numbers reasonably believed to be used by United States persons, to ensure the findings are not based on activities protected by the First Amendment. Primary Order at 7-9. Although the FISC has authorized the collection and maintenance of large amounts of metadata, only those records responsive to queries based on approved identifiers may be disseminated. See id. at 12-13. Therefore, “only a small fraction of the records are ever reviewed.” DNI Statement at 2.
The results of these “contact-chaining queries,” Primary Order at 6, following analysis by NSA, may be shared with the FBI and allow Government investigators to discover persons, including persons (and associates of persons) located in the United States, who have been in contact with known or suspected terrorist organizations and may themselves be engaged in
2 The Court may consider this statement on the Government’s motion to dismiss because it is a document “of which [P]laintiffs had possession and relied on in bringing suit.” Chambers, 282 F.3d at 152 (internal quotation marks and citation omitted); see Compl. ¶ 31.
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terrorist activity. DNI Statement at 1-2; see Primary Order at 4. However, before the NSA may disseminate information about a U.S. person outside the agency, a high-ranking NSA official “must determine that the information identifying the U.S. person is in fact related to counterterrorism information and is necessary to understand the counterterrorism information or assess its importance.” Primary Order at 13. The FBI, in turn, must handle the information it receives from NSA in accordance with the minimization procedures set forth in The Attorney General’s Guidelines for Domestic Operations. Id. at 4.
The NSA’s activities under the FISC’s Orders are subject, in addition, to an extensive regime of internal reporting, audits, and oversight; regular consultation with the NSA Office of the Inspector General, and the Department of Justice, to assess compliance with the FISC’s Orders; and monthly reports to the FISC including, inter alia, a discussion of NSA’s application of the “reasonable, articulable suspicion” standard and the number of times that query results containing U.S. person information have been shared with anyone outside NSA. Id. at 4-16. As acknowledged in the Complaint, ¶ 31, the FISC must renew Government’s authority to collect telephony metadata under its orders every 90 days. See Primary Order at 17 (setting expiration date of collection authority); Secondary Order at 4 (same).3
C. Plaintiffs’ Allegations4 Plaintiffs are non-profit organizations that engage in civil rights litigation, education, and lobbying. Compl. ¶¶ 6-9, 24. They allege that the Government has engaged in “dragnet
3 FISA also requires the Government to report to Congress regarding the use of its Section 215 authority, including copies of significant FISC orders and the Government’s supporting pleadings. 50 U.S.C. §§ 1862, 1871.
4 For purposes of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the well-pleaded factual allegations of a complaint must be accepted as true. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010). Defendants reserve the right, however, to contest Plaintiffs’ allegations, and/or their ability to prove their allegations without implicating protected state secrets, as may be necessary or appropriate in further proceedings.
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acquisition” of telephony metadata concerning their communications, id. ¶¶ 1-2, 30, although they acknowledge that the collection of the metadata is court-authorized. Id. ¶¶ 2, 22, 23, 31.
Plaintiffs contend that the telephony metadata provide the government with “a comprehensive record” of “sensitive and often privileged” information about their communications with “journalists, current and potential clients, legislators and legislative staff, and members of the public,” concerning “Plaintiffs’ advocacy, representation of clients, and efforts to lobby Congress.” Compl. ¶¶ 3, 24-25, 35. These include communications with potential witnesses and informants, whistleblowers, and lobbyists who consider their associations with Plaintiffs confidential. Id. ¶¶ 26-27. Plaintiffs specifically allege that the telephony metadata maintained by the Government “could readily be used to identify those who contact Plaintiffs for legal assistance or to report human-rights or civil-liberties violations, as well as those whom Plaintiffs contact in connection with their work.” Id. ¶¶ 1, 35. Therefore, the Government’s maintenance of these records, according to Plaintiffs, “is likely to have a chilling effect on whistleblowers and others who would otherwise contact Plaintiffs.” Id. ¶¶ 3, 35. Plaintiffs make no allegations, however, that the Government has reviewed metadata of any of their communications, whether pursuant to queries based on reasonable, articulable suspicion that particular telephone numbers (or other identifiers) are associated with specific foreign terrorist organizations approved for targeting by the FISC, or otherwise.
Plaintiffs contend that this court-sanctioned collection of telephony metadata exceeds the authority conferred by Section 215, and violates the First and Fourth Amendments. Id. ¶¶ 3638. They bring suit under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, predicating jurisdiction on, inter alia, the waiver of sovereign immunity codified in the Administrative Procedure Act, 5 U.S.C. § 702. Id. ¶ 4. Plaintiffs seek a declaration that the telephony metadata collection is unlawful; a permanent injunction against future collection of telephony metadata
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concerning their communications, whether under the Secondary Order “or any successor thereto”; and an order directing the Government “to purge from [its] possession” all such metadata collected to date. Id. at 10 (Prayer for Relief ¶¶ 2-5).
ARGUMENT Under the pleading standards set forth in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), to survive a motion to dismiss a complaint must contain “sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Mere “labels and conclusions,” and “naked assertion[s] devoid of further factual enhancement,” are not sufficient. Rather, considering only the well-pleaded, non-conclusory allegations of a complaint, and “assum[ing] their veracity,” the court must determine whether they “plausibly give rise to an entitlement to relief.” Id. at 678-79 (internal quotations omitted), see id. at 680-81; PBGC ex rel. St. Vincent Catholic Med. Ctr. Ret. Plan v. Morgan Stanley Inv. Mgmt., Inc., 712 F.3d 705, 717 (2d Cir. 2013) (“St. Vincent”). To reach the level of plausibility, the well-pleaded facts “must demonstrate ‘more than a sheer possibility that a defendant has acted unlawfully.’” St. Vincent, 712 F.3d at 717 (quoting Iqbal, 556 U.S. at 678). Facts that “are merely consistent with” a defendant’s liability “stop[ ] short of the line between possibility and plausibility.” Iqbal, 556 U.S. at 678; St. Vincent, 712 F.3d at 717. The Complaint in this case falls well short of that line, and must be dismissed. POINT I: THE COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFFS
HAVE NOT ESTABLISHED THEIR STANDING A. The Requirements of Article III Standing “The judicial power of the United States” is limited by Article III of the Constitution “to the resolution of ‘cases’ and ‘controversies.’” Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982). “No principle is more fundamental to the judiciary’s proper role in our system of government.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (internal quotation marks and citation omitted). A
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demonstration by plaintiffs of their standing to sue “is an essential and unchanging part of the case-or-controversy requirement,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), “serv[ing] to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013) (citations omitted). The “standing inquiry has been especially rigorous when reaching the merits of the dispute would force [a court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Id. at 1147 (citations and quotations omitted). Similarly, as the Supreme Court recently observed in Amnesty Int’l, it has “often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs.” Id.
To establish Article III standing, Plaintiffs must seek relief from an injury that is “‘concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’” Id. Although “imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes – that the injury is certainly impending.” Id. (citations and internal quotation marks omitted); see also id. (“‘threatened injury must be certainly impending to constitute injury in fact,’” and “‘[a]llegations of possible future injury’ are not sufficient” (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990), and citing multiple additional cases)); see also DaimlerChrysler, 547 U.S. at 345. If Plaintiffs cannot carry the threshold jurisdictional burden of adequately pleading their standing to sue, see Defenders of Wildlife, 504 U.S. at 561, then “the [C]ourt cannot proceed” and must dismiss the case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).
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B. Plaintiffs Allege Injuries That Are Speculative and Conjectural, Not Certainly Impending_________________________ _______
The Complaint should be dismissed because Plaintiffs have failed to plausibly allege an injury meeting Article III’s standards. As discussed below, Plaintiffs’ allegations of the consequences they will suffer as a result of the challenged intelligence-gathering activities depend on speculation that the Government has reviewed, or might in future review, call detail records of their communications, and that persons who would otherwise contact Plaintiffs by telephone may be “chilled” from doing so by that conjectural prospect. Such speculation is insufficient for purposes of Article III, and, as a result, Plaintiffs lack standing.
Plaintiffs’ allegations of injury stem from their assertion that for purposes of civil rights litigation, education, and lobbying they engage in “sensitive” and “privileged” communications with clients, witnesses, whistleblowers, and other persons who consider their associations and “even the fact of their discussions” with Plaintiffs to be confidential. Compl. ¶¶ 3, 6-9, 24-27. They allege that metadata records of their calls “could readily be used to identify those who contact Plaintiffs for legal assistance or to report human-rights or civil-liberties violations, as well as those whom Plaintiffs contact in connection with their work.” Id. ¶ 35. On the basis that records of their calls “could readily be used” for this purpose, Plaintiffs allege further that the Government’s acquisition of such records “is likely to have a chilling effect on people who would otherwise contact Plaintiffs.” Id. These allegations are too conjectural to demonstrate that “the threatened injur[ies] [are] certainly impending.” Amnesty Int’l, 133 S. Ct. at 1147.
Plaintiffs’ first alleged harm, the potential use of call detail records to identify persons with whom Plaintiffs speak, cannot support their standing. Government personnel could identify persons with whom Plaintiffs speak by phone, either individually or collectively, only by retrieving and reviewing the metadata records of calls to or from Plaintiffs (and then taking the next step of ascertaining the identities of the subscribers whose numbers are memorialized in the
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records). But under the FISC’s Orders, Government personnel may only review records
responsive to queries initiated using identifiers that are believed, based on reasonable, articulable
suspicion, to be associated with specific foreign terrorist organizations approved for targeting by
the FISC. See supra at 6; Primary Order at 7. The Complaint contains no allegations, much less
well-pleaded, non-conclusory allegations, that the Government has accessed or reviewed
metadata records of Plaintiffs’ calls as a result of queries made under the “reasonable, articulable
suspicion” standard (or otherwise). Thus, it is sheer speculation to suggest that metadata records
of calls to or from Plaintiffs either have been or ever will be retrieved or reviewed through
queries of the database, much less mined by the Government “to learn sensitive and privilege information about [Plaintiffs’] work and clients.” Compl. ¶ 3.5
The Supreme Court’s decision in Amnesty Int’l addressed a similar standing question and
establishes that Plaintiffs’ reliance on speculation concerning the reach of Government
intelligence-gathering activities is insufficient to demonstrate their standing. In Amnesty Int’l,
various humans rights, labor, and media organizations challenged the constitutionality of the
FISA Amendments Act of 2008, which expanded the Government’s authority to intercept the
communications of non-U.S. persons located abroad. 133 S. Ct. at 1144. The organizations
alleged that they interacted and engaged in sensitive communications with persons who were
likely to be considered by the Government as potential terrorists, or persons of interest in
5 In a 2011 FISC opinion recently declassified and publicly released by the Government (concerning the adequacy of the Government’s minimization procedures for Internet communications data collected under authority of section 702 of FISA, 50 U.S.C. § 1881a), the FISC alluded to a 2009 opinion in which it found that, due to “misperceptions by the FISC” and “inaccurate statements made in the government’s submissions,” the “NSA had been routinely running queries of [telephony] metadata [collected under Section 215] using query terms that did not meet the required standard.” October 3, 2011, FISC Memorandum Opinion and Order (Bates, J.) at 16 n.14 (available at http://icontherecord.tumblr.com/tagged/declassified). Any allegation by Plaintiffs, however, that past incidents of non-compliance with the “reasonable, articulable suspicion” standard make it likely that records of their calls have been or will be reviewed, would be equally speculative, and insufficient under Article III.
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terrorism investigations. See id. at 1145-46. They further alleged that they would suffer harms as a result of the Government surveillance program, including a compromised ability to “locate witnesses, cultivate sources, obtain information, and communicate confidential information,” and a need to undertake various costly measures to avoid possible surveillance. Id.
The Supreme Court, however, held that none of these alleged harms was sufficient to confer standing, because it was “speculative whether the Government will imminently target communications to which respondents are parties.” Id. at 1148. Rather, the Court held that the plaintiffs’ harm rested on a “speculative chain of possibilities,” including “that the Government [would] target the communications of non-U.S. persons with whom they communicate,” that the Government would succeed in intercepting those communications, and that the plaintiffs would be parties to the particular communications the Government intercepts. Id. at 1148-50. So, too, here. The idea that the course of unspecified Government counter-terrorism investigations would lead to particular telephone numbers; that these numbers would be reasonably suspected of association with unidentified foreign terrorist organizations; that these numbers would be used to formulate queries of the collected telephony metadata; and that these queries would retrieve metadata records of Plaintiffs’ calls that the Government would in turn review, is just as speculative as the allegations of harm that were rejected as insufficient in Amnesty Int’l.
Equally unavailing as a claim of injury is the asserted possibility that others might refrain from communicating with Plaintiffs because they fear disclosure of their associations with Plaintiffs. Plaintiffs allege that, because the metadata records of their calls “could readily be used to identify” those with whom Plaintiffs communicate, individuals who would otherwise contact Plaintiffs will “likely” be chilled from doing so. Compl. ¶ 35. Plaintiffs’ burden, however, is to allege facts plausibly suggesting that their injury is certainly impending. Iqbal, 556 U.S. at 678; Amnesty Int’l. 133 S. Ct. at 1147. The “naked assertion,” Iqbal, 556 U.S. at
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678, that unnamed individuals who regard their communications with Plaintiffs as “confidential” may be so unnerved by the idea of the Government reviewing telephony metadata that they will refrain from calling Plaintiffs does not suffice. The Complaint is “devoid of further factual enhancement” that elevates this allegation from the field of mere possibility to the required crest of plausibility. Id. That is especially so because the occurrence of the alleged injury “depends on the unfettered choices made by independent actors not before the court[ ] … whose exercise of broad and legitimate discretion the court[ ] cannot presume . . . to predict.” Defenders of Wildlife, 504 U.S. at 562. In this event, it becomes the Plaintiffs’ burden “to adduce facts showing that those choices have been or will be made in such manner” as to produce cognizable harm, id. (emphasis added), which the Complaint does not even endeavor to do. See also Port Washington Teachers’ Ass’n v. Bd. of Educ., 478 F.3d 494, 499 (2d Cir. 2007) (teachers’ union lacked standing to challenge policy on reporting student pregnancies where they failed to show that “students will bring suit against [them] for [making] any such disclosure[s]”).
In addition, even if as yet unnamed third persons refrained from contacting Plaintiffs out of fear that their association with Plaintiffs could be revealed, that would not constitute an injury attributable to the Government’s actions. Rather, such a decision by third parties would instead be the product of subjective and speculative fears on the part of those individuals that the Government might retrieve and review metadata records of their calls with Plaintiffs. As such it would not be “fairly traceable” to the Government’s exercise of authority under Section 215. Amnesty Int’l, 133 S. Ct. at 1152 & n.7, citing Laird v. Tatum, 408 U.S. 1, 10-14 (1972).
For all of the above reasons, the Complaint should be dismissed for lack of standing. POINT II: CONGRESS IMPLIEDLY PRECLUDED JUDICIAL REVIEW OF
PLAINTIFFS’ STATUTORY CLAIM Congress has impliedly precluded judicial review of the type of statutory claim Plaintiffs assert – that is, a claim by telephone subscribers that the provision of telephony metadata to the
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Government, pursuant to a FISC order, violates Section 215. See Compl. ¶ 36. Thus, Plaintiffs cannot rely on the waiver of sovereign immunity codified in the Administrative Procedure Act (APA), 5 U.S.C. § 702; see Compl. ¶ 4, to supply the needed waiver for their statutory claim. The APA’s waiver of sovereign immunity does not apply where, as here, Congress has granted consent to suit in specified circumstances or fora, or by specified parties, under another statute, and thus impliedly foreclosed the relief sought. 5 U.S.C. § 702. Nor does the APA authorize suit where “statutes preclude judicial review,” as Section 215 clearly does. Id. § 701(a)(1). Plaintiffs’ statutory claim must therefore be dismissed.
“It is elementary that the United States, as sovereign, is immune from suit save as it consents to be sued . . . .” United States v. Mitchell, 445 U.S. 535, 538 (1980) (internal quotations omitted); see also FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”). “A waiver of sovereign immunity cannot be implied but must be unequivocally expressed.” Mitchell, 445 U.S. at 538 (internal quotations omitted). Any ambiguity is construed in favor of immunity. FAA v. Cooper, 132 S. Ct. 1441, 1448 (2012). Ambiguity exists if there is a “plausible interpretation” of the statute that would not authorize the relief sought. Id.
As a general matter, section 702 of the APA grants the Government’s consent to suit in actions “seeking relief other than money damages.” It is subject to a number of significant exceptions, however, two of which apply here. First, section 702 itself provides that “[n]othing herein … confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” 5 U.S.C. § 702. Second, mirroring the first exception, the APA provides that its chapter on judicial review, including section 702, does not apply “to the extent that … statutes preclude judicial review.” 5 U.S.C. § 701(a)(1).
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The first exception “prevents plaintiffs from exploiting the APA’s waiver to evade limitations on suit contained in other statutes.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2204-05 (2012). As Congress explained when it enacted the APA’s waiver of immunity, this “important carve-out,” id. at 2204, makes clear that section 702 was “not intended to permit suit in circumstances where statutes forbid or limit the relief sought,” that is, where “Congress has consented to suit and the remedy provided is intended to be the exclusive remedy.” H.R. Rep. No. 94-1656, at 12-13 (1976), 1976 WL 14066, * 12-13. “For example, . . . a statute granting the United States’ consent to suit, i.e., the Tucker Act, ‘impliedly forbids’ relief other than the [damages] remedy provided by the Act.” Id. Thus, “‘[w]hen Congress has dealt in particularity with a claim and [has] intended a specified remedy’—including its exceptions—to be exclusive, that is the end of the matter; the APA does not undo the judgment.” Pottawatomi Indians, 132 S. Ct. at 2205 (quoting Block v. North Dakota ex rel. Bd. of Univ. and Sch. Lands, 461 U.S. 273, 286, n. 22 (1983)).
To much the same effect, section 701(a)(1) of the APA withdraws section 702’s waiver of immunity where “statutes preclude judicial review.” § 701(a)(1) (“This chapter applies, according to the provisions thereof, except to the extent that (1) statutes preclude judicial review”). “Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984). “[W]hen a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded.” Id.; see Pottawatomi Indians, 132 S. Ct. at 2213.
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Here, a provision of the USA PATRIOT Act that permits specified suits against the United States impliedly forbids Plaintiffs’ statutory claim for equitable relief. Pub. L. No. 10756, § 223, 115 Stat. 294 (2001), codified at 18 U.S.C. § 2712. Section 2712, titled “Civil actions against the United States,” authorizes suits against the United States to recover money damages for willful violations of the Wiretap Act, the Stored Communications Act (SCA), and three particular provisions of FISA. 18 U.S.C. § 2712(a). The three specified provisions of FISA are sections 106(a), 305(a), and 405(a), which respectively impose restrictions on the use and disclosure of information obtained from electronic surveillance, physical searches, and pen registers or trap and trace devices authorized under FISA. See 50 U.S.C. §§ 1806(a), 1825(a), 1845(a). Significantly, violations of the parallel “use” provision of Section 215, 50 U.S.C. § 1861(h), which restricts the Government’s use and disclosure of tangible things received in response to a production order, are not made actionable under section 2712.6 Congress further stipulated that an action under § 2712 shall be the exclusive remedy against the United States for claims falling within its purview. Id. § 2712(d). Section 2712 thus deals with claims for misuses of information obtained under FISA in great detail, including the intended remedy, and Plaintiffs cannot rely on section 702 to bring a claim for violation of FISA’s terms that Congress did not provide for under 18 U.S.C. § 2712. Pottawatomi Indians, 132 S. Ct. at 2205.
The same conclusion was reached by another district court in a suit challenging alleged NSA “dragnet” surveillance after the 9/11 attacks. Jewel v. NSA, 2013 WL 3829405 (N.D. Cal. July 23, 2013). The court in Jewel held that § 2712, “by allowing suits against the United States only for damages based on three provisions of [FISA], impliedly bans suits against the United
6 The enactment of section 223 of the USA PATRIOT Act in 2001 preceded enactment of 50 U.S.C. § 1861(h) in 2006. 1 Kris & Wilson § 19:11 at 718. Congress has not since amended § 2712 to include violations of § 1861(h) as a basis for suit. In fact, when Congress amended Section 215 to add subsection (h), it also added the review provision at subsection (f), but made review available only to persons to whom Section 215 orders are directed.
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States that seek injunctive relief under any provision of FISA.” Id. at *12. Accordingly, the plaintiffs there could not rely on section 702 of the APA as a waiver of sovereign immunity for their FISA-based claim for injunctive relief. Id. The same result is required in this case.
Section 215 also reflects an intent by Congress to foreclose the statutory claim asserted here, by this type of plaintiff, in this forum, and thus qualifies as a “statute[] [that] preclude[s] judicial review.” 5 U.S.C. § 701(a)(1). Section 215 carefully delineates who may seek review of a production order and in what court, specifying that “[a] person receiving a production order” may challenge its legality “by filing a petition with [the FISC review] pool” to “modify or set [it] aside.” 50 U.S.C. § 1861(f)(2)(A)(i), (B). Making the preclusive intent of this provision even clearer, Congress punctuated it with the instruction that “[a]ny production … order not explicitly modified or set aside consistent with [subection 1861(f)],” that is, on pool review of a provider petition, “shall remain in effect.” Id. § 1861(f)(2)(D). Thus, Congress clearly limited the right to contest the legality of Section 215 production orders to recipients of such orders who file petitions for review with the FISC. Indeed, when Congress authorized providers to petition the FISC for review of Section 215 orders, it rejected an amendment that would have allowed such review in federal district court. See H. R. Rep. 109-174 at 128-29, 134, 137. 7
Like the statutory scheme under § 2712, Section 215 indicates that Congress meant to exclude a suit such as the instant one, brought by parties that are not recipients of a production order, in federal district court, not the FISC, seeking equitable relief in a challenge to the
7 Further telling is Congress’s decision to not authorize motions to suppress information obtained from a Section 215 order. When the United States or a state intends to use evidence obtained or derived from electronic surveillance, physical searches, or use of pen register or trapand-trace (PR/TT) devices authorized under FISA in judicial or administrative proceedings against a person, FISA permits that person to contest the legality of the evidence through a suppression motion. 50 U.S.C. §§ 1806(e), 1825(f), 1845(e). But tangible things acquired under Section 215 are not the products of electronic surveillance, physical searches, or use of PR/TT devices. See 50 U.S.C. § 1801(f) (defining electronic surveillance), § 1821(5) (physical search), § 1841(2) (PR/TT devices).
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statutory validity of a Section 215 production order. This limitation on judicial review makes sense, given that the tangible things that are the subject of a Section 215 order belong to the recipients of the production order, not to third parties such as plaintiffs here. See United States v. Miller, 425 U.S. 435, 440-41 (1976).8 This “detailed mechanism for judicial consideration of particular issues” under Section 215 “at the behest of particular persons” means that “judicial review of those issues at the behest of other persons” is “impliedly precluded.” Cmty Nutrition Inst., 467 U.S. at 349 (holding that statutory scheme allowing dairy handlers to seek review of milk marketing orders precluded actions by consumers); see also Dew v. United States, 192 F.3d 366, 371-74 (2d Cir. 1999) (statute prohibiting employment discrimination on the basis of military service, which authorized civil enforcement action against state and private employers, impliedly precluded suit for equitable relief under the APA by employees of federal intelligence community agencies); In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp. 2d 114, 128-29 (E.D. Va. 2011) (provision of SCA allowing Twitter subscribers to challenge orders requiring production to Government of “backup information” impliedly prohibited statutory challenge by subscribers to order requiring production of electronic records pertaining to them).
For these reasons, Plaintiffs’ first cause of action, alleging that the Government has acted in excess of its authority under Section 215, should be dismissed. POINT III: THE GOVERNMENT’S BULK COLLECTION OF TELEPHONY
METADATA IS AUTHORIZED UNDER SECTION 215 Even setting aside the jurisdictional deficiencies described above, the Complaint should still be dismissed for failure to state a claim, because it does not “plausibly suggest” that the
8 Nor does a party, in the absence of a claim of privilege, typically have standing to object to a subpoena directed to a non-party witness. Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1975).
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collection of metadata authorized by the FISC either exceeds the bounds of Section 215, or (as discussed in Points IV and V, infra) violates the Constitution. Iqbal, 556 U.S. at 681.
As their first cause of action Plaintiffs assert that bulk collection of telephony metadata as contemplated by the FISC’s Orders exceeds the authority granted by Section 215. Compl. ¶ 36. The Complaint does not set forth the basis for this claim, but, in their July 2, 2013, preconference letter to the Court, Plaintiffs suggest that the production ordered by the FISC is unauthorized because (i) the records in question are not “relevant” to an authorized national security investigation, and (ii) Section 215 does not authorize collection of records “as they are generated.” Both of these contentions lack merit and should be rejected.
A. The Telephony Metadata Collected Under the FISC’s Orders Are “Relevant” to Authorized National Security Investigations
Section 215 authorizes the FISC to order “production of any tangible things” upon the Government’s application showing “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation … to protect against international terrorism.” 50 U.S.C. § 1861(a)(1), (b)(2)(A). As recited in the Secondary Order, at 1, the FBI made such an application for an order directing the production of telephony metadata, and the FISC specifically found, in the Primary Order, at 2, “reasonable grounds to believe” that the telephony metadata sought by the Government “are relevant to authorized investigations … being conducted by the FBI … to protect against international terrorism.” Plaintiffs now ask this Court to second-guess the FISC’s conclusion and declare instead that the records the FISC ordered produced to the Government are not, in fact, relevant to authorized counter-terrorism investigations, on the apparent ground that the vast majority of those records do not themselves document calls made in connection with terrorist plots. See Compl. ¶¶ 2, 30-34. Plaintiffs’ position is contrary to Congress’s understanding of the term “relevant” under Section 215, the statute’s intended purpose, and repeated decisions of the FISC, and should be rejected.
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1. Congress Intended Section 215 To Incorporate a Broad Concept of Relevance, Drawn from the Legal Meaning Applied in Grand Jury, Civil, and Administrative Proceedings, That Also Takes Into Account the Special Characteristics of the Terrorism Investigations to Which It Applies
Even in common usage, “relevant” broadly connotes anything “[b]earing on or connected with,” or “pertinent to,” a specified matter or thing. Oxford English Dictionary (3d ed. 2009) (available at www.OED.com). Relevance, however, has developed an even broader legal meaning in the context of official investigations and civil proceedings, for which purposes documents are considered “relevant” not only where they directly bear on a matter, but also where they reasonably could lead to other information that may bear on the matter.
In civil discovery, for example, the phrase “relevant to the subject matter involved in the pending action” broadly encompasses “any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (emphasis added). An even broader relevance standard applies to grand jury subpoenas, which will be upheld, notwithstanding the incidental production of irrelevant documents, unless “there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.” United States v. R. Enters., Inc., 498 U.S. 292, 301 (1991) (emphasis added); In re Grand Jury Proceedings, 616 F.3d 1186, 1202, 1205 (10th Cir. 2010). Likewise, the statutory authority conferred on administrative agencies to subpoena evidence that is “relevant to [a] charge under investigation” affords them “access to virtually any material that might cast light on the allegations” at issue in an investigation, EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984) (internal quotations omitted), and courts generally defer to an agency’s appraisal of what is relevant to the investigation at hand, see NLRB v. Am. Med. Response, Inc., 438 F.3d 188, 193 (2d Cir. 2006).
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In light of that basic understanding of relevance, courts in each of these contexts have
categorically authorized the production of entire repositories of records, even when any
particular record is unlikely to bear directly on the matter being investigated, where searching a
large volume of information is the only feasible means of locating much smaller amounts of critical information within the data that directly bears on the matter under investigation.9 In the
analogous field of search warrants for data stored on computers, courts also permit Government
agents to copy entire computer hard drives and then later review the entire drive for the specific evidence described in the warrant. See Fed. R. Crim. P. 41(e)(2)(B).10 These practices, in a
variety of settings, demonstrate the broad understanding of the concept of relevance developed in
the context of investigatory information gathering.
Congress incorporated this accepted, broad, and context-dependent legal meaning of the
term “relevant” into Section 215. Ordinarily, Congress is presumed to adopt the common
understanding of the legal terms it employs. See NLRB v. Amax Coal Co., 453 U.S. 322, 329
(1981) (“Where Congress uses terms that have accumulated settled meaning under either equity
or the common law, a court must infer, unless the statute otherwise dictates, that Congress means
9 See, e.g., In re Subpoena Duces Tecum, 228 F.3d 341, 350-51 (4th Cir. 2000) (subpoena for 15,000 patient files); In re Grand Jury Proceedings, 827 F.2d 301, 305 (8th Cir. 1987) (upholding grand jury subpoenas for records of wire money transfers “involving hundreds of innocent people”); FTC. v. Invention Submission Corp., 965 F.2d 1086 (D.C. Cir. 1992); Carrillo Huettel, LLP v. SEC, 2011 WL 601369, at *2 (S.D. Cal. Feb. 11, 2011) (trust account information for all of law firm’s clients held relevant to SEC investigation); Goshawk Dedicated, Ltd. v. Am. Viatical Servs., LLC, 2007 WL 3492762 at *1 (N.D. Ga. Nov. 5, 2007) (compelling production of business’s entire underwriting database); In re Adelphia Commc’ns. Corp., 338 B.R. 546, 549 and 553 (Bankr. S.D.N.Y. 2005) (permitting inspection of “approximately 20,000 large bankers boxes of business records”); Medtronic Sofamor Danek, Inc. v. Michelson, 229 F.R.D. 550, 552 (W.D. Tenn. 2003) (compelling discovery of “approximately 996 network backup tapes … plus an estimated 300 gigabytes of other electronic data).
10 See, e.g., United States v. Hill, 459 F.3d 966, 975 (9th Cir. 2006) (recognizing that “blanket seizure” of the defendant’s entire computer system, followed by subsequent review, may be permissible); United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999).
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to incorporate the established meaning of these terms”).11 In this case, however, both the text
and legislative history confirm that Congress was acutely aware of the accepted legal meaning of
relevance when it enacted Section 215’s relevance requirement.
When Congress codified the relevance requirement under Section 215, see USA
PATRIOT Act Improvement Act of 2005, Pub. L. No. 109-177, § 106(b), 120 Stat. 192 (2006), it
was understood that relevance was the equivalent of the “well established standard” applied to
grand jury subpoenas, administrative subpoenas, and civil discovery requests. See 152 Cong. Rec. S1598, 1606 (Mar. 2, 2006) (statement of Sen. Kyl).12 Indeed, Congress described the
items subject to production under Section 215 as things obtainable by “a subpoena duces tecum
issued by a court … in aid of a grand jury investigation” or “any other order issued by a court …
directing the production of records or tangible things.” 50 U.S.C. § 1861(c)(2)(D). And in
codifying the relevance standard applicable here, Congress provided that the Government need
only show “reasonable grounds to believe” that the records sought are relevant to an authorized
investigation, id § 1861(b)(2)(A), thus incorporating, too, the deferential standard of review
applied to the Government’s relevance determinations when it issues investigatory subpoenas.
See R. Enters., supra at 21, 498 U.S. at 301; Am. Med. Response, 438 F.3d at 193.
11 See also United States v. Shabani, 513 U.S. 10, 14 (1994); McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009) (“When Congress directly incorporates language with an established legal meaning into a statute, we may infer that Congress intended the language to take on its established meaning”); Smith v. Bowersox, 159 F.3d 345, 347 (8th Cir. 1998) (same).
12 See also 152 Cong. Rec. S1379, 1395 (Feb. 16, 2006) (statement of Sen. Kyl) (“We all know the term ‘relevance.’ It is a term that every court uses … The relevance standard is exactly the standard employed for the issuance of discovery orders in civil litigation, grand jury subpoenas in a criminal investigation, and for each and every one of the 335 different administrative subpoenas currently authorized by the United States Code”); 151 Cong. Rec. S13636, 13642 (Dec. 15, 2005) (statement of Sen. Hatch) (the relevance standard incorporated into Section 215 “has been used for years in the issuance of grand jury subpoenas,” and is “strictly in the mainstream of American criminal law”); H.R. Rep. No. 109-174, pt. 1 at 131 (statement of Rep. Lungren) (“the standard proposed here is really the relevance standard under which Federal grand juries … operate”).
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Of course, the case law in the contexts of civil discovery, grand jury subpoenas, and administrative investigations does not involve data acquisition on the scale of the telephony metadata collection authorized by the FISC, because the information gathered in those contexts is sought in aid of focused judicial and administrative proceedings involving identifiable individuals and events. But there are a number of textual and contextual indications that Congress also intended Section 215 to embody a sufficiently flexible standard of relevance to take into account the uniquely important purposes and special characteristics of the national security investigations to which the statute applies.
First, unlike the rules that limit civil discovery to information that is relevant “to the subject matter involved” in a case, Fed. R. Civ. P. 26(b)(1), Section 215 permits the collection of information relevant “to an authorized investigation.” 50 U.S.C. § 1861(b)(2)(A). Business records can therefore be relevant to an investigation not merely if they relate to the subject matter of an inquiry, but also if there is reason to believe they are necessary to the application of investigative techniques that will advance its purposes. The bulk collection of telephony metadata is necessary to enable discovery of otherwise hidden connections between individuals suspected of engaging in terrorist activity and unknown co-conspirators with whom they maintain contact in the United States. The metadata records are therefore relevant to FBI investigations whose object is to thwart the plots in which these individuals are engaged before they come to bitter fruition.13
13 Notably, when Congress codified the relevance standard in Section 215 it specifically rejected proposals to limit its scope so that it would encompass only records pertaining to individuals suspected of terrorist activity. See S. 2369, 109th Cong., 2d Sess., § 3 (Mar. 6, 2006); 151 Cong. Rec. S14275-01 (Dec. 21, 2005) (statement of Sen. Dodd) (“Unfortunately, the conference report … maintains the minimal standard of relevance without a requirement of fact connecting the records sought, or the individual, suspected of terrorist activity”). See also 152 Cong. Rec. S1598-03 (2006) (statement of Sen. Levin); 152 Cong. Rec. H581-02 (Mar. 7, 2006) (statement of Rep. Nadler).
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Second, relevance in the context of national security investigations cannot be evaluated in a vacuum but must be considered in light of their special nature, purpose, and scope. See Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 209 (1946). Counter-terrorism investigations serve important purposes beyond the ambit of routine criminal inquiries, which ordinarily focus retrospectively on specific crimes that have already occurred and the persons known or suspected to have committed them. The key purpose of terrorism investigations, in contrast, is to prevent terrorist attacks before they occur. Hence, national security investigations often have remarkable breadth, spanning long periods of time and multiple geographic regions to identify terrorist groups, their members, intended targets, and means of attack, many of which are often unknown to the intelligence community at the outset. See CIA v. Sims, 471 U.S. 159, 171 (1985) (“foreign intelligence [gathering] consists of securing all possible data pertaining to … the national defense and security of the United States”). National security investigations thus require more far-reaching means of information-gathering to shed light on suspected terrorist organizations, their size and composition, recruitment, geographic reach, relation to foreign powers, financial resources, past acts, goals, and capacity for carrying out their plans.
When Congress codified the relevance standard under Section 215, the critical differences between the breadth and attributes of counter-terrorism investigations and routine criminal investigations were well understood. See H.R. Rep. No. 109-174(1) at 129 (statement of Rep. Lungren) (“[t]his is in the nature of trying to stop terrorists before they act, not in the nature of a regular criminal investigation … and it strikes … precisely at when a 215 order is most useful”); see also 152 Cong. Rec. S1325, 1330 (Feb. 15, 2006) (statement of Sen. Feingold). The purpose underlying the USA PATRIOT Act, and Section 215 in particular, was to provide the intelligence community the enhanced investigatory tools needed to bring terrorist activities to light before they culminate in a loss of life and property. See H.R. Rep. No. 109-
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174, pt. 2 at 4 (“many of the core enhanced authorities of the [Patriot Act] are fundamentally
intelligence authorities intended to gather information to counter threats to national security from
terrorists”); S. Rep. No. 109-85 at 40 (noting “critical” nature and “broad reach” of authority
conferred by Section 215). To achieve this core objective, the Government must have authority
to collect records that can produce information revealing previously unknown operatives and
activities, and thus detect and prevent terrorist attacks before they are launched. Limiting the
reach of Section 215 to specific records bearing directly on known terrorist threats and operatives
would inhibit the use of this authority for its intended purposes – detecting unknown terrorist
threats – and frustrate the will of Congress.14
2. Congress Has Legislatively Ratified the Construction of Section 215 as Allowing for the Bulk Collection of Telephony Metadata Records
Congress’s adoption of this expansive understanding of relevance under Section 215 is
further confirmed by the fact that Congress had already been notified of the Government’s bulk
14 When it codified Section 215’s relevance requirement, Congress simultaneously built protections into the statutory scheme not found in the other legal contexts. Section 215’s requirement for prior judicial authorization – not required for grand jury subpoenas, administrative subpoenas, or civil discovery – serves as a check on the broad investigatory powers granted to the Government in counter-terrorism investigations. For example, the Government’s authority to collect telephony metadata must be renewed by the FISC every 90 days, and, pursuant to statutory minimization requirements, the FISC’s orders require reasonable, articulable suspicion that identifiers (e.g., telephone numbers) used to query the data are associated with specific foreign terrorist organizations that have previously been identified to and approved for targeting by the Court. See Primary Order at 7. Moreover, once information is produced under a Section 215 order, the Government can retain and disseminate it only in accordance with minimization procedures reported to and approved by the Court. See 50 U.S.C. § 1861(c)(1), (g). The entire process is subject to active congressional oversight. See, e.g., id. § 1862. These multiple and interlocking layers of oversight and regulation further reflect a recognition on Congress’s part of the broad authority conferred by Section 215 to gather information “relevant” to a counter-terrorism investigation, and the need for correspondingly robust safeguards to promote responsible use of that authority.
As recent disclosures by the Government demonstrate, see n. 5, supra, this system of interactive administrative, judicial, and legislative safeguards has succeeded in identifying and correcting issues of unauthorized access to telephony metadata when they have arisen.
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collection of telephony metadata when it twice re-authorized Section 215, without change, in
2010 and 2011. Pursuant to – indeed, well beyond – FISA’s Congressional notification
requirements, see 50 U.S.C. 1871(a), the Executive Branch worked to ensure that all Members of
Congress had access to information about this program and the legal authority for it. In
December 2009, a classified briefing paper, explaining that the Government and the FISC had
interpreted Section 215 to authorize the bulk collection of telephony metadata, was provided to
the House and Senate Intelligence Committees and made available for review, as well, by all
Members of Congress, “to inform the legislative debate about reauthorization of Section 215.” 15
Additionally, the classified use of this authority has been briefed numerous times over the years
to the Senate and House Intelligence and Judiciary Committees, including in connection with
reauthorization efforts, as several Members of Congress have acknowledged.16
15 See Letter from Ronald Weich to the Hon. Silvestre Reyes (Dec. 14, 2009) (Exh. 4, hereto); Report on the [NSA’s] Bulk collection Programs for USA PATRIOT Act Reauthorization (Exh. 5, hereto). Both Intelligence Committees made this document available to all Members of Congress prior to the February 2010 reauthorization of Section 215. See Letter from Sens. Feinstein and Bond to Colleagues (Feb. 23, 2010) (Exh. 6, hereto); Letter from Rep. Reyes to Colleagues (Feb. 24, 2010) (Exh. 7, hereto); see also 156 Cong. Rec. H838 (daily ed. Feb. 25, 2010) (statement of Rep. Hastings); 156 Cong. Rec. S2109 (daily ed. Mar. 25, 2010) (statement of Sen. Wyden).
An updated version of the briefing paper, see Exhibit 8, hereto, was provided to the Senate and House Intelligence Committees again in February 2011 in connection with the reauthorization that occurred later that year. See Letter from Ronald Weich to Hon.Diane Feinstein and the Hon. Saxby Chambliss (Feb. 2, 2011) (Exh. 9, hereto); Letter from Ronald Weich to the Hon. Mike Rogers and the Hon. C.A. Dutch Ruppersberger (Feb. 2, 2011) (Exh. 10, hereto). The Senate Intelligence Committee made this updated paper available to all Senators later that month. See Letter from Sens. Feinstein and Chambliss to Colleagues (Feb. 8, 2011).
The Court may judicially notice these records and correspondence concerning the legislative history of Section 215’s reenactment. Oneida Indian Nation of N.Y. v. State of New York, 691 F.2d 1070, 1086 (2d Cir. 1982).
16 See Press Release of Sen. Select Comm. on Intelligence (June 6, 2013) (Exh. 11, hereto) (“The … use of this authority has been briefed extensively to the Senate and House Intelligence and Judiciary Committees, and detailed information has been made available to all members of Congress prior to each reauthorization of this law.”); How Disclosed NSA Programs
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After receiving these classified briefings, Congress twice reauthorized Section 215, in
2010 and again in 2011.17 “‘Congress is presumed to be aware of an administrative or judicial
interpretation of a statute and to adopt that interpretation when it re-enacts a statute without
change.’” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-40 (2009) (quoting Lorillard v.
Pons, 434 U.S. 575, 580 (1978)). That presumption is ironclad in this instance, where Congress
had actual and repeated notice of the Executive Branch’s administrative construction of Section
215 over a period of years.18 Imposing a limiting construction now on Section 215’s relevance
standard that would prohibit bulk collection of telephony metadata would be contrary to the
express understanding of the statute that Congress ratified on two separate occasions.
3. Telephony Metadata Are “Relevant” Within the Meaning of Section 215 Because Bulk Collection of the Data Enhances the Government’s Ability To Detect Terrorist Operatives and Prevent Terrorist Attacks
Acknowledging the intended scope of Section 215 is not to say that the authority it
confers is boundless. The Government’s ability to analyze telephony metadata to discover
connections between individuals fundamentally distinguishes such data from other information,
Protect Americans, and Why Disclosure Aids Our Adversaries: Hearing Before the House Perm. Select Comm. on Intelligence 2, 35, 58, 113th Cong., 1st Sess. (2013) (statements of Reps. Rogers, Langevin, and Pompeo) (Exh. 12, hereto).
17 USA PATRIOT Act – Extension of Sunsets, Pub. L. No. 111-141, § 1(a), 124 Stat. 37; PATRIOT Sunsets Extension Act of 2011, Pub. L. No. 112-14, § 2(a), 125 Stat. 216.
18 See Atkins v. Parker, 472 U.S. 115, 140 (1985) (“Congress was thus well aware of, and legislated on the basis of, the contemporaneous administrative practice . . . and must be presumed to have intended to maintain that practice absent some clear indication to the contrary”); Shell Oil, 466 U.S. at 69; Haig v. Agee, 453 U.S. 280, 297-98 (1981).
Moreover, in both 2009 and 2011, when the Senate Judiciary Committee was considering possible amendments to Section 215, it made clear that it had no intention of affecting the telephony metadata collection program. The Committee reports accompanying the USA PATRIOT Act Sunset Extension Acts of 2009 and 2011 explained that proposed changes to Section 215 were “not intended to affect or restrict any activities approved by the FISA court under existing statutory authorities.” S. Rep. No. 111-92, at 7 (2009); S. Rep. No. 112-13, at 10 (2011). Ultimately, Section 215 was extended to June 1, 2015 without change. See Patriot Sunsets Extension Act of 2011, Pub. L. No. 112-14, 125 Stat. 216 (2011).
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such as library or medical records. For example, while an identified suspect’s medical history might be relevant to an investigation of that individual, searching an aggregate database of medical records—which do not interconnect with one another—would not typically enable the Government to identify otherwise unknown relationships among individuals and organizations and thereby ascertain information about terrorist networks. Ordinarily, therefore, bulk collection of such records would not meet the “relevance” standard. See Okla. Press, 327 U.S. at 209 (explaining that “relevancy and adequacy or excess in the breadth of [a] subpoena are matters variable in relation to the nature, purposes and scope of the inquiry”).
But in light of Congress’s broad understanding of “relevance” under Section 215 as it necessarily applies to national security investigations, and Congress’s repeated, informed decisions to reauthorize the statute without change, the telephony metadata collection clearly meets the Section 215 “relevance” standard, as the judges of the FISC have repeatedly found. Collecting these data is necessary to the effective use of NSA analytical tools, which, when applied to the data, produce information that can help identify clandestine terrorist operatives or networks within the United States. That process is not feasible without bulk collection of the data, because NSA analysts cannot know in advance which of the many phone numbers obtained might have connections to known or suspected terrorists. And unless the telephony metadata are aggregated and retained for appropriate periods, it may not be feasible to identify chains of communications that cross different time periods and telecommunications networks. Thus, the telephony metadata records are “relevant” to authorized investigations of international terrorism.
B. Nothing in the Text of Section 215 Prohibits the Collection of Records “as They Are Generated”
Plaintiffs’ next contention, that Section 215 authorizes only the collection of business records “already in existence,” and not the production of records “as they are generated,” July 3, 2013, Letter at 3, is erroneous as a matter of law.
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Section 215 authorizes the FISC to direct the production of “any tangible things,” “documents,” or “records.” 50 U.S.C. § 1861(a)(1)(emphasis added). Nothing in the text of the statute suggests that FISC orders may apply only to records previously created. That requested information is not created until after a FISC order has been rendered, and is produced on an ongoing basis, does not affect its basic character as “documents,” “records,” or other “tangible things” subject to production under the statute. Nor do the FISC’s orders require the creation or preservation of documents that would otherwise not exist, or compel telecommunications service providers to retain information they would otherwise discard. For example, telephony metadata such as the information at issue here is routinely maintained by providers for at least 18 months pursuant to Federal Communications Commission regulations. See 47 C.F.R. § 42.6.
Prospective production of business records has been deemed appropriate in analogous contexts. For example, under the SCA the Government may obtain a court order requiring a provider of cell-phone service to produce non-content “record[s] or other information pertaining to a subscriber … or customer” on a specific showing of “reasonable grounds to believe that … the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(c)(1), (d). Courts including this one have held that the Government may seek prospective disclosure of records under the SCA because “the prospective … information sought by the Government … becomes a ‘historical record’ as soon as it is recorded by the provider,” and the statute “in no way limits the ongoing disclosure of records to the Government as soon as they are created.” In re Application of the United States, 632 F. Supp. 2d 202, 207 n.8 (E.D.N.Y. 2008); In re Application of the United States, 460 F. Supp. 2d 448, 459 (S.D.N.Y. 2006) (the SCA “contains no explicit limitation on the disclosure of prospective data”). Like the SCA, there is nothing in the text or legislative history of FISA indicating that Congress meant to prohibit the contemporaneous production to the Government
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of business records that are generated on a daily basis.19 Any contention otherwise fails as a matter of law. POINT IV: THE GOVERNMENT’S COLLECTION OF TELEPHONY METADATA
DOES NOT VIOLATE PLAINTIFFS’ FOURTH AMENDMENT RIGHTS Plaintiffs also fail to state a claim that the collection of telephony metadata pursuant to the FISC’s Orders violates their Fourth Amendment rights. See Compl. ¶ 37. The Supreme Court held in Smith v. Maryland, 442 U.S. 735 (1979), that there is no reasonable expectation of privacy in this exact kind of information – dialed telephone numbers – and therefore the Fourth Amendment is not implicated here. Moreover, even if the Fourth Amendment were applicable, the production of metadata ordered by the FISC would satisfy the reasonableness standard applicable to suspicionless searches that serve special government needs, in which the intrusion on privacy interests is balanced against the Government’s interest in the search. Here, the collection of metadata is minimally intrusive despite its breadth, as the data include no content, and the FISC’s Orders impose restrictions on both access to the data and their dissemination. On the other hand, the metadata collection promotes a governmental interest of the utmost importance – thwarting terrorist attacks. A. Plaintiffs Have No Fourth Amendment Privacy Interest in Telephony Metadata The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” As the Supreme Court remarked just last year, “for most of our history the
19 This type of prospective order also provides efficient administration for all parties involved—the Court, the Government, and the provider. There is little doubt that the Government could seek a new order on a daily basis for the records created within the last 24 hours, but doing so would unnecessarily burden the Court, the Government, and providers alike. Prospective orders merely ensure that the records can be sought in a reasonable manner for a reasonable period of time while avoiding unreasonable and burdensome paperwork.
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Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.” United States v. Jones, 132 S. Ct. 945, 949-50 (2012). In addition to the core concern over searches and seizures within these enumerated areas, it is now understood that a Fourth Amendment “search” takes place when the government’s investigative activities “violate a person’s ‘reasonable expectation of privacy.’” Id. (quoting Katz v. United States, 389 U.S. 347, 360 (1967)).
The Government’s collection of telephony metadata under the FISC’s Orders does not involve a “search” of individual telephone subscribers or their property. The Orders are directed to telecommunications service providers, not to subscribers, and direct the production of what are indisputably the providers’ own business records. Nor do telephone subscribers have a reasonable expectation of privacy in telephony metadata. In Smith v. Maryland, the Supreme Court held that the government’s recordation of numbers dialed from an individual’s home telephone, through a pen register installed at the telephone company’s central offices, did not constitute a search of that individual under the Fourth Amendment, because persons making telephone calls, even from their own homes, lack a reasonable expectation of privacy in the numbers they call. 442 U.S. at 741-46. In contrast to the contents of telephone calls, the Court held that there is no reasonable expectation of privacy in the telephone numbers dialed, because telephone users “typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes,” such as billing and fraud detection. Id. at 743.
Furthermore, the Court reasoned, even if a subscriber harbored a subjective expectation that the phone numbers he dialed would remain private, such an expectation of privacy would not be reasonable, because “a person has no legitimate expectation of privacy in information he
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voluntarily turns over to third parties.” Id. at 743-44. The Court explained that someone who uses a phone has “voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business,” and therefore has “assumed the risk that the company would reveal to police the numbers he dialed.” Id. at 744. Courts have followed Smith to find no reasonable expectation of privacy in email “to/from” and Internet protocol (“IP”) addressing information, United States v. Forrester, 512 F.3d 500, 510-11 (9th Cir. 2008); In re Application of the United States, 830 F. Supp. 2d at 131-38, in text message addressing information, Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 905 (9th Cir. 2008), rev’d on other grounds, 130 S. Ct. 2619 (2010), and in subscriber information, such as subscribers’ names, addresses, birthdates, and passwords, communicated to system operations and Internet service providers, Guest v. Leis, 255 F.3d 325, 335-36 (6th Cir. 2001); United States v. Kennedy, 81 F. Supp. 2d 1103, 1110 (D. Kan. 2000).
Smith is fatal to Plaintiffs’ claim that the collection of metadata records of their communications violates the Fourth Amendment. So far as metadata include such information as the times and duration of their calls and the numbers of the parties with whom they spoke, that is information that telephone subscribers voluntarily turned over to their providers. The remaining data, such as trunk identifiers, is information generated by the phone companies themselves. See Primary Order at 3 n.1. Call-detail records memorializing this information belong to the phone companies, as the parties providing the equipment and services required to make those calls possible. See United States v. Miller, 425 U.S. at 440-41 (rejecting a bank depositor’s Fourth Amendment challenge to a subpoena of bank records because, inasmuch as the bank was a party to the transactions, the records belonged to the bank). Thus, under Smith, there can be no reasonable expectation of privacy in this information, even if – as has not been alleged here – there were an understanding that the third party (i.e., the telephone company) would treat the
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information as confidential. SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 743 (1984); Miller, 425 U.S. at 443 (“the Fourth Amendment does not prohibit the obtaining of information revealed to a third party … even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”).
Plaintiffs’ July 2, 2013, pre-conference letter cites Jones for the proposition that metadata collection “over long periods” constitutes a Fourth Amendment search, but Jones is inapplicable here. Jones held that “the Government’s installation of a GPS [tracking] device on a [targeted individual’s] vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’” 132 S. Ct. at 949. The Court reached that conclusion on the basis of considerations that are entirely absent here – namely, attachment of a tracking device to an individual’s vehicle to collect track his whereabouts, thus effecting a physical intrusion on that person’s “effects,” one of the spheres that the Fourth Amendment explicitly enumerates as protected. Id. (“It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information”). The collection of telephony metadata, unlike affixing a GPS device to a vehicle, does not involve any trespass or other intrusion on Plaintiffs’ property, or tracking of locations from which telephone calls are made.
Moreover, contrary to Plaintiffs’ contentions, the majority in Jones expressly disclaimed reliance on the duration of the monitoring (a factor on which the court below had relied, see United States v. Maynard, 615 F.3d 544, 558 (D.C. Cir. 2010), aff’d on other grounds sub nom. United States v. Jones, 132 S. Ct. 945 (2012)), as a basis for concluding that a search had occurred. 132 S. Ct. at 954; see also United States v. Anderson-Bagshaw, 2012 WL 774964, at *2 (N.D. Ohio. Mar. 8, 2012) (“The [Jones] majority limited its analysis to the trespassory nature of the GPS installation, refusing to establish some point at which uninterrupted surveillance might become constitutionally problematic.”).
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Nor does the scope of the metadata collection under the FISC’s Orders alter the Fourth Amendment analysis. Fourth Amendment rights “are personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched.” Steagald v. United States, 451 U.S. 204, 219 (1981); accord, e.g., Minnesota v. Carter, 525 U.S. 83, 88 (1998) (a person “claim[ing] the protection of the Fourth Amendment … must demonstrate that he personally has an expectation of privacy in the place searched”); Rakas v. Illinois, 439 U.S. 128, 133-34 (1978) (Fourth Amendment rights are personal rights which may not be vicariously asserted). No Fourth Amendment-protected interest of Plaintiffs is implicated, therefore, by virtue of the fact that the metadata records of many other individuals’ calls are collected as well as their own. See In re Grand Jury Proceedings, 827 F.2d 301, 305 (8th Cir. 1987) (rejecting argument that a subpoena was unreasonable under the Fourth Amendment because it “may make available to the grand jury [money transfer] records involving hundreds of innocent people”); United States v. Rigmaiden, 2013 WL 1932800, at * 13 (D. Ariz. May 8, 2013) (Government did not violate defendant’s Fourth Amendment rights by acquiring a high volume (1.8 million) of IP addresses).
B. The Government’s Acquisition of Metadata Is Reasonable Even if collecting telephony metadata involved a Fourth Amendment “search” (it does not), the Fourth Amendment bars only “unreasonable” searches and seizures, whereas the collection of metadata at issue here is reasonable under the standard the Supreme Court applies to assess suspicionless searches that serve special government needs. That standard requires a court to balance “the promotion of legitimate governmental interests against the degree to which [the search] intrudes upon an individual’s privacy.” Maryland v. King, 133 S. Ct. 1958, 1970 (2013) (internal citation and quotation marks omitted); see also Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53 (1995). That balance overwhelmingly favors the Government here.
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First, if, contrary to Smith, Plaintiffs could be said to have any Fourth Amendment privacy interest that is implicated by collection of non-content telephony metadata, that interest would be minimal. Moreover, the intrusion on that interest would be mitigated still further by the statutorily mandated restrictions on access to and dissemination of the metadata that are written into the FISC’s Primary Order, at 4-14. See King, 133 S. Ct. at 1979 (safeguards limiting DNA analysis to identification information alone reduced any intrusion into privacy); Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 833 (2002) (restrictions on access to drug testing results lessened intrusion on privacy); Vernonia Sch. Dist., 515 U.S. at 658 (intrusion of urine-testing on student athletes’ privacy was significantly reduced by the fact that they were tested only for illegal drugs and not for any medical condition).
On the other side of the balance, the collection and analysis of telephony metadata promotes overriding public interests. The Government’s interest in identifying and tracking terrorist operatives for the purpose of preventing terrorist attacks is a national security concern of overwhelming importance. See Haig, 453 U.S. at 307 (“no governmental interest is more compelling than the security of the Nation.”) (internal quotation marks omitted); In re Directives, 551 F.3d 1004, 1012 (FISC-R 2008) (“the relevant governmental interest – the interest in national security – is of the highest order of magnitude.”); United States v. Smith, 426 F.3d 567, 573 (2d Cir. 2005). Bulk collection of telephony metadata is a “reasonably effective means” of promoting the Government’s national security objectives, Earls, 536 U.S. at 837, inasmuch as accumulating metadata enhances the Government’s ability to uncover and monitor unknown terrorist operatives who could otherwise elude detection.20 Given that the Government’s
20 The Government need not show that it is using the least intrusive means available to accomplish its goal, id.; United States v. Martinez-Fuerte, 428 U.S. 543, 556 n. 12 (1976), and a low percentage of positive outcomes among the total number of searches or seizures does not render a program ineffective. See Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 454 (1990)
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collection of metadata serves exceedingly important public interests, with minimal, if any, intrusion on the privacy of telephone subscribers, it would be constitutional even if the Fourth Amendment’s reasonableness standard applied.
For these reasons, the Plaintiffs’ Fourth Amendment claim should be dismissed. POINT V: PLAINTIFFS HAVE NOT PLAUSIBLY ALLEGED THAT THE
GOVERNMENT’S COLLECTION OF TELEPHONY METADATA VIOLATES THE FIRST AMENDMENT Plaintiffs’ final claim, that FISC-authorized collection of telephony metadata violates the First Amendment, Compl. ¶ 38, perishes in the wake of their failed Fourth Amendment claim. The law is clear that governmental investigations conducted in observance of Fourth Amendment requirements, without purpose to deter or penalize protected expression or association, do not violate the First Amendment. Plaintiffs do not allege that the Government’s collection of telephony metadata is intended for any purpose other than to identify terrorist operatives, and prevent terrorist attacks. Accordingly, their First Amendment claim should be dismissed. A. Plaintiffs’ Failure to Allege an Actionable Fourth Amendment
Claim Is Also Fatal to Their First Amendment Claim Plaintiffs allege the same injury in support of their First Amendment claim as their Fourth Amendment claim: that telephony metadata collected under the FISC’s Orders gives the Government the wherewithal to piece together “a comprehensive record” of “sensitive” information about Plaintiffs and their associations that is “likely to have a chilling effect on people who would otherwise contact Plaintiffs” for purposes related to Plaintiffs’ organizational mission. Compl. ¶¶ 1, 3, 35. Thus, Plaintiffs’ putative First Amendment claim is at best
(detention of 126 vehicles entering a highway sobriety checkpoint resulted in arrest of two drunken drivers); Martinez-Fuerte, 428 U.S. at 554 (out of 146,000 vehicles passing through border checkpoint, 171 were found to contain deportable aliens). Government officials are given a degree of latitude and deference in choosing among reasonable alternatives in structuring a program involving suspicionless search or seizure. Sitz, 496 U.S. at 453-54.
37

Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 49 of 52
derivative of their Fourth Amendment claim. See, e.g., ACLU v. NSA, 493 F.3d 644, 657 (6th Cir. 2007) (opinion of Batchelder, J.) (observing that plaintiffs who challenged alleged warrantless wiretapping by NSA on various constitutional grounds “have only one claim, namely, breach of privacy, based on a purported violation of the Fourth Amendment or FISA … On a straightforward reading, this claim does not implicate the First Amendment.”).
The Supreme Court and every court of appeals to consider the issue have concluded that when governmental investigative activities have an impact on the exercise of First Amendment freedoms, those interests are safeguarded by adherence to Fourth Amendment standards. See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978); United States v. Mayer, 503 F.3d 740, 747-48 (9th Cir. 2007).21 Accordingly, “surveillance consistent with Fourth Amendment protections . . . does not violate First Amendment rights, even though it may be directed at communicative or associative activities.” Gordon v. Warren Consol. Bd. of Educ., 706 F.2d 778, 781 n.3 (6th Cir. 1983) (collecting cases).22 Inasmuch as Plaintiffs have failed to state a claim under the Fourth Amendment, this precedent alone requires dismissal of Plaintiffs’ First Amendment claim, too. Reporters Comm., 593 F.2d at 1059; see also Mayer, 503 F.3d 750 (similar); United States v. Gering, 716 F.2d 615, 620 (9th Cir. 1983) (rejecting surveilled party’s argument that First Amendment afforded him an expectation of privacy where the Fourth Amendment would not); ACLU v. NSA, 493 F.3d at 657 (similar).
21 See also Redd v. City of Enter., 140 F.3d 1378, 1383 (11th Cir. 1998); Reporters Comm. for Freedom of the Press v. AT&T, 593 F.2d 1030, 1055-59 (D.C. Cir. 1978); Jabara v. Kelley, 476 F. Supp. 561, 572 (E.D. Mich. 1979) (the First and Fourth Amendments “provide coextensive zones of privacy in the context of a good faith criminal investigation,” including warrantless electronic surveillance), vacated on other grounds, 691 F.2d 272 (6th Cir. 1982).
22 See Mayer, 503 F.3d at 750 (same); ACLU Found. of S. Cal. v. Barr, 952 F.2d 457, 471 (D.C. Cir. 1991) (same in context of FISA surveillance). See also United States v. Ramsey, 431 U.S. 606, 623-24 (1977) (where mail is subject to inspection by customs officers only when they have “reasonable cause to suspect” it contains something other than correspondence, and the correspondence may not be read absent a warrant, the First Amendment is not violated).
38

Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 50 of 52
B. Plaintiffs Make No Allegations That the Government’s Collection of Telephony Metadata Is Intended to Curtail Protected Expressive or Associational Activity_________
Plaintiffs’ First Amendment claim is also subject to dismissal because it is based solely on the alleged incidental effects of good-faith investigatory conduct. “Not every Government action that affects, has an impact on, or indeed inhibits First Amendment activity constitutes the kind of ‘abridgement’ condemned by the First Amendment.” Reporters Comm., 593 F.2d at 1052; see also City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 803-04 (1984). Courts have long recognized the need, even when summoned to action in the name of constitutionally protected rights, to accommodate the Government’s competing interests where prevention of crime, or, even more imperatively, potential threats to national security are concerned. See, e.g., Socialist Workers Party v. Attorney General, 510 F.2d 253, 256 (2d Cir. 1974) (“The FBI has a right, indeed a duty, to keep itself informed with respect to the possible commission of crimes; it is not obliged to wear blinders until it may be too late for prevention.”).
Accordingly, courts distinguish for purposes of First Amendment analysis between government investigations that may have the incidental effect of deterring First Amendment activity, and concrete government action of a regulatory, proscriptive, compulsory, or intrusive nature that is specifically directed against individuals or organizations based on their expressive or associational activities. See, e.g., Zurcher, 436 U.S. at 564; Laird, 408 U.S. at 11; Reporters Comm., 593 F.2d at 1051-55. Otherwise lawful investigative activities conducted in good faith—that is, “not for the purpose of abridging first amendment freedoms,” United States v. Aguilar, 883 F.2d 662, 705 (9th Cir. 1989)—do not violate the First Amendment. See Reporters Comm., 593 F.2d at 1051 (concluding that First Amendment protects activities “subject to the general and incidental burdens that arise from good faith enforcement of otherwise valid criminal and civil laws that are not themselves solely directed” at First Amendment conduct).
39

Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 51 of 52
Here, Plaintiffs advance no claim that the Government’s collection and analysis of telephony metadata has any objective other than furthering the compelling national interest in identifying and tracking terrorist operatives and ultimately thwarting terrorist attacks. The Complaint certainly contains no allegations, well-pled or otherwise, from which it could plausibly be concluded that the Government’s collection of non-content telephony metadata is aimed at curtailing any First Amendment expressive or associational activities. To the contrary, the Complaint’s allegations regarding the authorized breadth of the collection, Compl. ¶¶ 30-34, highlight the fact that it is undertaken without targeting Plaintiffs or any other persons, and without reference to anyone’s conduct protected by the First Amendment. Plaintiffs have thus failed to state a First Amendment claim that plausibly gives rise to an entitlement to relief. Iqbal, 556 U.S. at 678-79; see Reporters Comm., 593 F.2d at 1052 (“[T]he Government’s good faith inspection of [telephone] toll call records does not infringe on plaintiffs’ First Amendment rights, because that Amendment guarantees no freedom from such investigation.”).
CONCLUSION For the reasons stated above, the Court should dismiss the complaint.
40

Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 52 of 52

Dated: New York, New York August 26, 2013
STUART F. DELERY Assistant Attorney General
JOSEPH H. HUNT Director
ANTHONY J. COPPOLINO Deputy Director
By: /s/ James Gilligan JAMES J. GILLIGAN Special Litigation Counsel
MARCIA BERMAN Senior Trial Counsel
BRYAN DEARINGER Trial Attorney
Civil Division, Federal Programs Branch U.S. Department of Justice 20 Massachusetts Avenue, N.W. Washington, DC 20001 Tel.: (202) 514-3358

PREET BHARARA United States Attorney for the Southern District of New York Attorney for Defendants
By: /s/ David S. Jones DAVID S. JONES TARA M. La MORTE JOHN D. CLOPPER CHRISTOPHER HARWOOD Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 Tel. (212) 6372739/2746/2716/2728 Fax (212) 637-2730 david.jones6@usdoj.gov tara.lamorte2@usdoj.gov john.clopper@usdoj.gov christopher.harwood@usdoj.gov

41

Case 1:13-cv-03994-WHP Document 33-1 Filed 08/26/13 Page 1 of 5
Exhibit 1

Case 1:13-cv-03994-WHP Document 33-1 Filed 08/26/13 Page 2 of 5
1U1J ShLRfcl//&l//WOFORN
UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT
WASHINGTON, D.C

INRE APPLICATION OF THE

FEDERAL BUREAU OF INVESTIGATION
FOR AN ORDER REQUIRING THE

Docket Number: BR

PRODUCTION OF TANGIBLE THINGS

FROM VERIZON BUSINESS NETWORK SERVICES, INC. ON BEHALF OF MCI COMMUNICATION

13-8 0

SERVICES, INC. D/B/A VERIZON

BUSINESS SERVICES.

SECONDARY ORDER
ThisCourt having found that the Application of the Federal Bureau of
Investigation (FBI) for anOrder requiring the production of tangible things from
Verizon Business Network Services, Inc. on behalf of MCI Communication Services
Inc., d/b/a Verizon Business Services (individually and collectively "Verizon") satisfies the requirementsof 50U.S.C. § 1861,
ITIS HEREBY ORDERED that, the Custodian of Recordsshall produce to the
National Security Agency (NSA) upon service of this Order, and continue production

Derived from: Declassify on:

TOP SFCRHT//SI//MOFOT1N
Pleadings in theabove-captioned docket 12April 2038

Declassified and Approved for Release by DNI
in 07-11-2013 pursuant to F 0.13526

Case 1:13-cv-03994-WHP Document 33-1 Filed 08/26/13 Page 3 of 5

Case 1:13-cv-03994-WHP Document 33-1 Filed 08/26/13 Page 4 of 5

Case 1:13-cv-03994-WHP Document 33-1 Filed 08/26/13 Page 5 of 5

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 1 of 18
Exhibit 2

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 2 of 18
TOP SECRET//Sl//NOFORN UNITED STATES
FOREIGN INTELLIGENCE SURVEILLANCE COURT . WASHINGTON, D. C.
IN REAPPLICATION OF THE FEDERAL BUREAU OF INVESTIGATION FOR AN ORDER REQUIRING THE PRODUCTION OF TANGIBLE THINGS FROM-
Docket Number: BR
13- 8 0
PRIMARY ORDER A verified application having been made by the Director of the Federal Bureau of . Investigation (FBI) for an order pursuant to the Foreign Intelligence Surveillance Act of 1978 (the Act), Title 50, United States Code (U.S.C.), § 1861, as amended, requiring the
TOP SECRET//61//N0¥0RN Derived from: Declassify on:

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 3 of 18

TOP SECRETHSIHNOFORN production to the National Security Agency (NSA) of the tangible things described

below, and full consideration having been given to the matters set forth therein, the

Court finds as follows:

1. There are reasonable grounds to believe that the tangible things sought are

relevant to authorized investigations (other than threat assessments) being conducted

by the FBI under guidelines approved by the Attorney General under Executive Order

12333 to protect against international terrorism, which investigations are not being

conducted solely upon the basis of activities protected by the First Amendment to the

Constitution of the United States. [50 U.S.C. § 1861(c)(l)]

2. The tangible things sought could be obtained with a subpoena duces tecum

issued by a court of the United States in aid of a grand jury investigation or with any

other order issued by a court of the United States directing the production of records or

.j

tangible things. [50 U.S.C. § 1861(c)(2)(D)]

3. The application includes an enumeration of the minimization procedures the

government proposes to follow with regard to the tangible things sought. Such

procedures are similar to the minimization procedmes approved and adopted as

binding by the order of this Court in Docket Number- and its predecessors. [50

U.S.C. § 1861(c)(l)]

TO:P
2

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 4 of 18

'fOP 8ECRETHS!h'NOFORN Accordingly, the Court finds that the application of the United States to obtain

the tangible things, as described below, satisfies the requirements of the Act and,

therefore, .

IT IS HEREBY ORDERED, pursuant to the authority conferred on this Court by the Act, that the application is GRANTED, and it is

FURTHER ORDERED, as follows:

(1)A. The Custodians of Records of

shall produce to NSA

upon service of the appropriate secondary order, and continue production on an

ongoing daily basis thereafter for the duration of this order, unless otherwise ordered by the Court, an electronic copy of the following tangible things: all call detail records

or "telephony metadata"1 created by

B. The Custodian of Records of

shall produce to NSA upon service of the
appropriate secondary order, and continue production on an ongoing daily basis
1 For purposes of this Order "telephony metadata'' includes comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call Telephony metadata does not include the substantive content of any communication, as defined by 18 U.S.C. § 2510(8), or the name, address, or financial information of a subscriber or customer.
TOP SECRET//SI/JNO:FORN
3

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 5 of 18
TOP SECRE'Ff/Sll/NOFORN thereafter for the duration of this order, unless otherwise ordered by the Court, an elec.tronic copy of the following tangible things: all call detail records or "telephony metadata" created b y - for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls. •
(2) With respect to any information the FBI receives as a result of this Order (information that is disseminated to it by NSA), the FBI shall follow as minimization procedures the procedures set forth in The Attorney General's Guidelines for Domestic FBI Operations (September 29, 2008).
(3) With respect to the information that NSA receives as a result of this Order, NSA shall strictly adhere to the following minimization procedures:
A. The government is hereby prohibited from accessing business record metadata acqµired pursuant to this Court's orders in the above-captioned docket and its . predecessors ("BR metadata") for any purpose except as described herein.
B. NSA shall store and process the BR metadata in repositories within secure networks under NSA's control.2 The BR metadata shall carry unique markings such
2 The Court understands that NSA will maintain the BR metadata in recovery back-up systems for mission assurance and continuity of operations purposes. NSA shall ensure that any access
TOP SECRET//SIHNOFORN
4

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 6 of 18

TOP' SECRET//SI/fNOFORN

.

'

that software and other controls (including user authentication services) can restrict

access to it to authorized personnel who have received appropriate and adequate

training with regard to this authority. NSA shall restrict access to the BR metadata to

authorized personnel who have received appropriate and adequate training.3

Appropriately trained and authorized technical personnel may access the BR metadata

to perform those processes needed to make it usable for intelligence analysis. Technical

personnel may query the BR metadata using selection terms4 that have not been RAS-

approved (described below) for those purposes described above, and may share the

results of those queries with other authorized personnel responsible for these purposes,

or use of the BR metadata in the event of any natural disaster, man-made emergency, attack, or
other unforeseen event is in compliance with the Court's Order.
3 The Court understands that the teclmical personnel responsible for NSA's underlying corporate infrastructure and the transmission of the BR metadata from the specified persons to NSA, will not receive special training regarding the authority granted herein.

TOP s-gcRET//SI/fNOFORN 5

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 7 of 18

TOP SECRETl/SI//NOFORN but the results of any such queries will not be used for intelligence analysis purposes.

An authorized technician may access the BR rnetadata to ascertain those identifiers that

may .be high volume identifiers. The technician may share the results of any such

access, i.e., the identifiers and the fact that they are high volume identifiers, with

authorized personnel (including those responsible for the identification and defeat of

high volume and other unwanted BR metadata from any 9f NSA' s various rnetadata

repositories), but may not share any other information from the results of that access for

intelligence analysis purposes. In addition, authorized technical personnel may access

the BR rnetadata for purposes of obtaining foreign intelligence information pursuant to

the requirements of subparagraph (3)C below.

C. NSA shall access the BR metadata for purposes of obtaining foreign

intelligence information only through contact chaining queries of the BR rnetadata as

described in paragraph 17 of the Declaration of

, attached to the

application as Exhibit A, using selection terms approved as "seeds" pursuant to the

RAS approval process described below.5 NSA shall ensure, through adequate and

s For purposes of this Order, "National Security Agency" and "NSA personnel" are defined as any employees of the National Security Agency/Central Security Service ("NSA/CSS" or "NSA") and any other personnel engaged in Signals Intelligence (SIGINT) operations authorized pursuant to FISA if such operations are executed under the direction, authority, or control of the Director, NSA/Chief, CSS (DIRNSA). NSA personnel shall not disseminate BR metadata outside the NSA unless the dissemination is permitted by, and in accordance with, the requirements of this Order that are applicable to the NSA.
TO:P
6

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 8 of 18
'fOf' SECRETl/SIHNOFORN appropriate technical and management controls, that queries of the BR metadata for intelligence analysis purposes will be initiated using only a selection term that has been RAS-approved. Whenever the BR metadata is accessed for foreign intelligence analysis purposes or using foreign intelligence analysis query tools, an auditable record of the activity shall be generated.6
(i) Except as rrovided in subparagraph (ii) below, all selection terms to be used as "seeds" with which to query the BR metadata shall be approved by any of the following designated approving officials: the Chief or Deputy Chief, Homeland Security Analysis Center; or one of the twenty specially-authorized Homeland Mission Coordinators in the Analysis and Production Directorate of the Signals Intelligence Directorate. Such approval shall be given only after the designated approving official has determined that based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are facts giving rise to a reasonable, articulable suspicion (RAS) that the selection term to be queried is associated with
6 This auditable record requirement shall not apply to accesses of the results of RAS-approved queries.
TOP SECRET//61//NOFORN 7

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 9 of 18 TOP SFCRlffHSI//NO'.FORN
provided, however, that NSA's Office of General Counsel (OGC)
. i
'fOP SECRE'f//SI!INOFORN 8

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 10 of 18
TOP SECRE1'//SIHNOFORN shall first determine that any selection term reasonably believed to be used by a United States (U.S.) person is not regarded as associated w i t h -
on the basis of activities that are First Amendment to the Constitution.
(ii) Selection terms that are currently the subject of electronic surveillance authorized by the Foreign Intelligence Surveillance Court (FISC) based on the FISC's finding of probable cause to believe that they are used b y -
including those used by U.S. persons, may be deemed approved for querying for the period of FISC-authorized electronic surveillance without review and approval by a designated approving official. The preceding sentence shall not apply to selection terms under surveillance
TOP 9

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 11 of 18
TOP SECRET//SIHNOFORN pursuant to any certification of the Director of National Intelligence and the Attorney General pursuant to Section 702 of FISA, as added by the FISA
Amendments Act of 2008, or pursuant to an Order of the FISC issued under Section 703 or Section 704 of FISA, as added by the FISA Amendments Act of 2008.
(iii) A determination by a designated approvjng official that a selection term is associated with
shall be effective for: one hundred eighty days for any selection term reasonably believed to be used by a U.S. person; and one year for all other selection terms.9,io
· 9 The.Court understands that from time to time the information available to designated .approving offidals will indicate that a selection term is or was associated with a Foreign Power only for a specific and limited time frame. In such cases, a designated approving official may
determme that the reasonable, articulable suspicion standard is met, but the time frame for
which the selection term is or was associated with a Foreign Power shall be specified. The automated query process described ill the-Declaration limits the first hop query results to the specified time frame. Analysts .conducting manual queries using that selection term shall continue to properly minimize information that may be returned within query results that fall outside of that timeframe.
TOP SECRE'FJ/SI//NOFORN .10

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 12 of 18
Tor · (iv) Queries of the BR metadata using RAS-approved selection terms may occur either by manual analyst query or through the automated query process described below.11 This automated query process queries the collected BR metadata (in a /1 collection store") with RAS-approved selection terms and returns the hop-limited results from those queries to a /1corporate store." The corporate store may then be searched by appropriately and adequately trained personnel for valid foreign intelligence purposes, without the requirement that those searches use only RAS-approved selection terms. The specifics of the automated query process, as described in t h e - Declaration, are as follows:
11 This autom.ated query process was initially approved by this Court in i t s - 2012 Order amending docket number12 As an added protection in case technical issues prevent the process from verifying that the most up-to-date list of RAS-approved selection terms is being used, this step of the automated process checks the expiration dates of RAS-approved selection terms to confirm that the approvals for those terms have not expired. This step does not use expired RAS-approved selection terms to create the list of "authorized query terms" (described below) regardless of whether the list of RAS-approved selection terms is up-to-date.
TOP SBCRE.Th'SI/./NOFORN 11

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 13 of 18
. ; : :
TOP SECRETHSI//NOFORN
D. Results of any intelligence analysis queries of the BR metadata may be shared, prior to minimization, for intelligence analysis purposes among NSA analysts, subject to the .requirement that all NSA personnel who receive query results in any form first
TOP SECRE'fHSIHNOFORN 12

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 14 of 18
!
'fOf SECRE'f't/Slf/NOFORN receive appropriate and adequate trainfug and gliidance regarding the procedures and restrictions for the handling and dissemination of such information.15 NSA shall apply the minimization and dissemination requirements and procedures of Section 7 of United States Signals Intelligence Directive SP0018 (USSID 18) issued on January 25, 2011, to any results from queries of the BR metadata, in any form, bef_ore the information is disseminated outside of NSA in any form. Additionally, prior to disseminating any U.S. person information outside NSA, the Director of NSA, the Deputy Director of NSA, or one of the officials listed in Section 7.3(c) of USSID 18 (i&v the Director of the Signals Intelligence Directorate (SID), the Deputy Director of the SID, the Chief of the Information Sharing Services (ISS) office, the Deputy Chief of the ISS office, and the Senior Operations Officer of the National Security Operations Center) must determine that the information identifying the U.S. person is in fact related to counterterrorism information and that it is necessary to understand the counterterrorism information or assess its importance.16 Notwithstanding the above requirements, NSA may share results from intelligence analysis queries of the BR metadata, including U.S. person identifying information, with Executive Branch 15 In addition, the Court understands that NSA may apply the full range of SIGINT analytic tradecraft to the results of intelligence analysis queries of the collected BR metadata. 16 In the event the Government encounters circumstances that it believes necessitate the alteration of these dissemination procedures, it may obtain prospectively-applicable modifications to the procedures upon a determination by the Court that such modifications are appropriate under the circumstances and in light of the size and nature of this bulk collection.
TOP SECRET//Sl//NOFORN 13

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 15 of 18
'fOP SECRE'f/tSl//NOFORN personnel (1) in order to enable them to determine whether the information contains exculpatory or impeachment information or is otherwise discoverable in legal proceedings or (2) to facilitate their lawful oversight functions.
E. BR metadata shall be destroyed no later than five years (60 months) after its initial collection.
F. NSA and the National Security Division of the Department of Justice (NSD/DoJ) shall conduct oversight of NSA's activities under this authority as outlined below.
(i) NSA's OGC and Office of the Director of Compliance (ODOC) shall · ensure that personnel with access to the BR metadata receive appropriate and adequate training and guidance regarding the procedures and restrictions for collection, storage, analysis, d.issemination, and retention of the BR metadata and the results of queries of the BR metadata. NSA's OGC and ODOC shall further ensure that all NSA personnel who receive query results in any form first receive appropriate and adequate training and guidance regarding the procedures and restrictions for the handling and dissemination of such information. NSA shall maintain records of all such training.17 OGC shall provide NSD/DoJ with copies
17 The nature of the training that is appropriate and adequate for a particular person will
depend on the person's responsibilities and the circumstances of his access to the BR metadata or the results from any queries of the metadata.
TOP SECRET/ISJ//NOFORN
14

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 16 of 18
TOP SECRET//Slf/NOFORN of all formal briefing and/or training materials (including all revisions thereto) used to brief/train NSA personnel concerning this authority.
(ii) NSA's ODOC shall monitor the implementation and use of the software and other controls (including user authentication services) and the logging of auditablc information referenced above.
(iii) NSA's OGC shall consult with NSD/DoJ on all significant legal opinions that relate to the interpretation, scope, and/or implementation of this authority. When operationally practicable, such consultation shall occur in advance; otherwise NSD shall be notified as soon as practicable.
(iv) At least once during the authorization period, NSA's OGC, ODOC, NSD/DoJ, and any other appropriate NSA representatives shall meet for the purpose of assessing compliance with this Court's orders. Included in this meeting will be a review of NSA's monitoring and assessment to ensure that only approved metadata is being acquired. The results of this meeting shall be reduced to writing and submitted to the Court as part of any application to renew or reinstate the authority requested herein.
(v) At least once during the authorization period, NSD/DoJ shall with NSA's Office of the Inspector General to discuss their respective oversight responsibilities and assess NSA's compliance with the Court's orders.
TOP SECRET//Sfh'NOFORN
15

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 17 of 18
'FOP SECRE'F//SI//NOFORN (vi) At least once during the authorization period, NSA's OGC and NSD/DoJ shall review a sample of the justifications for RAS approvals for selection terms used to query the BR metadata. (vii) Prior to implementation, all proposed automated query processes shall be reviewed and approved by NSA's OGC, NSD/DoJ, and the Court. G. Approximately every thirty days, NSA shall file with the Court a report that includes a discussion of NSA's application of the RAS standard, as well as NSA's implementation of the automated query process. In addition, should the United States seek renewal of the requested authority, NSA shall also include in its report a description of any significant changes proposed in the way in which the call detail records would be received from the Providers and any significant changes to the . controls NSA has in place to receive, store, process, and disseminate the BR metadafa. Each report shall include a statement of the number of instances since the preceding report in which NSA has shared, in any form, results from queries of the BR metadata that contain United States person information, in any form, with anyone outside NSA. For each such instance in which United States person information has been shared, the report shall include NSA's attestation that one of the officials authorized to approve such disseminations determined, prior to dissemination, that the information was related to counterterrorism information and necessary to understand
TOP 16

Case 1:13-cv-03994-WHP Document 33-2 Filed 08/26/13 Page 18 of 18
'POP SECRET/ISl/INOFORN counterterrorism information or to assess its importance.
This authorization regarding

of July, 2013, at 5:00 p.m., Eastern Time.

Signed

04-25-2013 P02=26

Date

Time

Eastern Time

expires on the l'r" day
t

nited States Foreign Intelligence Surveillance Court

'fOP SECKE'f//St//NOFORN
17

Case 1:13-cv-03994-WHP Document 33-3 Filed 08/26/13 Page 1 of 4
Exhibit 3

Case 1:13-cv-03994-WHP Document 33-3 Filed 08/26/13 Page 2 of 4
DNI Statement on Recent Unauthorized Disclosures of Classified Information
June 6, 2013
DNI Statement on Recent Unauthorized Disclosures of Classified Information The highest priority of the Intelligence Community is to work within the constraints of law to collect, analyze and understand information related to potential threats to our national security.
The unauthorized disclosure of a top secret U.S. court document threatens potentially long-lasting and irreversible harm to our ability to identify and respond to the many threats facing our nation.
The article omits key information regarding how a classified intelligence collection program is used to prevent terrorist attacks and the numerous safeguards that protect privacy and civil liberties.
I believe it is important for the American people to understand the limits of this targeted counterterrorism program and the principles that govern its use. In order to provide a more thorough understanding of the program, I have directed that certain information related to the “business records” provision of the Foreign Intelligence Surveillance Act be declassified and immediately released to the public.
The following important facts explain the purpose and limitations of the program:
The judicial order that was disclosed in the press is used to support a sensitive intelligence collection operation, on which members of Congress have been fully and repeatedly briefed. The classified program has been authorized by all three branches of the Government.
Although this program has been properly classified, the leak of one order, without any context, has created a misleading impression of how it operates. Accordingly, we have determined to declassify certain limited information about this program.
The program does not allow the Government to listen in on anyone’s phone calls. The information acquired does not include the content of any communications or the identity of any subscriber. The only type of information acquired under the Court’s order is telephony metadata, such as telephone numbers dialed and length of calls.
The collection is broad in scope because more narrow collection would limit our ability to


Case 1:13-cv-03994-WHP Document 33-3 Filed 08/26/13 Page 3 of 4
DNI Statement on Recent Unauthorized Disclosures of Classified Information
screen for and identify terrorism-related communications. Acquiring this information allows us to make connections related to terrorist activities over time. The FISA Court specifically approved this method of collection as lawful, subject to stringent restrictions.
The information acquired has been part of an overall strategy to protect the nation from terrorist threats to the United States, as it may assist counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities.
There is a robust legal regime in place governing all activities conducted pursuant to the Foreign Intelligence Surveillance Act, which ensures that those activities comply with the Constitution and laws and appropriately protect privacy and civil liberties. The program at issue here is conducted under authority granted by Congress and is authorized by the Foreign Intelligence Surveillance Court (FISC). By statute, the Court is empowered to determine the legality of the program.
By order of the FISC, the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. All information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling. The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization. Only specially cleared counterterrorism personnel specifically trained in the Court-approved procedures may even access the records.
All information that is acquired under this order is subject to strict restrictions on handling and is overseen by the Department of Justice and the FISA Court. Only a very small fraction of the records are ever reviewed because the vast majority of the data is not responsive to any terrorism-related query.
The Court reviews the program approximately every 90 days. DOJ conducts rigorous oversight of the handling of the data received to ensure the applicable restrictions are followed. In addition, DOJ and ODNI regularly review the program implementation to ensure it continues to comply with the law.
The Patriot Act was signed into law in October 2001 and included authority to compel production of business records and other tangible things relevant to an authorized national security investigation with the approval of the FISC. This provision has subsequently been reauthorized over the course of two Administrations – in 2006 and in 2011. It has been an important investigative tool that has been used over the course of two Administrations, with


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DNI Statement on Recent Unauthorized Disclosures of Classified Information
the authorization and oversight of the FISC and the Congress. Discussing programs like this publicly will have an impact on the behavior of our adversaries and make it more difficult for us to understand their intentions. Surveillance programs like this one are consistently subject to safeguards that are designed to strike the appropriate balance between national security interests and civil liberties and privacy concerns. I believe it is important to address the misleading impression left by the article and to reassure the American people that the Intelligence Community is committed to respecting the civil liberties and privacy of all American citizens.
James R. Clapper, Director of National Intelligence ###

Powered by TCPDF (www.tcpdf.org)

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Exhibit 4

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Case 1:13-cv-03994-WHP Document 33-5 Filed 08/26/13 Page 1 of 6
Exhibit 5

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Exhibit 6

DIANNE FEINSTEIN. CALIFORNIA.. C'<AIRMAN CHRISTOPHER S. BOND. MISSOURI. VICE CHAIRMAN

JOHN D. ROCKEFELLER IV. WEST VIRGINIA RON WYOEN, OREGON
EVAN BAYH, INDIANA BAABAIIA A. MIICULSIO, MARYlAND RUSSELL D. FEINGOlD. WISCONSIN BILL NELSON, A.ORIDA SHELDON WHITEHOUSE. RHODE ISLAND

ORRIN HA.TCM, UTAH OlYMPIA J. SNOWE. MAINE SAXBY CHAMBLISS. GEORGIA
RICHARD BURR, NORTH CAROLINA TOM C08URN. OKLAHOMA JAMES E. RISCH. IDAHO

HARRY REID, NEVADA, eX OFFICIO MITCH McCONNEll. KENTLICKY. ex OFFICIO
CARL LEVIN, MICHIGAN. EX OFFICIO JOHN McCAIN, ARIZONA, EX OFFICIO

DAVID GRANNIS, STAFF DIRECTOR LOUIS B. TUCKER. MINORITY STAFF DIRECTOR
KATHLEEN P. McGHEE. CHIEF CLERK

ti.nittd
SELECT COMMITTEE ON INTELLIGENCE WASHINGTON, DC 2051!Hl475
February 23, 2010

Dear Colleague:
Three provisions of the Foreign Intelligence Surveillance Act of 1978 (FISA) will sunset on February 28, 2010: (1) authority for roving electronic surveillance oftargets who take steps to thwart FISA surveillance (Section 206 of the USA PATRIOT Act); (2) authority to compel production of business records and other tangible things with the approval of the FISA Court (Section 215 of the USA PATRIOT Act); and (3) authority to target non-U.S. person "lone wolves" who engage in international terrorist activities but are not necessarily associated with an identified terrorist group (Section 6001 of the Intelligence Reform and Terrorism Prevention Act).
Members of the Select Committee on Intelligence have previously requested that the Executive Branch permit each Member of Congress access to information on the nature and significance of intelligence authority on which they are asked to vote. In response to these requests, the Attorney General and the Director of National Intelligence have provided a classified paper to the House and Senate Intelligence Committees on important intelligence collection made possible by authority that is subject to the approaching sunset, and asked for our assistance in making it available, in a secure setting, directly and personally to any interested Member.
We would like to invite each Member of the Senate to read this classified paper in the Intelligence Committee's offices in 211 Hart Senate Office Building. The Attorney General and DNI have offered to make Department of Justice and Intelligence Community personnel available to meet with any Member who has questions. We will be pleased to make members of our staff available for the same purpose. Please contact our Security Director, James Wolfe, at 224-1751, to arrange for a time.
Sincerely,

ianne Feinstein Chairman

//

Case 1:13-cv-03994-WHP Document 33-7 Filed 08/26/13 Page 1 of 2
Exhibit 7

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Case 1:13-cv-03994-WHP Document 33-8 Filed 08/26/13 Page 1 of 6
Exhibit 8

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Case 1:13-cv-03994-WHP Document 33-9 Filed 08/26/13 Page 1 of 3
Exhibit 9

Case 1:13-cv-03994-WHP Document 33-9 Filed 08/26/13 Page 2 of 3

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Case 1:13-cv-03994-WHP Document 33-10 Filed 08/26/13 Page 1 of 3
Exhibit 10

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Case 1:13-cv-03994-WHP Document 33-10 Filed 08/26/13 Page 3 of 3

Exhibit 11

!

OIANNE FEINSTEIN. CALIFORNIA. CHAIRMAN SAXBY CHAMBliSS. GEORGIA. VICE CHAIRMAN

JOHN D. ROCICEFELLER IV. WEST VtRGINtA
RON WYDI:N. OREGON BAA8AAA A. MIKUlSKl MAIIYI.ANO Bill NEI:.SON. FlORIDA
KENT CONRAD. NORTH DAKOTA MARK UDAlL. COLORADO MARK WARNER. VIRGINIA

OLYMPIA J. SNOWE. MAtNE RICHARD BURR,. NOfiTH CAROliNA JAMES E. RISCH. IDAHO DANIEL C0ATS. INDIANA ROY BLUNT. MISSOURI
MARCO RUBIO. FlORIDA

HARRY REID, NEVADA. EX OFFICIO MITCH McCONNELl.. kENTUCKY, EX OfRCIO
CARL LEVIN, MP'CIGAN. EX OFFICIO JOHN McCAIN. ARIZONA. EX OFFICIO

OAVIO GRANNIS. STAFF [)(RECTOR
MARTHA SCOTT POINDEXER. MINORITY STAFF DIRECTOR KATHlEEN P. McGHEE. CHIEf ClERK

Dear Colleague:

ltCl#
tinittd
SELECT COMMITTEE ON INTELLIGENCE WASHINGTON. DC 20510-6475
February 8, 2011

2011- 0 82 3

Three provisions ofthe Foreign Intelligence Surveillance Act of 1978 (FISA) will sunset on February 28, 2011. Two -one on roving authority for electronic surveillance and the other on the acquisition of business records that are
. relevant to investigations to protect against international terrorism or espionage -
were added to FISA by the USA PATRIOT Act. The third, on "lone wolf'' authority under FISA, was added by the Intelligence Reform Act of2004.

Members of our Committee have previously requested that the Executive Branch permit each Member of Congress access to information on the nature and significance of the intelligence authority on which they are asked to vote. In response, last year the Attorney General and the Director of National Intelligence (DNI) provided a classified report to the House and Senate Intelligence Committees in advance of the previous sunset date ofFebruary 28,2010. At the request ofour Committee, the Attorney General and DNI have now provided an updated classified report for review by Members in connection with this year's February 28, 2011 sunset. As was requested last year, they have asked that any interested Member review this report in a secure setting.

We invite each Senator to read this classified report in our committee spaces in Room 211, Hart Senate Office Building. The Attorney General and DNI have offered to make Justice Department and Intelligence Community personnel available to meet with any Member who has questions. We will be pleased to make our staff available for the same puipose. Please contact our Security Director, James Wolfe, at 224-1751, to arrange to read the report.

Sincerely,

- .,

...

_.

----·

Dianne Feinstein

Chairman

Case 1:13-cv-03994-WHP Document 33-12 Filed 08/26/13 Page 1 of 3
Exhibit 12

U.S. Senate Select Committee on Intelligence

Page 1 of 2

Case 1:13-cv-03994-WHP Document 33-12 Filed 08/26/13 Page 2 of 3

113th Congress (2013-2014)
112th Congress (2011-2012)
111th Congress (2009-2010)
110th Congress (2007-2008)
109th Congress (2005-2006)
108th Congress (2003-2004)
107th Congress (2001-2002)

Press Release of Intelligence Committee
Feinstein, Chambliss Statement on NSA Phone Records Program
Contact: Brian Weiss (Feinstein), (202) 224-9629 Lauren Claffey (Chambliss), (202) 224-3423
Thursday, June 6, 2013
Washington—Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) and Vice Chairman Saxby Chambliss (R-Ga.) today released the following joint statement:
“A primary mission of the U.S. intelligence community is to detect and prevent terrorist attacks against the United States, and Congress works closely with the executive branch to ensure that the authorities necessary to keep our country safe are in place. One of these authorities is the ‘business records’ provision of the Foreign Intelligence Surveillance Act under which the executive branch is authorized to collect ‘metadata’ concerning telephone calls, such as a telephone number or the length of a call. This law does not allow the government to listen in on the content of a phone call.
“The executive branch’s use of this authority has been briefed extensively to the Senate and House Intelligence and Judiciary Committees, and detailed information has been made available to all members of Congress prior to each congressional reauthorization of this law.
“Ensuring security, however, must be consistent with respect for the constitutional rights of all Americans. The alleged FISA Court order contained in the Guardian article does not give the government authority to listen in on anyone’s telephone call, nor does it provide the government with the content of any communication or the name of any subscriber. As with other FISA authorities, all information the government may receive under such an order would be subject to strict limitations. While our courts have consistently recognized that there is no reasonable expectation of privacy in this type of metadata information and thus no search warrant is required to obtain it, any subsequent effort to obtain the content of an American’s communications would require a specific order from the FISA Court.
“The intelligence community has successfully used FISA authorities to identify terrorists and those with whom they communicate, and this intelligence has helped protect the nation. The threat from terrorism remains very real and these lawful intelligence activities must continue, with the careful oversight of the executive, legislative and judicial branches of government.”

http://www.intelligence.senate.gov/press/record.cfm?id=343993

8/26/2013

U.S. Senate Select Committee on Intelligence

Page 2 of 2

Case 1:13-cv-03994-WHP Document 33-12 Filed 08/26/13 Page 3 of 3

###

211 Hart Senate Office Building, Washington, D.C. 20510 Phone: 202-224-1700
Copyright © 2006 United States Senate Select Committee on Intelligence

http://www.intelligence.senate.gov/press/record.cfm?id=343993

8/26/2013

Case 1:13-cv-03994-WHP Document 33-13 Filed 08/26/13 Page 1 of 68
Exhibit 13

Case 1:13-cv-03994-WHP Document 33-13 Filed 08/26/13 Page 2 of 68
Title Info
Title: REP. MIKE D. ROGERS HOLDS A HEARING ON SURVEILLANCE PROGRAMS
Date: June 18, 2013
Location: WASHINGTON, D.C.
Committee: Permanent Select Committee on Intelligence. House
Permalink: HTTP://congressional.proquest.com/congressional/docview/t65.d40.06180003.u30?accountid=14740
Speaker
REP. MIKE D. ROGERS
Body
ROGERS: The committee will come to order.
General Alexander, Deputy Attorney General Cole, Chris Inglis, Deputy Director Joyce and Mr. Litt, thank you for appearing before us today, especially on short notice.
The ranking member and I believe it is important to hold an open hearing today, and we don't do a tremendous amount of those, to provide this House and the public with an opportunity to hear directly from you how the government is using the legal authorities that Congress has provided to the executive branch since the terrorist attacks of September 11th, 2001.
I'd also like to recognize the hard work of the men and women of the NSA and the rest of the intelligence community who work day in and day out to disrupt threats to our national security. People at the NSA in particular have heard a constant public drumbeat about a laundry list of nefarious things they are alleged to be doing to spy on Americans -- all of them wrong. The misperceptions have been great, yet they keep their heads down and keep working every day to keep us safe.
ROGERS: And, General Alexander, please convey our thanks to your team for continuing every day, despite much misinformation about the quality of their work. And thank them for all of us for continuing to work to protect America.
I also want to take this moment to thank General Alexander who has been extended as national security adviser in one way or another three different times. That's a patriot.
This is a very difficult job at a very difficult time in our history. And for the general to accept those extensions of his military service to protect this nation, I think with all of the -the, again, the misinformation out there, I want to thank you for that.

Case 1:13-cv-03994-WHP Document 33-13 Filed 08/26/13 Page 3 of 68
Thank you for your patriotism. Thank you for continuing to serve to protect the United States, again. And you have that great burden of knowing lots of classified information you cannot talk publicly about. I want you to know, thank you on behalf of America for your service to your country.
The committee has been extensively briefed on these efforts over a regular basis as a part of our ongoing oversight responsibility over the 16 elements of the intelligence community and the national intelligence program.
In order to fully understand the intelligence collection programs most of these briefings and hearings have taken place in classified settings. Nonetheless, the collection efforts under the business records provision in Section 702 of the Foreign Intelligence Surveillance Act are legal, court-approved and subject to an extensive oversight regime.
I look forward from hearing from all of the witnesses about the extensive protections and oversight in place for these programs.
General Alexander, we look forward to hearing what you're able to discuss in an open forum about how the data that you have -- you obtain from providers under court order, especially under the business records provision, is used.
And Deputy Attorney General Cole, we look forward to hearing more about the legal authorities themselves and the state of law on what privacy protections Americans have in these business records.
One of the frustrating parts about being a member of this committee, and really challenge, is sitting at the intersection of classified intelligence programs and transparent democracy as representatives of the American people.
The public trusts the government to protect the country from another 9/11-type attack, but that trust can start to wane when they are faced with inaccuracies, half truths and outright lies about the way the intelligence programs are being run.
One of the more damaging aspects of selectively leaking incomplete information is that it paints an inaccurate picture and fosters distrust in our government.
This is particularly so when those of us who have taken the oath to protect information that can damage the national security if released cannot publicly provide clarifying information because it remains classified.
It is at times like these where our enemies with -- our enemies within become almost as damaging as our enemies on the outside.
It is critically important to protect sources and methods so we aren't giving the enemy our play book.
It's also important, however, to be able to talk about how these
2

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programs help protect us so they can continue to be reauthorized. And then we highlight the protections and oversight of which these programs operate under.
General Alexander, you and I have talked over the last week, about the need to -- to be able to publicly elaborate on the success stories these authorities have contributed to without jeopardizing ongoing operations. I know you'll have the opportunity to talk about several of those today.
I place the utmost value in protecting sources and methods. And that's why you've been, I think, so diligent in making sure that anything that's disclosed comports with the need to protect sources and methods. So that, again, we don't make it easier for the bad guys overseas, terrorists in this case, to do harm to United States citizens, and I respect that.
I also recognize that when we are forced into the position of having so publicly discussed intelligence programs due to irresponsible criminal behavior that we also have to be careful to balance the need for secrecy while educating the public.
I think you have struck the right balance between protecting sources and methods and maintaining the public's trust by providing more examples of how these authorities have helped disrupt terrorist plots and connections. I appreciate your efforts in this regard.
For these authorities to continue, they must continue to be available. Without them, I fear we will return to the position where we were prior to the attacks of September 11th, 2001. And that would be unacceptable for all of us. I hope today's hearing will help answer questions that have arisen as a result of the fragmentary and distorted illegal disclosures over the past several days.
Before recognizing General Alexander for his opening statement, I turn the floor over to the ranking member for any opening statement he'd like to make.
RUPPERSBERGER: Well, I agree with really a lot of what the chairman said.
General Alexander, Chris Inglis, you know, your leadership in NSA has been outstanding. And I just want to acknowledge the people who work at NSA every day. NSA is in my district. I have an occasion to communicate, and a lot of the people who go to work to protect our country, who work hard every day, are concerned that the public think they're doing something wrong. And that's not the case at all.
And the most important thing we can do here today is let the public know the true facts. I know that Chairman Rogers and I and other members have asked you to help declassify what we can, that will not hurt our security, so the public can understand that this important (sic) is legal, why we're doing this program and how it protects us.
We're here today because of the brazen disclosure of critical
3

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classified information that keeps our country safe. This widespread leak by a 29-year-old American systems administrator put our country and our allies in danger by giving the terrorists a really good look at the play book that we use to protect our country. The terrorists now know many of our sources and methods.
There's been a lot in the media about this situation. Some right. A lot wrong. We're holding this open hearing today so we can set the record straight and the American people can hear directly from the intelligence community as to what is allowed and what is not under the law. We need to educate members of Congress also, with the public.
To be clear, the National Security Agency is prohibited from listening in on phone calls of Americans without proper, courtapproved legal authorities.
We live in a country of laws. These laws are strictly followed and layered with oversight from three branches of government, including the executive branch, the courts and Congress.
Immediately after 9/11, we learned that a group of terrorists were living in the United States actively plotting to kill Americans on our own soil. But we didn't have the proper authorities in place to stop them before they could kill almost 3,000 innocent people.
Good intelligence is clearly the best defense against terrorism. There are two main authorities that have been highlighted in the press, the business records provision that allows the government to legally collect what is called metadata, simply the phone number and length of call. No content, no conversations. This authority allows our counterterrorism and the law enforcement officials to close the gap on foreign and domestic terrorist activities. It enables our intelligence community to discover whether foreign terrorists have been in contact with people in the U.S. who may be planning a terrorist attack on U.S. soil.
The second authority is known as Section 702 of the FISA Amendment Act. It allows the government to collect the content of email and phone calls of foreigners -- not Americans -- located outside the United States. This allows the government to get information about terrorists, cyber-threats, weapons of mass destruction and nuclear weapons proliferation that threaten America.
This authority prohibits the targeting of American citizens or U.S. permanent residents without a court order, no matter where they are located.
Both of these authorities are legal. Congress approved and reauthorized both of them over the last two years. In fact, these authorities have been instrumental in helping prevent dozens of terrorist attacks, many on U.S. soil.
But the fact still remains that we must figure out how this could have happened. How was this 29-year-old systems administrator able to access such highly classified information and about such sensitive matters? And how was he able to download it and remove it from his
4

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workplace undetected?
We need to change our systems and practices, and employ the latest in technology that would alert superiors when a worker tries to download and remove this type of information. We need to seal this crack in the system.
And to repeat something incredibly important: The NSA is prohibited from listening to phone calls or reading e-mails of Americans without a court order. Period. End of story.
Look forward your testimony.
ROGERS: Again, thank you very much.
Thanks, Dutch, for that.
General Alexander, the floor is yours.
ALEXANDER: Chairman, Ranking Member, thank you for the kind words. I will tell you it is a privilege and honor to serve as the director of the National Security Agency and the commander of the U.S. Cyber Command.
As you noted, we have extraordinary people doing great work to protect this country and to protect our civil liberties and privacy.
Over the past few weeks, unauthorized disclosures of classified information have resulted in considerable debate in the press about these two programs. The debate had been fueled, as you noted, by incomplete and inaccurate information, with little context provided on the purpose of these programs, their value to our national security and that of our allies, and the protections that are in place to preserve our privacy and civil liberties.
Today, we will provide additional detail and context on these two programs to help inform that debate.
These programs were approved by the administration, Congress and the courts. From my perspective, a sound legal process that we all work together as a government to protect our nation and our civil liberties and privacy.
ALEXANDER: Ironically, the documents that have been released so far show the rigorous oversight and compliance our government uses to balance security with civil liberties and privacy.
Let me start by saying that I would much rather be here today debating this point than trying to explain how we failed to prevent another 9/11. It is a testament to the ongoing team work of the Central Intelligence Agency, the Federal Bureau of Investigation, and the National Security Agency, working with our allies and industry partners, that we have been able to connect the dots and prevent more terrorist attacks.
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The events of September 11, 2001 occurred, in part, because of a failure on the part of our government to connect those dots. Some of those dots were in the United States. The intelligence community was not able to connect those domestic dots, phone calls between operatives and the U.S. and Al Qaida terrorist overseas. Following the 9/11 commission, which investigated the intelligence community's failure to detect 9/11, Congress passed the PATRIOT Act.
Section 215 of that act, as it has been interpreted and implied, helps the government close that gap by enabling the detection of telephone contact between terrorists overseas and operatives within the United States. As Director Mueller emphasized last week during his testimony to the -- to the Judiciary Committee, if we had had Section 215 in place prior to 9/11, we may have known that the 9/11 hijacker Mihdhar was located in San Diego and communicating with a known Al Qaida safe house in Yemen.
In recent years, these programs, together with other intelligence, have protected the U.S. and our allies from terrorist threats across the globe to include helping prevent the terrorist -the potential terrorist events over 50 times since 9/11. We will actually bring forward to the committee tomorrow documents that the interagency has agreed on, that in a classified setting, gives every one of those cases for your review. We'll add two more today publicly we'll discuss. But as the chairman noted, if we give all of those out, we give all the secrets of how we're tracking down the terrorist as a community. And we can't do that. Too much is at risk for us and for our allies. I'll go into greater detail as we go through this testimony this morning.
I believe we have achieved the security and relative safety in a way that does not compromise the privacy and civil liberties of our citizens. We would like to make three fundamental points. First, these programs are critical to the intelligence community's ability to protect our nation and our allies' security. They assist the intelligence community efforts to connect the dots.
Second, these programs are limited, focused, and subject to rigorous oversight. They have distinct purposes in oversight mechanisms. We have rigorous train programs for our analysts and their supervisors to understand their responsibilities regarding compliance.
Third, the disciplined operation of these programs protects the privacy and civil liberties of the American people. We will provide important details about each of those. First, I'd -- I'd ask the Deputy Attorney General Jim Cole to discuss the overarching framework of our authority.
Sir.
COLE: Thank you -- thank you, General.
Mr. Chairman, Mr. Ranking Member, members of the committee, as General Alexander said, and -- and as the chairman and ranking member have said, all of us in the national security area are constantly trying to balance protecting public safety with protecting people's
6

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privacy and civil liberties in this government. And it's a constant job at balancing this.
We think we've done this in these instances. There are statutes that are passed by Congress. This -- this is not a program that's off the books, that's been hidden away. This is part of what government puts together and discusses. Statutes are passed. It is overseen by three branches of our government, the Legislature, the Judiciary, and the Executive Branch. The process of oversight occurs before, during, and after the processes that we're talking about today.
And I want to talk a little bit how that works, what the legal framework is, and what some of the protections are that are put into it. First of all, what we have seen published in the newspaper concerning 215 -- this is the business records provisions of the PATRIOT Act that also modify FISA.
You've seen one order in the newspaper that's a couple of pages long that just says under that order, we're allowed to acquire metadata, telephone records. That's one of two orders. It's the smallest of the two orders. And the other order, which has not been published, goes into, in great detail; what we can do with that metadata; how we can access it; how we can look through it; what we can do with it, once we have looked through it; and what the conditions are that are placed on us to make sure that we protect privacy and civil liberties; and, at the same time, protect public safety.
Let me go through a few of the features of this. First of all, it's metadata. These are phone records. These -- this is just like what you would get in your own phone bill. It is the number that was dialed from, the number that was dialed to, the date and the length of time. That's all we get under 215. We do not get the identity of any of the parties to this phone call. We don't get any cell site or location information as to where any of these phones were located. And, most importantly, and you're probably going to hear this about 100 times today, we don't get any content under this. We don't listen in on anybody's calls under this program at all.
This is under, as I said, section 215 of the PATRIOT Act. This has been debated and up for reauthorization, and reauthorized twice by the United States Congress since its inception in 2006 and in 2011. Now, in order -- the way it works is, the -- there is an application that is made by the FBI under the statute to the FISA court. We call it the FISC. They ask for and receive permission under the FISC under this to get records that are relevant to a national security investigation. And they must demonstrate to the FISC that it will be operated under the guidelines that are set forth by the attorney general under executive order 12333. This is what covers intelligence gathering in the federal government.
It is limited to tangible objects. Now, what does that mean? These are like records, like the metadata, the phone records I've been describing. But it is quite explicitly limited to things that you could get with a grand jury subpoena, those kinds of records. Now, it's important to know prosecutors issue grand jury subpoenas all the time and do not need any involvement of a court or anybody else,
7

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really, to do so.
Under this program, we need to get permission from the court to issue this ahead of time. So there is court involvement with the issuance of these orders, which is different from a grand jury subpoena. But the type of records, just documents, business records, things like that, are limited to those same types of records that we could get through a grand jury subpoena.
Now, the orders that we get last 90 days. So we have to re-up and renew these orders every 90 days in order to do this. Now, there are strict controls over what we can do under the order. And, again, that's the bigger, thicker order that hasn't been published. There's restrictions on who can access it in this order. It is stored in repositories at NSA that can only be accessed by a limited number of people. And the people who are allowed to access it have to have special and rigorous training about the standards under which that they can access it.
In order to access it, there needs to be a finding that there is responsible suspicion that you can articulate, that you can put into words, that the person whose phone records you want to query is involved with some sort of terrorist organizations. And they are defined. It's not everyone. They are limited in the statute. So there has to be independent evidence, aside from these phone records, that the person you're targeting is involved with a terrorist organization.
COLE: If that person is a United States person, a citizen, or a lawful permanent resident, you have to have something more than just their own speeches, their own readings, their own First Amendment-type activity. You have to have additional evidence beyond that that indicates that there is reasonable, articulable suspicion that these people are associated with specific terrorist organizations.
Now, one of the things to keep in mind is under the law, the Fourth Amendment does not apply to these records. There was a case quite a number of years ago by the Supreme Court that indicated that toll records, phone records like this, that don't include any content, are not covered by the Fourth Amendment because people don't have a reasonable expectation of privacy in who they called and when they called. That's something you show to the phone company. That's something you show to many, many people within the phone company on a regular basis.
Once those records are accessed under this process and reasonable articulable suspicion is found, that's found by specially trained people. It is reviewed by their supervisors. It is documented in writing ahead of time so that somebody can take a look at it. Any of the accessing that is done is done in an auditable fashion. There is a trail of it. So both the decision and the facts that support the accessing and the query is documented. The amount that was done, what was done -- all of that is documented and reviewed and audited on a fairly regular basis.
There are also minimization procedures that are put into place so
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that any of the information that is acquired has to be minimized. It has to be limited and its use is strictly limited. And all that is set out in the terms of the court order. And if any U.S. persons are involved, there are particular restrictions on how any information concerning a U.S. person can be used in this.
Now, there is extensive oversight and compliance that is done with these records and with this process. Every now and then, there may be a mistake -- a wrong phone number is hid or a person who shouldn't have been targeted gets targeted because there is a mistake in the phone record, something like that.
Each of those compliance incidents, if and when they occur, have to be reported to the FISA court immediately. And let me tell you, the FISA court pushes back on this. They want to find out why did this happen, what were the procedures and the mechanisms that allowed it to happen, and what have you done to fix it. So whenever we have a compliance incident, we report it to the court immediately and we report it to Congress. We report it to the Intelligence Committees of both houses and the Judiciary Committees of both houses.
We also provide the Intelligence and Judiciary Committees with any significant interpretations that the court makes of the 215 statute. If they make a ruling that is significant or issue an order that is significant in its interpretation, we provide those, as well as the applications we made for those orders, to the Intelligence Committee and to the Judiciary Committee.
And every 30 days, we are filing with the FISC, with the court, a report that describes how we implement this program. It includes a discussion of how we're applying the reasonable, articulable suspicion standard. It talks about the number of approved queries that we made against this database, the number of instances that the query results and contain a U.S. person information that was shared outside of NSA. And all of this goes to the court.
At least once every 90 days and sometimes more frequently, the Department of Justice, the Office of the Director of National Intelligence, and the NSA meet to assess NSA's compliance with all of these requirements that are contained in the court order. Separately, the Department of Justice meets with the inspector general for the National Security Agency and assesses NSA's compliance on a regular basis.
Finally, there is by statute reporting of certain information that goes to Congress in semiannual reports that we make on top of the periodic reports we make if there's a compliance incident. And those include information about the data that was required and how we are performing under this statute.
So once again keeping in mind, all of this is done with three branches of government involved: oversight and initiation by the executive branch with review by multiple agencies; statutes that are passed by Congress, oversight by Congress; and then oversight by the court.
Now, the 702 statute under the FISA Amendments Act is different.
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Under this, we do get content, but there's a big difference. You are only allowed under 702 to target for this purpose non-U.S. persons who are located outside of the United States. So if you have a U.S. permanent resident who's in Madrid, Spain, we can't target them under 702. Or if you have a non-U.S. person who's in Cleveland, Ohio, we cannot target them under 702. In order to target a person, they have to be neither a citizen nor a permanent U.S. resident, and they need to be outside of the United States while we're targeting them.
Now, there's prohibitions in this statute. For example, you can't reverse-target somebody. This is where you target somebody who's out of the United States, but really your goal is to capture conversations with somebody who is inside the United States. So you're trying to do indirectly what you couldn't do directly. That is explicitly prohibited by this statute. And if there is ever any indication that it's being done, because again, we report the use that we make of this statute to the court and to the Congress, that is seen. You also have to have a valid foreign intelligence purpose in order to do any of the targeting on this. So you have to make sure, as it was described, that it's being done for defined categories of weapons of mass destruction, foreign intelligence, things of that nature. These are all done pursuant to an application that is made by the attorney general and the director of national intelligence to the FISC. The FISC gives a certificate that allows this targeting to be done for a year period. It then has to be renewed at the end of that year in order for it to be re-upped.
Now, there's also there is a requirement that, again, there is reporting. You cannot under the terms of this statute have and collect any information on conversations that are wholly within the United States. So you're targeting someone outside the United States. If they make a call to inside the United States, that can be collected, but it's only because the target of that call outside the United States initiated that call and went there. If the calls are wholly within the United States, we cannot collect them.
If you're targeting a person who is outside of the United States and you find that they come into the United States, we have to stop the targeting right away. And if there's any lag and we find out that we collected information because we weren't aware that they were in the United States, we have to take that information, purge it from the systems, and not use it.
Now, there's a great deal of minimization procedures that are involved here, particularly concerning any of the acquisition of information that deals or comes from U.S. persons. As I said, only targeting people outside the United States who are not U.S. persons. But if we do acquire any information that relates to a U.S. person, under limited criteria only can we keep it.
If it has to do with foreign intelligence in that conversation or understanding foreign intelligence, or evidence of a crime or a threat of serious bodily injury, we can respond to that. Other than that, we have to get rid of it. We have to purge it, and we can't use it. If we inadvertently acquire any of it without meaning to, again, once that's discovered, we have to get rid of it. We have to purge it.
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The targeting decisions that are done are, again, documented ahead of time, reviewed by a supervisor before they're ever allowed to take place in the beginning. The Department of Justice and the Office of the Director of National Intelligence conduct on-site reviews of each targeting that is done. They look at them to determine and go through the audit to determine that they were done properly. This is done at least every 60 days and many times done more frequently than that.
In addition, if there's any compliance issue, it is immediately reported to the FISC. The FISC, again, pushes back: How did this happen? What are the procedures? What are the mechanisms you're using to fix this? What have you done to remedy it? If you acquired information you should (sic) have, have you gotten rid of it as you're required? And in addition, we're providing Congress with all of that information if we have compliance problems. We also report quarterly to the FISC concerning the compliance issues that have arisen during that quarter, on top of the immediate reports and what we've done to fix it and remedy the ones that we reported.
COLE: We also to Congress under this program, the Department of Justice and the Office of the Director of National Intelligence provide a semiannual report to the FISC and to Congress assessing all of our compliance with the targeting and minimization procedures that are contained in the court order. We also provide a semi-annual report to the FISC and Congress concerning the implementation of the program, what we've done and what we've found. And we also provide to Congress, documents that contain again, how we're dealing with the minimization procedures, any significant legal interpretations that the FISC makes concerning these statutes, as well as the orders and the applications that would relate to that.
And on top of all of this, annually the inspector general for NSA does an assessment, which he provides to Congress that reports on compliance, the number of disseminations under this program that relate to U.S. persons, the number of targets that were reasonably believed at the time to be outside the United States who were later determined to be in the United States, and when that was done. So in short, there is, from before, during and after the involvement of all three branches of the United States government, on a robust and fairly intimate way. I'd like to make one other observation, if I may, on this. We have tried to do this in as thorough, as protective, and as transparent a way as we possibly can, considering it is the gathering of intelligence information.
Countries and allies of ours all over the world collect intelligence. We all know this. And there have recently been studies about how transparent our system is in the United States, compared to many of our partners, many in the E.U. Countries like France, the U.K., Germany, who we work with regularly. And a report that was just recently issued in May of this year found that the FISA Amendments Act, the statute that we're talking about here, and I will quote, "Imposes at least at much, if not more, due process and oversight on foreign intelligence surveillance than other countries." And this
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includes E.U. countries. And it says under this, the U.S. is more transparent about its procedures, requires more due process protections in its investigations that involve national security, terrorism and foreign intelligence.
The balance is always one we seek to strive to -- to achieve. But I think as I've laid out to you, we have done everything we can to achieve it. And I think part of the proof of what we've done is this report that came out just last month, indicating our system is as good, and frankly better, than all of our allies and liaison partners. Thank you Mr. Chairman. ALEXANDER: Mr. Chairman, I will now switch to the value of the program, and talk about some statistics that we're putting together. As we stated, these programs are immensely valuable for protecting our nation, and security the security of our allies. In recent years, the information gathered from these programs provided the U.S. government with critical leads to help prevent over 50 potential terrorist events in more than 20 countries around the world. FAA 702 contributed in over 90 percent of these cases. At least 10 of these events included homeland-based threats. In the vast majority, business records, FISA reporting contributed as well. I would also point out that it is a great partnership with the Department of Homeland Security in those with a domestic nexus.
But the real lead for domestic events is the Federal Bureau of Investigation. It has been our honor and privilege to work with Director Mueller, and Deputy Directory Joyce who -- I'll turn it now over to Sean?
JOYCE: Thank you General. Thank you chairman and ranking member, and members of the committee for the opportunity to be here today. NSA and the FBI have a unique relationship, and one that has been invaluable since 9/11. And I just want to highlight a couple of the instances. In the fall of 2009, NSA using 702 authority intercepted an e-mail from a terrorist located in Pakistan. That individual was talking with an individual located inside the United States, talking about perfecting a recipe for explosives. Through legal process, that individual was identified as Najibullah Zazi. He was located in Denver, Colorado.
The FBI followed him to New York City. Later we executed search warrants with the New York Joint Terrorism Task Force and NYPD and found bomb-making components in backpacks. Zazi later confessed to a plot to bomb the New York subway system with backpacks. Also working with FISA business records, the NSA was able to provide a previously unknown number of one of the co-conspirators -- co-conspirators, Adis Medunjanin. This was the first core Al Qaida plot since 9/11 directed from Pakistan. Another example, NSA utilizing 702 authority was monitoring a known extremist in Yemen. This individual was in contact with an individual in the United States named Khalid Ouazzani. Ouazzani and other individuals that we identified through a FISA that the FBI applied for through the FISC were able to detect a nascent plotting to bomb the New York Stock Exchange.
Ouazzani had been providing information and support to this plot. The FBI disrupted and arrested these individuals. Also David Headley, a U.S. citizen living in Chicago. The FBI received intelligence
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regarding his possible involvement in the 2008 Mumbai attacks responsible for the killing of over 160 people. Also, NSA through 702 coverage of an Al Qaida affiliated terrorist found that Headley was working on a plot to bomb a Danish newspaper office that had published the cartoon depictions of the Prophet Mohammed. In fact, Headley later confessed to personally conducting surveillance of the Danish newspaper office. He, and his co-conspirators were convicted of this plot.
Lastly, the FBI had opened an investigation shortly after 9/11. We did not have enough information, nor did we find links to terrorism and then we shortly thereafter closed the investigation. However, the NSA using the business record FISA tipped us off that this individual had indirect contacts with a known terrorist overseas. We were able to reopen this investigation, identify additional individuals through a legal process, and were able to disrupt this terrorist activity. Thank you. Back to you, General?
ALEXANDER: So that's four cases total that we've put out publicly. What we're in the process of doing with the inter-agency is looking at over 50 cases that were classified, and will remain classified, that will be provided to both of the Intel Committees of the Senate and the House, to all of you. Those 50 cases right now have been looked at by the FBI, CIA and other partners within the community, and the National Counterterrorism Center is validating all of the points so that you know that what we've put in there is exactly right. I believe the numbers from those cases is something that we can publicly reveal, and all publicly talk about.
What we are concerned, as the chairman said, is to going into more detail on how we stopped some of these cases, as we are concerned it will give our adversaries a way to work around those, and attack us, or our allies. And that would be unacceptable. I have concerns that the intentional and irresponsible release of classified information about these programs will have a long, and irreversible impact on our nation's security, and that of our allies. This is significant. I want to emphasize that the Foreign Intelligence is the best -- the Foreign Intelligence Program that we're talking about, is the best counterterrorism tools that we have to go after these guys.
We can't lose those capabilities. One of the issues that has repeatedly come up, well how do you then protect civil liberties and privacy? Where is the oversight? What are you doing on that? We have the deputy director of the National Security Agency, Chris Inglis, will now talk about that and give you some specifics about what we do, and how we do it with these programs.
INGLIS: Thank you, General Alexander.
Chairman, Ranking Member, members of the committee, I'm pleased to be able to briefly describe the two programs as used by the National Security Agency with a specific focus on the internal controls and the oversight provided. Now first to remind these two complimentary, but distinct programs are focused on foreign intelligence. That's NSA's charge. The first program executed under Section 215 of the Patriot Act authorizes he collection of telephone metadata only. As you've heard before, the metadata is only the
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telephone numbers, and contact, the time and date of the call, and the duration of that call.
INGLIS: This authority does not, therefore, allow the government to listen in on anyone's telephone calls, even that of a terrorist. The information acquired under the court order from the telecommunications providers does not contain the content of any communications, what you are saying during the course of the conversation, the identities of the people who are talking, or any cell phone locational information. As you also know this program was specifically developed to allow the U.S. government to detect communications between terrorists operating outside the U.S., who are themselves communicating with potential operatives inside the U.S., a gap highlighted by the attacks of 9/11.
The controls on the use of this data at NSA are specific, rigorous, and designed to ensure focus on counter-terrorism. To that end, the metadata acquired and stored under this program may be queried only when there is a reasonable suspicion based on specific and documented facts that an identifier, like a telephone number, is associated with specific foreign terrorist organizations.
This determination is formally referred to as the "reasonable articulable suspicion standard." During all 2012, the 12 months of 2012, we at NSA approved fewer than 300 unique numbers, which were then used to initiate a query of this data set.
The second program, authorized under Section 702 of the Foreign Intelligence Surveillance Act, authorizes targeting only for communications of foreigners who are themselves not within the United States for foreign intelligence purposes, with the compelled assistance of an electronic communications service provider.
As I noted earlier, NSA being a foreign intelligence agency, foreign intelligence for us is information related to the capabilities, intentions, or activities of foreign governments, foreign organizations, foreign persons, or international terrorists. Let me be very clear. Section 702 cannot be and is not used to intentionally target any U.S. citizen or any U.S. person, any person known to be in the United States, a person outside the United States if the purpose is to acquire information from a person inside the United States. We may not do any of those things using this authority.
The program is also key in our counter-terrorism efforts, as you've heard. More than 90 percent of the information used to support the 50 disruptions mentioned earlier was gained from this particular authority. Again, if you want to target the content of a U.S. person anywhere in the world, you cannot use this authority. You must get a specific court warrant.
I'd like to now describe in further details some of the rigorous oversight for each of these programs. First, for the Section 215 program, also referred to as business records FISA, controls and (ph) determine how we manage and use the data are explicitly defined and formally approved by the Foreign Intelligence Surveillance Court.
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First, the metadata segregated from other data sets held by NSA and all queries against the data base are documented and audited. As defined in the orders of the court, only 20 analysts at NSA and their two managers, for a total of 22 people, are authorized to approve numbers that may be used to query this database. All of those individuals must be trained in the specific procedures and standards that pertain to the determination of what is meant by reasonable, articulable suspicion.
Every 30 days, NSA reports to the court the number of queries and disseminations made during that period. Every 90 days, the Department of Justice samples all queries made across the period and explicitly reviews the basis for every U.S. person, or every U.S. identity query made. Again, we do not know the names of the individuals of the queries we might make.
In addition, only seven senior officials at NSA may authorize the dissemination of any information we believe that might be attributable to a U.S. person. Again, we would not know the name. It would only be the telephone number. And that dissemination in this program would only be made to the Federal Bureau of Investigation at determining that the information is related to and necessary to understand a counter-terrorism initiative.
The Foreign Intelligence Surveillance court reviews the program every 90 days. The data that we hold must be destroyed within five years of its acquisition. NSA and the Department of Justice briefed oversight committees on the employment of the program. We provide written notification of all significant developments within the program. The Department of Justice provides oversight committees with all significant foreign intelligence surveillance courts' opinions regarding the program.
Turning my attention to the 702 program, the Foreign Intelligence Surveillance Court annually reviews certification, which are required by law, that are jointly submitted by the attorney general and the director of national intelligence. These certifications define the categories of foreign actors that may be appropriately targeted and, by law, must include specific targeting and minimization procedures that the attorney general and the court both agree are consistent with the law and the Fourth Amendment of the Constitution. These procedures require that a communication of or concerning a U.S. person must be promptly destroyed after it's identified, either as clearly not relevant to the authorized purpose, or as not containing evidence of a crime.
The statute further requires a number of reports to be provided to both the court and the oversight committees. A semi-annual assessment by the Department of Justice and the Office of the Director of National Intelligence, regard in (ph) compliance with the targeting and minimization procedures an annual I.G. assessment that reports compliance with procedural requirements laid out within the order -the number of disseminations that may refer to U.S. persons, the number of targets later found to be in the United States, and whether the communications of such targets were ever reviewed.
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An annual director of NSA report is also required to describe the compliance efforts taken by NSA and address the number of U.S. person identities disseminated in NSA reporting. Finally, Foreign Intelligence Surveillance Court procedures require NSA to inform the court of any novel issues of law or technology relevant to an authorized activity and any non-compliance to include the Executive Branch's plan for remedying that same event. In addition to the procedures I've just described, the Department of Justice conducts onsite reviews at NSA to sample NSA's 702 targeting and tasking decisions every 60 days.
And, finally, I would conclude with my section to say that in July of 2012, the Senate Select Committee on Intelligence, in a report reviewing the progress over the four years of the law's life at that point in time, said that across the four-year history of the program, the committee had not identified a single willful effort by the Executive Branch to violate the law.
ALEXANDER: So to wrap up, Chairman, first I'd like to just hit on -- when we say seven officials, that's seven positions that -- at NSA can disseminate U.S. persons data. Today, there are 10 people in those positions. One of those is our -- SIGINT operations officer. Every one of those have to be -- credentialed. Chris and I are two of those officials.
I do want to hit a couple of key points. First, with our industry partners, under the 702 program, the U.S. government does not unilaterally obtain information from the servers of U.S. companies. Rather, the U.S. companies are compelled to provide these records by U.S. law, using methods that are in strict compliance with that law.
Further, as the deputy attorney general noted, virtually all countries have lawful intercept programs under which they compel communication providers to share data about individuals they believe represent a threat to their societies. Communication providers are required to comply with those programs in the countries in which they operate. The United States is not unique in this capability.
The U.S., however, operates its program under the strict oversight and compliance regime that was noted above with careful oversights by the courts, Congress, and the administration. In practice, U.S. companies have put energy and focus and commitment into consistently protecting the privacy of their customers around the world, while meeting their obligations under the laws of U.S. and other countries in which they operate. And I believe they take those seriously.
Our third and final point, as Americans, we value our privacy and our liberty -- our civil liberties. Americans -- as Americans, we also value our security and our safety. In the 12 years since the attacks on September 11th, we have lived in relative safety and security as a nation. That security is a direct result of the intelligence community's quiet efforts to better connect the dots and learn from the mistakes that permitted those attacks to occur on 9/11.
In those 12 years, we have thought long and hard about oversight
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and compliance and how we minimize the impact on our fellow citizens' privacy. We have created and implemented and continue to monitor -monitor a comprehensive mission compliance program inside NSA. This program, which was developed based on industry best practices and compliance works to keep operations and technology aligned with NSA's externally approved procedures.
Outside of NSA, the officer of the -- the Office of the Director of National Intelligence, Department of Justice, and the Foreign Intelligence Surveillance Court provide robust oversight as well as this committee. I do believe we have that balance right.
In summary, these programs are critical to the intelligence community's ability to protect our nation and our allies' security. They assist the intelligence community's efforts to connect the dot. Second, these programs are limited, focused, and subject to rigorous oversight. They have distinct purposes and oversight mechanisms. Third, the disciplined operation of these programs protects the privacy and civil liberties of the American people.
As you noted, Chairman, the people of NSA take these responsibilities to heart. They protect our nation and our allies as part of a bigger team. And they protect our civil liberties and privacy. It has been an honor and privilege to lead these great Americans. I think Bob Litt has a couple of comments to make, and then we'll turn it back to you, Chairman.
LITT: Yes, Mr. Chairman, Mr. Ranking Member, members of the committee, I just want to speak very briefly and address a couple of additional misconceptions that the public has been fed about some of these programs.
The first is that collection under Section 702 of the FISA Amendments Act is somehow a loosening of traditional standards because it doesn't require individualized warrants. And, in fact, exactly the opposite is the case. The kind of collection that is done under Section 702, which is collecting foreign intelligence information for foreigners outside of the United States historically was done by the executive branch under its own authority without any kind of supervision whatsoever.
And as a result of the FISA Amendments Act, this has now been brought under a judicial process with the kind of restrictions and limitations that have been described by the other witnesses here. So, in fact, this is a tightening of standards from what they were before.
The second misconception is that the FISA court is a rubber stamp for the executive branch. And people point to the fact that the FISA court ultimately approves almost every application that the government submits to it.
But this does not recognize the actual process that we go through with the FISA court. The FISA court is judges, federal district judges appointed from around the country who take this on in addition to their other burdens. They're all widely respected and experienced judges. And they have a full-time professional staff that works only
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on FISA matters.
When we prepare an application for -- for a FISA, whether it's under one of these programs or a traditional FISA, we first submit to the court what's called a "read copy," which the court staff will review and comment on.
And if -- and they will almost invariably come back with questions, concerns, problems that they see. And there is an iterative process back and forth between the government and the FISA court to take care of those concerns so that at the end of the day, we're confident that we're presenting something that the FISA court will approve. That is hardly a rubber stamp. It's rather extensive and serious judicial oversight of this process.
The third point, the third misconception that I want to make is that the process we have here is one that simply relies on trust for individual analysts or individual people at NSA to obey the rules.
And I just -- I -- I won't go into detail as to the oversight, because I think it's been adequately described by the others. But the point is, there is a multilayered level of oversight, first within NSA, then involving my agency, the Office of the Director of National Intelligence and the Department of Justice and ultimately involving the FISA court and the Congress to ensure that these rules are complied with.
And the last point that I'd -- the last misconception I want to address is that this information shouldn't have been classified and it was classified only to -- to conceal it from the American people and that the leaks of this information are not damaging.
And, Mr. Chairman and Mr. Ranking Member, you both made this point. These are, as General Alexander said, extremely important collection programs to protect us not only from terrorists, but from other threats to our national security, a wide variety.
And they have produced a huge amount of valuable intelligence over the years. We are now faced with a situation that because this information has been made public, we run the risk of losing these collection capabilities. We're not gonna know for many months whether these leaks in fact have caused us to lose these capabilities. But if -- if they -- if they do have that effect, there is no doubt that they will cause our national security to be affected.
Thank you, Mr. Chairman.
ROGERS: Thank you all, very much. I appreciate that. I just have a couple of quick questions. I know members have lots of questions here and I want to get to them.
Mr. Inglis, just for the record, you -- can you describe quickly your civilian role as the deputy? You serve as that role in a civilian capacity. Is that correct?
INGLIS: Yes, sir. Across the history of NSA, there has always been a senior serving military officer, that's the director of the
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National Security Agency, and at the same time a senior serving civilian authority, and that would be the deputy director, and that's my role.
ROGERS: All right, and -- but you have also had military service. Is that correct?
INGLIS: Sir, I did. I served for a period of 13 years on active duty in the United States Air Force, and then transitioned to the National Security Agency.
ROGERS: So you rose to the rank of -- of?
INGLIS: I was brigadier general in the Air National Guard. As in all things, it's complicated.
(CROSSTALK) ROGERS: Yeah. But I just wanted to get on the record that you do have -- you have military service as well as your civilian service.
(CROSSTALK)
INGLIS: I do, sir. As I transitioned from the active Air Force to the National Security Agency, I retained my affiliation with the reserve components and was pleased and proud to be able to serve in the Air National Guard for another 20 years.
ROGERS: Great. Well, thank you for that service.
You mentioned in "queries of less than 300," what does -- what does that mean?
INGLIS: In each of those cases, sir, there was a determination made an analyst at NSA that there was a reasonable, describable, articulable suspicion that an number of interest, a telephone number of interest, might be associated with a connected plot of a specific terrorist plot overseas, and therefore a desire to see whether that plot had a connection into the United States.
The process they go through then is as described, one where they make a -- a...
(CROSSTALK)
ROGERS: Well, describe the inquiry -- it's not put -- you don't put in a name?
INGLIS: We do not, sir.
ROGERS: So you put in...
(CROSSTALK)
INGLIS: The only thing we get from the providers are numbers. The only thing we could possibly then bounce against that data set are numbers, themselves.
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ROGERS: Right. So there are no names and no addresses affiliated with these phone numbers.
INGLIS: No, there are not, sir.
ROGERS: OK. Just phone numbers.
INGLIS: That's right, sir.
ROGERS: OK. Go ahead.
INGLIS: So an analyst would then try to determine whether there was a describable, it must be written, documentation that would say that there is a suspicion that this is attributed to a foreign terrorist plot and there might be a U.S. nexus. After having made that determination, they would make a further check to determine whether it is possible to discern that this might be associated with a U.S. person. The way you would infer that is you might look at the area code and say that area code could likely be in the United States. We all know that within this area, that if you see an area code that begins with 301, that would be Maryland. That would be your only insight into whether or not this might be attributable to a U.S. person.
If that were to be the case, then the case for a reasonable, articulable suspicious must get a further review to ensure that this is not a situation where somebody is merely expressing their First Amendment rights.
If that's all that was, if they were merely expressing their First Amendment rights, however objectionable any person might find that, that is not a basis to query the database.
If it gets through those checks, then at that point, it must be approved by one of those 20 plus two individuals -- 20 analysts, specially-trained analysts, or their two managers -- such that it might then be applied as a query against the data set. Again, the query itself would just be a number, and the query against the data set would then determine whether that number exists in the database. That's how that query is formed. And, again...
(CROSSTALK)
ROGERS: So the response is not a name; it's an address. It's a phone number.
INGLIS: It cannot be. If it were to be a name or if it were to be an address, there would be no possibility that the database would return any meaningful results, since none of that information is in the database.
ROGERS: Just a phone number pops back up.
INGLIS: Just a phone number. What comes back if you query the database are phone numbers that were in contact, if there are any, with that number. And, again, the other information in that database would indicate when that call occurred and what the duration of that
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call were -- were to be.
ROGERS: Again, I just want to make very clear, there are no names and no addresses in that database.
INGLIS: There are not, sir.
ROGERS: OK. And why only less than 300 queries of phone numbers into that database?
INGLIS: Sir, only less than 300 numbers were actually approved for query against that database. Those might have been applied multiple times, and therefore, there might be a number greater than that of actual queries against the database. But the reason there are so few selectors approved is that the court has determined that there is a very narrow purpose for this -this use. It can't be to prosecute a greater understanding of a simply domestic plot. It cannot be used to do anything other than terrorism. And so, therefore, there must be very well-defined describable written determinations that this is -- is a suspicion of a connection between a foreign plot and a domestic nexus. If it doesn't meet those standards...
(CROSSTALK)
ROGERS: Are those queries reported to the court?
INGLIS: Those queries are all reported to the Department of Justice, reviewed by the Department of Justice. The number of those queries are reported to the court. And any time that there is a dissemination associated with a U.S. person...
(CROSSTALK)
ROGERS: Is there a court-approved process in order to make that query into that information of only phone numbers?
INGLIS: Yes, sir. The court explicitly approves the process by which those determinations were made, and the Department of Justice provides a rich oversight auditing of that capability.
ROGERS: Great. Thank you.
General Alexander, is the NSA on private company's servers as defined under these two programs?
ALEXANDER: We are not.
ROGERS: Is -- is the NSA have the ability to listen to Americans' phone calls or read their e-mails under these two programs?
ALEXANDER: No, we do not have that authority.
ROGERS: Does the technology exist at the NSA to flip a switch by some analyst to listen to Americans' phone calls or read their emails?
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ALEXANDER: No.
ROGERS: So the technology does not exist for any individual or group of individuals at the NSA to flip a switch to listen to Americans' phone calls or read their e-mails?
ALEXANDER: That is correct.
ROGERS: When -- Mr. Joyce, if you could help us understand that, if you get a piece of a number, there's been some public discussion that, gosh, there's just not a lot of value in what you might get from a program like this that has this many levels of oversight. Can you talk about how that might work into an investigation to help you prevent a terrorist attack in the United States?
JOYCE: Investigating terrorism is not an exact science. It's like a mosaic. And we try to take these disparate pieces and bring them together to form a picture. There are many different pieces of intelligence. We have assets. We have physical surveillance. We have electronic surveillance through a legal process; phone records through additional legal process; financial records.
Also, these programs that we're talking about here today, they're all valuable pieces to bring that mosaic together and figure out how these individuals are plotting to attack the United States here or whether it's U.S. interests overseas.
So, every dot, as General Alexander mentioned, we hear the cliche frequently after 9/11 about connecting the dots. I can tell you as a team, and with the committee and with the American public, we come together to put all those dots together to form that picture to allow us to disrupt these activities.
ROGERS: Thank you.
Given the large number of questions by members, I'm going to move along.
Mr. Ruppersberger, for a brief...
RUPPERSBERGER: Firstly, I want to thank all the witnesses for your presentation, especially Mr. Cole -- a very good presentation. I think you explained the law in a very succinct way.
You know, it's unfortunate sometimes when we have incidents like this that a lot of negative or false information gets out. I think, though, that those of us who work in this field, in the intelligence field every day, know what the facts are and we're trying to now present those facts through this panel. That's important.
But I would say that I weren't in this field and if I were to listen to the media accounts of what occurred in the beginning, I would be concerned, too. So, this is very important that we get the message out to the American public that what we do is legal and we're doing it to protect our national security from attacks from terrorists.
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Now, there are -- one area that, Mr. Litt, you -- you addressed this -- but I think it's important to just reemphasize the FISA court. You know, again, it's unfortunate, when people disagree with you, they attack you. They say things that aren't true. We know that these are federal judges in the FISA court. They have integrity, and that they will not approve anything that they feel is wrong. We have 90-day periods where the court looks at this issue.
I want to ask you, though, General Alexander, do you feel in any way that the FISA court is a rubber-stamp based on the process? Our forefathers created a great system of government, and that's checks and balances. And that's what we are. That's what we do in this country to follow our Constitution. It's unfortunate that these federal judges are being attacked.
ALEXANDER: I do not. I believe, as you have stated, the federal judges on that court are superb. Our nation would be proud of what they do and the way they go back and forth to make sure we do this exactly right.
And every time we make a mistake, how they work with us to make sure it is done correctly to protect our civil liberties and privacy and go through the court process. They have been extremely professional. There is, from my perspective, no rubber-stamp.
It's kind of interesting. It's like saying you just ran a 26mile marathon; somebody said, "Well, that was just a jog." Every time we work with the court, the details and the specifics of that that go from us up through the FBI, through the Department of Justice and through the court on each one of those orders that we go to the court. There is tremendous oversight, compliance and work. And I think the court has done a superb job.
More importantly, if I could, what we worked hard to do is to bring all of these -- all these under court supervision for just this reason. I mean, we've done the right thing, I think, for our country here.
Thank you.
RUPPERSBERGER: Thank you for that answer.
The second area I want to get into, General Alexander, the public are saying, "Well, how did this happen?" We have -- we have rules. We have regulations. We have individuals that work in intelligence go through being -- persistently being classified. And yet here we have a technical person who had lost some jobs; had a background that wouldn't always would be considered the best.
We have to learn from mistakes how they've occurred. What system are you or the director of national intelligence of the administration putting into effect now to make sure what happened in this situation, that if another person were to -- to turn against his or her country, that we would have an alarm system that would not put us in this position right now?
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ALEXANDER: So, this is a very difficult question, especially when that person is a system administrator and they get great access...
RUPPERSBERGER: Why don't you say what a system administrator is?
ALEXANDER: Well, a system administrator is one that actually helps operate, run, set the conditions, the auditing and stuff on a system or a portion of the network. When one of those persons misuses their authorities, this is a huge problem.
So working with the director of national intelligence, what we are doing is working to come up with a two-person rule and oversight for those, and ensure that we have a way of blocking people from taking information out of our system. This is work in progress. We're working with the FBI on the investigation. We don't have all the facts yet. We've got to get those. And as we're getting those facts, we are working through our system. Director Clapper has asked us to do that and providing that feedback back to the rest of the community.
RUPPERSBERGER: OK. Thank you.
I yield back.
ROGERS: (OFF-MIKE)
THORNBERRY: Thank you, Mr. Chairman.
And thank you all for being here, and for making some additional information available to the public. I know it's frustrating for you, as it is for us, to have these targeted narrow leaks and not be able to talk about the bigger picture.
General Alexander, you mentioned that you're going to send us tomorrow 50 cases that have been stopped because of these programs, basically. Four have been made public to this point. And I think there are two new ones that you are talking about today. But I would invite you to explain to us both of those two new cases -- Mowlin (ph) and the Operation WiFi case. And one of them starts with a 215; one of them starts with a 702.
And so I think it's important for you to provide the information about how these programs stopped those terrorist attacks.
ALEXANDER: OK. I'm going to defer this, because the actual guys who actually do all the work and (inaudible) is the FBI, and get it exactly right. I'm going to have Sean do that. Go ahead, Sean.
JOYCE: So, Congressman, as I mentioned previously, NSA on the Op WiFi, which is Khalid Ouazzani out of Kansas City. That was the example that I referred to earlier. NSA, utilizing 702 authority, identified an extremist located in Yemen. This extremist located in Yemen was talking with an individual located inside the United States in Kansas City, Missouri. That individual was identified as Khalid Ouazzani.
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The FBI immediately served legal process to fully identify Ouazzani. We went up on electronic surveillance and identified his co-conspirators. And this was the plot that was in the very initial stages of plotting to bomb the New York Stock Exchange. We were able to disrupt the plot. We were able to lure some individuals to the United States. And we were able to effect their arrest. And they were convicted for this terrorist activity.
THORNBERRY: OK. Just so I -- on that plot, it was under the 702, which is targeted against foreigners, that some communication from this person in Yemen back to the United States was picked up. And then they turned it over to you at the FBI to serve legal process on this person in the United States.
JOYCE: That is absolutely correct. And if you recall, under 702, it has to be a non-U.S. person outside the United States, and then also one of the criteria is linked to terrorism.
THORNBERRY: OK. Would you say that this -- their intention to blow up the New York Stock Exchange was a serious plot? Or is this something that they kind of dreamed about, you know, talking among their buddies?
JOYCE: I think the jury considered it serious, since they were all convicted.
THORNBERRY: OK. And -- and what about the other plot? October, 2007, that started I think with a 215?
JOYCE: I refer to that plot. It was an investigation after 9/11 that the FBI conducted. We conducted that investigation and did not find any connection to terrorist activity. Several years later, under the 215 business record provision, the NSA provided us a telephone number only, in San Diego, that had indirect contact with an extremist outside the United States.
We served legal process to identify who was the subscriber to this telephone number. We identified that individual. We were able to, under further investigation and electronic surveillance that we applied specifically for this U.S. person with the FISA court, we were able to identify co-conspirators and we were able to disrupt this terrorist activity.
THORNBERRY: I'm sorry. Repeat for me again what they were plotting to do.
JOYCE: He as actually -- he was providing financial support to an overseas terrorist group that was a designated terrorist group by the United States.
THORNBERRY: But there was some connection to suicide bombings that they were talking about, correct?
JOYCE: Not in the example that I'm citing right here.
THORNBERRY: Oh, I'm sorry, the group in Somalia to which he was
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financing, that's what they -- that's what they do do in Somalia, correct?
JOYCE: That is correct, and as you know, as part of our classified hearings regarding the American presence in -- in that area of the world.
THORNBERRY: OK. OK, thank you.
Chairman (OFF-MIKE)
ALEXANDER: If I could, Congressman, just -- just hit a couple key points. It's over 50 cases. And the reason I'm not giving a specific number is we want the rest of the community to actually beef those up and make sure that (inaudible) we have there is exactly right. I'd give you the number 50X. But if somebody says, "Well, not this one." Actually, what we're finding out is there are more. They said, "You missed these three or four." So those are being added to the packet.
On the top of that packet we'll have a summary of all of these, the listing of those. I believe those numbers are things that we can make public, that you can use, that we can use. And we'll try to give you the numbers that apply to Europe, as well, as well as those that had a nexus in the United States.
The issue on terms of releasing more on the specific overseas cases is (inaudible) our -- it's our concern that in some of those -now, going into further details of exactly what we did and how we did it may prevent us from disrupting a future plot.
So that's something that work in progress. Our intent is to get that to the committee tomorrow for both -- both Intel Committees for the Senate and House.
THORNBERRY: Great. Thank you.
ROGERS: Mr. Thompson?
THOMPSON: Thank you, Mr. Chairman.
Thank you all very much for being here and for your testimony and for your service to our country.
Mr. Litt, before going to a hearing, does or has the FISA court ever rejected a case that's been brought before it?
LITT: I believe the answer to that is yes, but I would defer that to the deputy attorney general.
COLE: It has happened. It's not often, but it does happen.
THOMPSON: Thank you.
Mr. Cole, what kinds of records comprise the data collected under the business records provision?
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COLE: There's a couple of different kinds. The shorthand -- and it's required under the statute -- is the kinds of records you could get with a grand jury subpoena. These are business records that already exist. It could be a contract. It could be something like that.
In this instance that we're talking about for this program, these are telephone records. And it's just like your telephone bill. It'll show a number called, the date the number was called, how long the call occurred; a number that called back to you. That's all it is, not even identifying who the people are that's involved.
THOMPSON: Have you previously collected anything else under that authority?
COLE: Under the 215 authority?
THOMPSON: Correct.
COLE: I'm not sure beyond the 215 and the 702 that -- answering about what we have and haven't collected has been declassified to be talked about.
THOMPSON: OK.
It was said that there's been cases where there was data inadvertently or mistakenly collected and then subsequently destroyed. Is that...
COLE: That's correct.
THOMPSON: And -- and there actually has been data that has been inadvertently collected and it was destroyed, nothing else was done with it?
COLE: That's correct. The -- this is a very strict process that we go through in that regard. You can get a wrong digit on a phone number and you collect the wrong number, something like that. And when that's discovered, that's taken care of in that way.
THOMPSON: And who does the checking? Who -- who determines if something has been inadvertently collected and then decides that it's -- needs to be destroyed?
COLE: Well, I'll -- I'll refer over to NSA in the first instance, because they do a very robust and vigorous check internally themselves. But then as an after-the-fact, the Department of Justice and ODNI and the inspector general for NSA also do audits and make sure that we understand all the uses. And if there's any compliance problems that they're identified, that they're given to the court, they're given to the Congress, and they're fixed.
THOMPSON: I -- I don't think I need anything more than -- than that.
General Alexander, can you tell us what Snowden meant during this chat thing that he did when he said that NSA provides Congress with,
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and I quote, "a special immunity to its surveillance"?
ALEXANDER: I have no idea.
THOMPSON: Anybody else?
ALEXANDER: I'm not sure I understand the context of the special immunity.
THOMPSON: I -- I don't either. That's why...
(CROSSTALK)
ALEXANDER: We treat you with special respect.
(LAUGHTER)
THOMPSON: He said with a "special immunity to its surveillance."
ALEXANDER: I -- I have no idea. I think it may be in terms of disseminating any information, let's say, not in this program but in any program that we have, if we have to disseminate U.S. persons data or a threat to a U.S. member of Congress, we're not allowed to say the name unless it's valuable to one of the investigations or (inaudible).
So we can't just put out names and stuff in our things (ph). So part of the minimization procedures protects the who.
Did you want to add to that?
INGLIS (?): No, I would simply have said that your status as U.S. persons gives you a special status, as we've described throughout this hearing. THOMPSON: If you -- if that does surface and you do figure that out you'll get that information to us?
Also the president kind of suggested, I guess, in his television interview the other night that the New York subway bomber could not have been or would not have been caught without PRISM. Is that true?
JOYCE: Yes, that is accurate. Without the 702 tool we would not have identified Najibullah Zazi.
THOMPSON: Thank you. I have no further question.
I yield back the balance of my time.
ROGERS: Mr. Miller?
MILLER: Thank you, Mr. Chairman.
General Alexander, which agency actually presents the package to the FISA court for them to make their decision?
ALEXANDER: Well, it's actually -- business records, FISA, it's the FBI (inaudible).
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Go ahead.
JOYCE: The FBI is part of the process. It then goes over to the Department of Justice. And they are the ones -- if the DAG wants to comment on that.
COLE: The formal aspect of the statute allows the director of the FBI to make an application to the court. The Justice Department handles that process. We make the -- put all the paperwork together. And it must be signed off on before it goes to the court by either the attorney general, myself, or if we have a confirmed assistant attorney general in charge of the National Security Division, that person is authorized. But it has to be one of the three of us to sign it before it goes.
MILLER: The court is a single judge?
COLE: The judges sit kind of in -- in rotation in the court presiding over it. These are all Article 3 judges. They have lifetime appointments. They have their districts that they deal with, and they are selected by the chief justice to sit on the FISA court for a period of time. And so they will rotate through and be the duty judges that are required for this.
MILLER: I guess the crux of my question is, would there be a way that if you did not get the answer that you wanted from a certain judge could you go to another FISA court judge and ask for another opinion?
COLE: I -- I think that would be very, very difficult to do, because the staff at the FISA court does a great deal of the prep work and they're gonna recognize when they've thrown something back that if you're coming back and you haven't made any changes to correct the deficiencies that caused them to throw it back, my guess is they'll throw it back again.
MILLER: And I think one of the things that a lot of people don't understand -- and it was alluded to by Mr. Litt; and I think, Mr. Cole, you have also discussed it -- and that's the read-ahead document that the court gets, the opportunity. A lot of focus has been made on the fact that as my colleague, Mr. Thompson said, court's a rubberstamp. But they do have an opportunity to review the documents prior to rendering a decision.
COLE: They do. And it's by no means as a rubber stamp. They push back a lot. And when they see something -- these are very thick applications that have a lot in them. And when they see anything that raises an issue, they will push back and say, "We need more information about this area. We need more information about that legal issue. We need more information about your facts in certain areas.'
This is by no means a rubberstamp. There is an enormous amount of work. And they make sure -- they're the ones to make sure that the privacy and the civil liberty interests of United States' citizens are honored. They're that bulwark in this process. So they -- they have to be satisfied.
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MILLER: There's been some discussion this morning on the inadvertent violation of a court order where data has been collected and then destroyed. But has there ever been any disciplinary action taken on somebody who inadvertently violated an order?
COLE: Not that I'm aware of. And I think one of the statistics that Mr. Inglis had included in his comment was that in the history of this, there has never been found an intentional violation of any of the provisions of the court order, or any of the collection in that regard. So the -- the nature of the kinds of anomalies that existed were technical errors, were typographical errors, things of that nature as opposed to anything that was remotely intentional. So there would be in those instances, no reason for discipline. There may be reason to make sure our systems are fixed so that a technical violation, or technical error doesn't exist again because we've identified it. But nothing intentional.
LITT: Can I just add one thing to that point? An important part of the oversight process that the Department of Justice, and the ODNI engage in is when compliance problems are identified, and the vast majority of them are self-identified by NSA, but when a compliance issue is identified, we go and look at it and say, OK are there changes that need to be made in the system so that this kind of mistake doesn't happen again? It's a constantly improving process to prevent problems from occurring.
MILLER: Thank you. I yield back.
ROGERS: Ms. Schakowsky?
SCHAKOWSKY: Thank you Mr. Chairman. General Alexander, do you feel that this open hearing today jeopardizes in any way our national security?
ALEXANDER: I don't think the sharing itself jeopardizes it. I think the damage was done in the release of the information already. I think today what we have the opportunity is (sic) so where it makes sense, provide additional information on the oversight, the compliance and some of the -- the statistics, without jeopardizing it. So to answer your question, no. We're being very careful to do that, and I appreciate what the committee has done on that.
SCHAKOWSKY: How many people were in the same position as Snowden was, as a systems manager to have access to this information that could be damaging if released? ALEXANDER: Well, there are system administrators throughout NSA and in our -- all our complexes around the world. And there is on the order of a thousand system administrators, people who actually run the networks that have, in certain sections, that -- that level of authority and ability to interface with...
SCHAKOWSKY: How many of those are outside contractors, rather than...
ALEXANDER: The majority are contractors. As you may know, as
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you may recall, about 12-13 years ago as we tried to downsize our government work force, we pushed more of our information technology workforce or system administrators to the contract arena. That's consistent across the intelligence community.
SCHAKOWSKY: I would -- I would argue that this conversation that we're having now could have -- could have happened unlike what you said Mr. Litt. And perhaps we disagree also, General Alexander, that the erosion of trust, the misconceptions and the misunderstandings that resulted and why would assume that when there's 1,000 -- are there any more than 1,000 by the way?
ALEXANDER: Well, we're actually counting all of those positions. I'll get you an accurate number.
SCHAKOWSKY: That -- that some of this information would not have become public. And that the effort that has to convince the American public of the necessity of this program, I think would suggest that we would have been better off at having a discussion of vigorous oversight, the legal framework, et cetera up front, and how this could prevent perhaps another 9/11, and in fact, 50 or so, attacks. Let me ask you this, Mr. Cole, you know you -- you were talking about transparency, and you were saying that -- essentially that while the Verizon phone records order looked bad on its face, that there are other FISA court orders that talk in more depth about the legal rationale, about -- about what we're -- what we're doing.
So, will you release those court opinions with the necessary redactions, of course? And if not, why?
COLE: Well, I'm going to refer that over to Mr. Litt because the classifying authority on that would be DNI.
LITT: As you may know, we have been working for some time on trying to declassify opinions of the FISA court. It's been a very difficult task, because like most legal opinions, you have facts intermingled with legal discussion. And the facts frequently involve classified information, sensitive sources and methods. And what we've been discovering is that when you remove all of the information that needs to be classified, you're left with something that looks like Swiss cheese, and is not really very comprehensible. Having said that, I think as -- as General Alexander said, there's information out in the public domain now. There's -- the director of national intelligence declassified certain information about these programs last week. And as a result of that, we are going back, taking another look at these opinions to see whether, in light of that declassification, there's now -- we can make a more comprehensible release of the opinion. So the answer to that is, we are looking at that and -- and frankly we would like to release it to the public domain, as much of this as we can, without compromising national security.
SCHAKOWSKY: I think -- General Alexander, so what other types of -- of records are collected under this Section 215? Can -- can you talk about that at all?
ALEXANDER: Yeah, for NSA the only -- the only records that are
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collected under business records 215 is this telephony data. That's all.
SCHAKOWSKY: And is there authorization to collect more?
ALEXANDER: Under 215 for us? No, this is the only -- that we do. Now it gets into other authorities, but it's not ours. And I don't now if the -- I'll pass that to the attorney general because you're asking me now outside of NSA.
COLE: 215 is generally -- is a general provision that allows the acquisition of business records if its relevant to a national security investigation. So that showing has to be made to the court to allow that subpoena to issue that there is a relevance, and a connection. And that can be any -- any number of different kinds of records that a business might maintain; customer records, purchase orders, things of that nature. Somebody buys materials that they could buy an explosive out of, you could go to a company that sells those and get records of the purchase. Things of that nature.
SCHAKOWSKY: What about e-mails?
COLE: E-mails would not be covered by business records in that regard. You would have to -- under the Electronic Communications Privacy Act, you get specific court authorization for e-mails, that's stored content. If you're going to be looking at them in real time while they're going, you're going to have a separate FISA court order that would allow you to do that. It wouldn't be covered by the business records.
SCHAKOWSKY: Thank you Mr. Chairman.
ALEXANDER: Could I just make sure -- one clear part on the system administrator versus -- so what you get access to is helping to run the network, and the web servers that are on that network that are publicly available. To get to any data, like the business records 215 data that we're talking about, that's in an exceptionally controlled area. You would have to have specific certificates to get into that. I am not aware that he had -- he, Snowden, had any access to that. And on the reasonable articulable suspicion numbers and on what we're seeing there, I don't know of any inaccurate RAS numbers that have occurred since 2009.
There are rigorous controls that we have from a technical perspective that once the numbers can -- is considered RAS-approved, that you put that number in. You can't make a mistake because the system helps correct that now. So that -- that is a technical control that we have put in there.
SCHAKOWSKY: Thank you. I yield back.
CONAWAY: Well, thank you gentlemen. General Alexander thank you for your long service. Mr. Cole and Mr. Inglis went through -through a very extensive array of the oversight and internal controls that are associated with -- with what's going on. In a business environment, Sarbanes-Oxley requires that companies go through their entire system to make sure that, not only do the details trees work,
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but that the forest works as well. Is there any one at -- in the vast array of what you guys are doing that steps back and says, all right, we're -- the goal is to protect privacy and our civil liberties and we're doing the very best we can.
Is there a -- an internal control audit, so to speak that looks at the entire system that says, we've got the waterfront covered? And we're doing what we need to do?
COLE: I'll start. I mean there are these periodic reviews that I've described that audit everything that is done under both of these programs by both NSA and the Department of Justice, and the Office of the Director of National Intelligence, and we report to the court, and we report to Congress. So all of that is done looking at the whole program at the same time.
CONAWAY: I guess I -- Mr. Cole I'm looking at the -- the program of that. I understand that those pieces work really well, and that that's their design to -- to go at it and create the -- that kind of audit process. But is there an overall look at -- at everything that is done to say, we've got it all covered? Or -- and if we don't, and there are suggestions that we need to improve it, where do those suggestions get vetted? And have we had suggestions for improvement that we said, no, we don't need to do that?
LITT: Mr. Conaway if I might speak on that, there are at least two levels at which that takes place.
One is by statute within the Office of the Director of National Intelligence, there is -- there is a civil liberties protection officer -- his name is Alex Joel, who's an incredibly capable person whose job it is to take exactly that kind of look at our programs and make suggestions for the protection of civil liberties.
Outside of -- of the intelligence community, there...
(CROSSTALK)
CONAWAY: And that person would have the requisite clearances to know all the details?
(CROSSTALK)
LITT: Absolutely. He is -- he is, in fact, part of this audit process as well, his office is.
The second thing is that -- is that outside of the intelligence community, the president's Civil Liberties Oversight Board, which has -- has five confirmed members is also charged with evaluating the impact of our counterterrorism programs on privacy and civil liberties.
They also have full clearances. They have the ability to get full visibility into this program. In fact, they have recently been briefed on these programs, and I know they are, in fact, looking at them to make exactly that kind of assessment.
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(CROSSTALK)
CONAWAY: And who -- who do they report to? Is that report public?
LITT: It's the president's board. I suspect that to the extent they're making a classified report, it would not be public. To the extent that they can make an unclassified report, it's up to them whether or not it becomes public.
CONAWAY: Several of you mentioned the term "minimization" and then also five-year destruction, rolling five-year window on the -- on the business record issues. You've used the word "purge," "get rid of," "destroy." In an electronic setting, can you help us understand exactly what that means? I understand when I shred a piece of paper into the thousand-and-one pieces, that's one thing. But given the number of times you back up data and all the other, can a citizen feel like that once the minimization worked, that this electronically, we have in fact deleted all these things that are -- that we're supposed to delete?
INGLIS: So I'll start at that. Yes, sir, I believe that we can. We have a fairly comprehensive system at NSA that whenever we collect anything, whether it's under this authority or some other, we actually bind to that communication where we got it, how we got it, what authority we got it under so that we know precisely whether we can retain it for some fixed period of time.
And if it simply ages off, as in the case of the B.R. FISA data we talked about, at the expiration of those five years, it is automatically taken out of the system. Literally just deleted from the system.
CONAWAY: OK. And it's mechanically overwritten and all of the back-up copies of that are done away with, and...
INGLIS: Yes, sir.
CONAWAY: OK.
INGLIS: It's -- it gets fairly complicated very quickly, but we have what are called source systems of record within our architecture, and those are the places that we say if it -- if the data element has the right to exist, it's attributable to one of those. And if it doesn't have the right to exist, you can't find it in there.
And we have very specific lists of information that determine what the provenance of data is, how long that data can be retained. We have on the other side of the coin purge lists that if we were authorized -- if we were required to purge something, that item would show up explicitly on that list. And we regularly run that against our data sets to make sure that we've checked and double-checked that those things that should be purged have been purged.
CONAWAY: All right.
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One quick one: Any indication that the -- the FISA court has a problem with resources necessary to run its oversight piece?
INGLIS: Not that I'm aware of right now. But, obviously, the courts are suffering under sequestration, like everybody else. So I don't know what's gonna hit them as we go forward.
CONAWAY: Thank you, sir,
I yield back.
ROGERS: Mr. Conaway.
Mr. Langevin?
LANGEVIN: Thank you, Mr. Chairman.
And gentlemen, I want to thank you all for your testimony here today and for your service to our -- our country.
I'm -- as members of the committee, I have been briefed on the program, and -- and I know the excess of due diligence you've gone through to make sure that this is done right.
So I think it's important that this discussion is being had this morning. And hopefully it's gonna give greater confidence to the American people that all the agencies involved have dotted their i's and crossed their t's.
I especially think it's helpful that we have the discussion about the FISA court today and -- and how detailed the -- the requests have to be before they get approval and it's made clear that these are not just one-page documents that are presented to a FISA judge and then it's rubber stamped.
It actually goes through excessive due diligence, and -- and before it even gets to the point where the judge sees it. And, obviously, if the -- if all the criteria have been met, then it gets -- it gets approved, and if it's -- if the criteria have not been met, it's gonna be rejected.
So, I won't belabor that point, excepting that's been had -- been a very fruitful discussion.
But can you talk further about the -- again the role of the I.G. and go into that -- that -- that process a little more so that the -the amount of review the I.G. does, once a query has been made in terms of the range of queries that have been made, I think that's -would be important to clarify.
INGLIS: I would just start with that, and then defer to the ODNI and the attorney general -- deputy attorney general for some followup.
And so, at NSA, any analyst that wants to form a query, regardless of whether it's this -- this authority or any other, essentially has a two-person control rule. They would determine
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whether this query should be applied, and there's someone who provides oversight on that.
We've already learned that under the metadata records that are captured by the B.R. FISA program, that there's a very special courtdefined process by which that's done.
Those are all subject to the I.G., the inspector general's review on a periodic basis, such that we can look at the procedures as defined, the procedures as executed, reconcile the two and ensure that internal to NSA, that that's done exactly right. There are periodic reports that the I.G. has to produce on these various programs, and they are faithfully reported. But I think the real checks and balances within the executive branch happen between NSA and the Department of Justice, the Office of the Director of National Intelligence. And because NSA also has a foot within the Department of Defense, the Department of Defense enters into that as well. They have intelligence oversight mechanisms.
And between those four components, there is rich and rigorous oversight which varies in terms of the things that they look for, based upon the authorities. B.R. FISA is a particularly rigorous authority. But they all have checks and balances to transcend just NSA.
LANGEVIN: OK.
COLE (?): And, Congressman, if I -- if I could add to that, and I refer you to a recent review by the DOJ inspector general on the 702 program that was highly complimentary of all the checks and balances that were in place.
LANGEVIN: Thank you.
So let me turn my attention now to -- I know these programs primarily target non-U.S. persons, but can you -- and this is probably a question for you, Mr. Joyce, just to clarify, you've said that if a U.S. person or a -- the overseas or the United States or a non-U.S. person living in the United States, that if they're -- we become aware that they may be involved in terrorist activity that they are served -- processed.
Can you go into that level of detail of what then happens and how the courts are involved with -- if we become aware that a U.S. person is involved?
JOYCE: So -- so I think either -- maybe I misspoke or -- or you misspoke. We -- we -- we are not looking at all at U.S. persons. The 702 is anyone outside the United States. And even if a U.S. person is outside of the United States, it does not include it in the 702 coverage.
OK, so it's a non-U.S. person outside the United States, and it has to have -- there's three different criteria it goes through. One of those links is terrorism. So that is where specifically only certain individuals are targeted. Those ones, one of the criteria,
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linked to terrorism.
On numerous occasions, as I've outlined in some of the examples, those individuals outside the United States were discovered communicating with someone inside the United States.
We then -- that is, being tipped from the NSA. We then go through the legal process here, the FBI does, regarding that U.S. person. So we go and we have to serve what's called a national security letter to identify the subscriber. It's much like a subpoena. Following that, if we want to pursue electronic surveillance, we have to make a specific application regarding that person with the FISA court here.
LANGEVIN: That's what I was looking for. So thank you very much.
I yield back.
(OFF-MIKE)
ALEXANDER: Sir, if I could, just to follow on and -- and to clarify, 'cause as we're going through this, I want to make sure that everything we say is exactly right -- from from my perspective. And so, as Sean said, NSA may not target the phone calls or e-mails of any U.S. person anywhere in the world without individualized court orders.
LANGEVIN (?): OK. Thank you.
ROGERS: That's an important point we can't make enough.
Mr. Lobiondo?
LOBIONDO: Thank you. Thank you, Mr. Chairman.
General Alexander and team, thank you for helping -- helping us understand in so many closed sessions and hopefully helping the nation understand what we're doing, why we're doing it, and how we're doing it.
I want to focus a little bit more on 702, if we could.
And, General Alexander, could you -- could you explain what happens if a target of surveillance is communicating with a U.S. person in the United States?
ALEXANDER: So, under 702, I think the best case is some that Sean Joyce made. If we see, if we're tracking a known terrorist in another country, say Pakistan, Yemen or someplace, and we see them communicating with someone in the United States, and it has a terrorism nexus, focused on doing something in the United States, we tip that to the FBI.
So our job is to identify, see the nexus of it. It could be in another country as well. So sometimes, we'd see somebody in that --
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one of those countries planning something in Europe or elsewhere. We would then share that through intelligence meetings to those countries.
But when it comes into the United States, our job ends. We're the outside and we provide that to the inside FBI to take it from there. So they, then, take it and say, "Does this make sense?" They'll go up, as Sean explained, look at the process for getting additional information to see if this is a lead worth following.
LOBIONDO: And what does the government have to do if it wants to target a U.S. person under FISA when they're located abroad -- when they're not here? What -- what would be the process for the government?
COLE: That would be the -- a full package going to the FISA court, identifying that person; identifying the probable cause to believe that that person is involved in either terrorism or foreign intelligence activities; and indicating that we have then the request to the court to allow us to intercept their communications because we've made the showing that they're involved in terrorist or foreign intelligence activities.
So we'd have to make a formal application targeting that person specifically, whether they're inside or outside of the United States.
LOBIONDO: And what if you...
(CROSSTALK)
INGLIS: And, sir, if I might. And again, that could not be done under 702. There's a separate section of the Foreign Intelligence Surveillance Act that would allow that, but it would not be doable under 702.
LOBIONDO: And -- and what if you want to monitor someone's communication in the United States? COLE: Same thing. Again, a different provision of FISA, but we would have to show that that person is in fact with probable cause involved in foreign terrorist activities or foreign intelligence activities on behalf of a terrorist organization or a foreign power. We'd have to lay out to the court all of those facts to get the court's permission to then target that person.
LOBIONDO: So, I just want to reemphasize that. You -- you have to specifically go to the FISA court and make your case as to why this information is necessary to be accessed.
COLE: That's correct.
LOBIONDO: And without that, you have no authority and cannot do it and do not do it.
COLE: That's correct.
LOBIONDO: OK. Thank you.
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I yield back, Mr. Chairman.
ROGERS: Great. Thank you very much.
Mr. Schiff?
SCHIFF: Thank you, Mr. Chairman.
And thank you, gentlemen, for your work.
On the business records program, the general FISA court order allows you to get the metadata from the communications providers. Then when there are reasonable and articulable facts, you can go and see if one of the numbers has a match in the metadata.
On those 300 or so occasions when you do that, does that require separate court approval? Or does the general FISA court order allow you, when your analysts have the reasonable, articulable facts, to make that query? In other words, every time you make the query, does that have to be approved by the court?
COLE: We do not have to get separate court approval for each query. The court sets out the standard that must be met in order to make the query, in its order. And that's in the primary order. And then that's what we audit in a very robust way in any number of different facets through both executive branch and then give it to the court, and give it to the Congress.
So we're given that 90-day period with these parameters and restrictions to access it. We don't go back to the court each time.
SCHIFF: And does the court scrutinize after you present back to the court, "these are the occasions where we found reasonable articulable facts," do they scrutinize your basis for conducting those queries?
COLE: Yes, they do.
SCHIFF: General Alexander, I wanted to ask you. I raised this in closed session, but I'd like to raise it publicly as well. What are the prospects for changing the program such that rather than the government acquiring the vast amounts of metadata, the telecommunications retain the metadata, and then only on those 300 or so occasions where it needs to be queried, you're querying the telecommunications providers for whether they have those business records related to a reasonable articulable suspicion of foreign terrorist connection?
ALEXANDER: I think jointly the FBI and NSA are looking at the architectural framework of how we actually do this program and what are the advantages and disadvantages of doing each one. Each case, as you know from our discussions, if you leave it at the service providers, you have a separate set of issues in terms of how you actually get the information, then how you have to go back and get that information, and how you follow it on and the legal authority for them to compel them to keep these records for a certain period of time.
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So what we're doing is we're going to look at that and come back to the director of national intelligence, the administration and then to you all, and give you recommendations on that for both the House and the Senate. I do think that that's something that we've agreed to look at and that we'll do. It's just going to take some time. We want to do it right.
And I think, just to set expectations, the -- the concern is speed in crisis. How do we do this? And so that's what we need to bring back to you, and then I think have this discussion here and let people know where we are on it.
Anything that you wanted to add?
SCHIFF: I would -- I would strongly encourage us to vigorously investigate that potential restructuring. Even though there may be attendant inefficiencies with it, I think that the American people may be much more comfortable with the telecommunications companies retaining those business records, that metadata, than the government acquiring it, even though the government doesn't query it except on very rare occasions.
ALEXANDER: So it may be something like that that we'd bring back and look at. So we are going to look at that. And we have already committed to doing that and we will do that, and go through all the details of that.
SCHIFF: Mr. Litt, I wanted to ask you about the FISA court opinions. This week, I'm going to be introducing the House companion to the bipartisan Merkley bill that would require disclosure of certain FISA court opinions, again, in a form that doesn't impair our national security.
I recognize the difficulty that you described earlier in making sure those opinions are generated in a way that doesn't compromise the programs. You mentioned that you're doing a review, and I know one's been going on for sometime. In light of how much of the programs have now been declassified, how soon do you think you can get back to us about whether you're going to be able to declassify some of those FISA court opinions?
LITT: I'm hesitant to answer any question that begins "how soon," partly because there are a lot of agencies with equities in this, partly because there's a lot else going on in this area. My time has not been quite as free-up to address this topic as I would have liked over the last week-and-a-half.
I can tell you that -- that I've asked my staff to work with the other agencies involved and try to press this along as quickly as possible. We're trying to identify those opinions where we think there's the greatest public interest in having them declassified, and start with those. And we'd like to push the process through as quickly as possible at this point.
SCHIFF: And I would just encourage in the last second that beyond the two programs at issue here, to the degree you can
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declassify other FISA court opinions, I think it's in the public interest.
LITT: Yes, I think that's part of what we're doing.
SCHIFF: Thank you, Mr. Chairman.
COLE: Congressman Schiff, I just wanted to correct a little bit one of the things I said. The FISC does not review each and every reasonable, articulable suspicion determination. What does happen is they are given reports every 30 days in the aggregate. And if there are any compliance issues, if we found that it wasn't applied properly, that's reported separately to the court.
ROGERS: Do you have a followup?
SCHIFF: Thank you, Mr. Chairman. I just want to make sure I understood what you just said. A prior court approval is not necessary for a specific query. But when you report back to the court about how the order has been implemented, you do set out those cases where you found reasonable articulable facts and made a query. Do you set out those with specificity or do you just say "on 15 occasions, we made a query"?
COLE: It's more the latter -- the aggregate number where we've made a query. And if there's any problems that have been discovered, then we with specificity report to the court those problems.
SCHIFF: It may be worth considering providing the basis of the reasonable and articulable facts and having the court review that as a -- as a further check and balance. I'd just make that suggestion.
ROGERS: Mr. Cole, my understanding, though, is that every access is already preapproved; that the way you get into the system is courtapproved. Is that correct?
COLE: That's correct.
The court sets out the standards which have to be applied to allow us to make the query in the first place. Then the application -- the implementation of that standard is reviewed by NSA internally at several levels before the actual implementation is done. It's reviewed by the Department of Justice. It's reviewed by the Office of the Director of National Intelligence. It's reviewed by the inspector general for the National Security Agency. So there's numerous levels of review of the application of this. And if there are any problems with those reviews, those are then reported to the court.
ROGERS: And -- and just to be clear, so if they don't follow the court-approved process, that would be a variation, that would have to be reported to the court?
COLE: That's correct.
ROGERS: OK. But you are meeting the court-approved process with every query?
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COLE: That's correct.
INGLIS: And sir, if I might add to that that every one of those query is audited, those are all reviewed by the Department of Justice. Those are the reviews that we spoked about -- spoke about at 30 and 90 days. And there's a very specific focus on those that we believe are attributable to U.S. persons despite the fact that in (inaudible) FISA we don't know the identities of those persons. And so the court gets all of those reports.
SCHIFF: Thank you, Mr. Chairman.
I -- I just point out, all those internal checks are valuable, but they're still internal checks. And it may be worthwhile having the court, if not prospectively at least after the fact review those determinations.
Thank you, Mr. Chairman.
NUNES: Thank you, Mr. Chairman.
Mr. Cole, really what's happened here is that the totality of many problems within the executive branch has now tarnished the fine folks at the NSA and the CIA. And I just made a short list here, but, you know, right after Benghazi there was -- there's lies after Benghazi, four dead Americans. Fast and Furious, the Congress still is missing documents. We have dead Americans and dead Mexican citizens. You at least tapped into or got phone records from AP reporters, Fox News reporters, including from the House Gallery right here within this building.
Last week, as you know, A.G. Holder has been -- is being accused by the Judiciary Committee of possibly lying to the committee.
And then to top it all off, you have, you know, an IRS official who with other officials ran like a covert media operation on a Friday to help, you know, try to release documents to think that this would just go away about the release of personal data from U.S. citizens from the IRS.
So now -- you know, I understand when my constituents ask me, "Well, if the IRS is leaking personal data" -- General Alexander, this question's for you -- "how do I know for sure that the NSA and the -and (inaudible) people that are trying to protect this country aren't leaking data?"
So Mr. -- Mr. Rogers asked the question about, you know, how do we know that -- that someone from the White House just can't go turn a switch and begin to listen to their phone conversations?
So General, I think if you could clarify the -- kind of the difference in what the people that are trying to protect this country are doing and what they go through, the rigorous standards. I think it would help, I think, fix this mess for the American people.
ALEXANDER: Thank you, Congressman.
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I think the key -- the key facts here. When we disseminate data, everything that we disseminate and all the queries that are made into the database are 100 percent auditable. So they are audited by not only the analysts who's actually doing the job but the overseers that look and see, did he do that right or she do that right.
In every case that we have seen so far we have not seen one of our analysts willfully do something wrong like what you you just said. That's where disciplinary action would come in.
What I have to overwrite -- underwrite is when somebody makes an honest mistake. These are good people. If they transpose two letters in typing something in, that's an honest mistake. We go back and say, now how can we fix it? The technical controls that you can see that we're adding in help fix that. But is -- it is our intent to do this exactly right.
In that, one of the things that we have is tremendous training programs for our people that they go through. How to protect U.S. persons data? How to interface with the business record FISA? The roles and responsibilities under FAA 702. Everyone, including myself, at NSA has to go through that training to ensure that we do it right.
And we take that very seriously. I believe the best in the world at (ph) terms of protecting our privacy. And I would just tell you, you know, the other thing that's sometimes confused here is that, "Well, then they're getting everybody else in the world." But our -- our approach is foreign intelligence -- you know, it's the same thing in Europe. We're not interested in -- in -- well, one, we don't have the time. And, two, ours is to protect our country and our allies. I think we do that better than anyone else.
Now, Chris, anything -- if you want to add to that?
INGLIS: No, I think that's exactly right. When somebody comes to work at NSA, just like elsewhere in the government, they take an oath to the Constitution not to NSA, not to some particular mission but to the Constitution and the entirety of that Constitution. Covers the issues importantly that we're discussing here today: national security and the protection of civil liberties. There's no distinction for us. They're all important.
NUNES: So I want to -- I want to switch gears a little bit here, General Alexander -- and perhaps this is a good question for Mr. Joyce. But I just find it really odd that right before the Chinese president comes to this country that all of these leaks happen and this guy has fled to -- to Hong Kong, this Snowden. And I'm really concerned that just -- the information that you presented us last week. This is probably gonna be the largest leak in American history -- and there's still probably more to come out. Can you just explain to the American people the seriousness of this leak and the damage -you said earlier that it's damaged national security. Can you go into a few of those specifics?
JOYCE: Very -- no. Really, I can comment very little other than
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saying it's and ongoing criminal investigation. I can tell you, as we've all seen, these are egregious leaks -- egregious. It has affected -- we are revealing in front of you today methods and techniques. I have told you, the examples I gave you, how important they have been. The first core Al Qaida plot to attack the United States post-9/11 we used one of these programs. Another plot to bomb the New York Stock Exchange, we used these programs. And now here we are talking about this in front of the world. So I think those leaks affect us.
NUNES: General?
ALEXANDER: It also -- it also affects our partnership with our allies, because the way it comes out -- and with industry. I mean, it's damaged all of those. Industry's trying to do the right thing, and they're compelled by the courts to do it. And we use this to also protect our allies and our interests abroad.
And so I think the way it's come out and the way it looks is that we're willfully doing something wrong when in fact we're using the courts, Congress and the administration to make sure that everything we do is exactly right. And as Chris noted, we all take an oath to do that, and we take that oath seriously.
NUNES: And in fact, just in closing here, Mr. Chairman, we know from the Mandiant report that came out that other governments are busy doing this and expanding their cyber warfare techniques. And I just want to say that, you know, it is so vital, as the chairman's pointed out many times, for the folks and the work that you're doing at NSA and all of your folks, how important that is to not only today's security but tomorrow's security.
So thank you for your service, General.
I yield back.
ROGERS: I -- I would just dispute the fact that other governments do it any -- any way, shape or form close to having any oversight whatsoever of their intelligence gathering programs.
Ms. Sewell?
SEWELL: Thank you, Mr. Chairman.
I also want to thank all of our witnesses today for your service to this country and for helping to maintain our national security.
I'd like to talk a little bit about the security practices. You've spent a lot of time really explaining to the American people the various levels of complexity in which you have judicial oversight and congressional oversight. How did this happen? How did a relatively low level administrator -- service systems administrator I think you said, General Alexander -- have classified information? And is it an acceptable risk?
I get that you have 1,000 or so system administrators. It is extremely frightening that you would go through such measures to do
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the balancing act internally to make sure that we're balancing protection and security and -- and privacy, and yet internally in your own controls, there are system administrators that can go rogue. Is it an acceptable risk? How did it happen? And is there oversight to these system administrators?
ALEXANDER: Well, there is oversight. What we are now looking at is where that broke down and what happened. And that's gonna be part of the investigation that we're working with the FBI on.
I would just come back to 9/11. One of the key things was we went from the need to know to the need to share. And in this case, what the system administrator had access to is what we'll call the public web forums that NSA operates. And these are the things that talk about how we do our business, not necessarily what's been collected as a results of that; nor does it necessarily give them the insights of the training and the other issues that -- training and certification process and accreditation that our folks go through to actually do this.
ALEXANDER: So those are in separate programs that require other certificates to get into. Those are all things that we're looking at. You may recall that the intelligence community looked at a new information technology environment that reduces the number of system administrators.
If we could jump to that immediately, I think that would get us a much more secure environment and would reduce this set of problems. It's something that the DNI is leading and that we're supporting, as you know, across the community. I think that is absolutely vital to get to. And there are -- there are mechanisms that we can use there that will help secure this.
Please.
SEWELL: So the -- to be clear, Snowden did not have the certificates necessarily -- necessary to lead that public forum?
ALEXANDER: So each -- each set of data that we would have -and, in this case, let's say the business records, FISA -- you have to have specific certificates -- because this is a cordoned off. So that would be extremely difficult for him -- you'd have to get up to NSA, get into that room.
Others require certificates for you to be working in this area to have that. It -- he would have to get one of those certificates to actually enter that area. Does that make sense? In other words, it's a key.
SEWELL: Well, I think that -- I would encourage us to figure out a way that we can declassify more information. I thank you for giving us two additional examples of -- of -- of terrorist attacks that we have thwarted because of these programs. But I think that providing us with as much information as you can on FISA courts' opinions -- how -- how that goes -- would help the American public de-mystify what we're doing here. I think that the examples -- the additional
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examples that you gave today were great.
But I also am concerned that we have contractors doing -- I get that we cannot -- that there was a move at some point to -- to not have as many government employees, and so we sort of out-sourced it. But given the sensitivity of the information and the access, even for -- for relatively low-level employees, do you see that being a problem? And -- and how do we go about...
ALEXANDER: So we do have significant concerns in this area. And it is something that we need to look at. The mistakes of one contractor should not tarnish all the contractors because they do great work for our nation, as well. And I think we have to be careful not to throw everyone under the bus because of one person.
But you -- you raised two great points that I think we -- we will look at. One, how do we provide the oversight and compliance? And I talked to our technology director about the two-person control for system administrators to make any change. We are going to implement that. And I think, in terms of what we release to the public, I am for releasing as much as we can. But I want to weigh that with our national security, and I think that's what you expect. That -- that's what the American people...
SEWELL: Absolutely.
ALEXANDER: ... expect us. So that's where I need to really join that debate on this side to make sure that what we do is exactly right. I think on things like how we minimize data, how we run this program, the -- those kinds of things, I think we can -- we -- we're trying to be -- that's why Chris went through those great details.
I think those are things that the American people should know. Because what they find out is -- shoot, look at the oversight, the compliance, and the training that are people are going through. This is huge. This isn't some rogue operation that a group of guys up at NSA are running. This is something that have oversight by the committees, the courts, the administration in a 100 percent auditable process on a business record FISA.
You know, that's extraordinary oversight. And I think when the American people look at that, they say, "Wow, for less than 300 selectors, that amount of oversight --" and that's what we jointly agreed to do. I think that's tremendous.
SEWELL: I do too. I -- I -- I applaud the efforts. I just -- I think that, given the nature of this leak, you know, we don't want our efforts to be for naught, if, in fact, what happens is that the -- the leaks get the American people so concerned that they -- we roll back on these programs, and therefore increase our vulnerability as a nation. I think that all of us -- that's not in anyone's best interest.
Going back to sort of the difference between private contractors and government employees, is there a difference in the level of security clearance that...
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ALEXANDER: Same level of security clearance and the same process for securing them.
SEWELL: OK.
Thank you. I yield back the rest of my time.
ROGERS: Thank you.
Mr. Westmoreland. WESTMORELAND: Thank you, Mr. Chairman.
Mr. Cole, as Mr. Nunes had mentioned about some of the other things that have come out about leaks and so forth, could you -because my constituents ask me the difference and maybe what the attorney general did in going to the court to -- on the Rosen case saying that he was an unindicted co-conspirator, because that was actually about a leak also. What type of process or internal review did y'all go over before you asked for those phones to be tapped? And, to make it perfectly clear, that was not in a FISA court. Is that correct?
COLE: Number one, that was not a FISA court. In the Rosen case, there were no phones being tapped. It was just to acquire a couple of e-mails. And there is a very, very robust system. It's set out in regulations that the Department of Justice follows of the kinds of scrubbing and review that must be done before any subpoena like that can be issued.
You have to make sure that you've exhausted all other reasonable avenues of investigation that -- that's done before you even get to the decision about whether or not such a -- a process should be used. You have to make sure that the information you're looking at is very, very tailored and only necessary -- truly necessary to be able to move the investigation forward in a significant way.
There has -- there are restrictions on what can be done with the information. And it goes through a very long process of review from the U.S. attorney's office through the United States attorney him or herself, into the, usually, the criminal division of the Justice Department, through the assistant attorney general of the criminal division, through the deputy attorney general's office and up, ultimately, to the attorney general signing it. It gets a lot of review before that's done under the criteria that we have in our guidelines and our CFR.
WESTMORELAND: So -- so the DOJ didn't -- because -- (inaudible) a security leak, the DOJ didn't contact the FBI or the NSA, or there was no coordination with that? It was strictly a DOJ criminal investigation?
COLE: Well, the FBI does criminal investigation with...
WESTMORELAND: I understand.
COLE: ... the Department of Justice. And they were contacted in that regard. But it was not part of the FISA process. It did not
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involve the NSA.
WESTMORELAND: And I think that's what we need to be clear of, is...
COLE: Correct.
WESTMORELAND: ... that it was absolutely not part of the FISA -process. And that is a lot more detailed and a lot more scrutinized as far as getting information than what this was. Is that correct?
COLE: Well, they're both very detailed and very scrutinized processes. They're -- they have different aspects to them. But they're both very unusually, frankly, detailed and scrutinized, both of those processes.
WESTMORELAND: Thank you.
And, General, going back to what Ms. Sewell had asked about the difference of clearance that you would have with a contractor or a government employee, when you have 1,000 different contractors -- I mean, I know the -- from my experience on having had one of my staff go through a security clearance, it's pretty -- it's a -- it's a pretty detailed operation. And I know that this gentleman had previously, I believe, heard that he had worked for the CIA. Had there been any further clearance given to this individual when he became a contractor after he left the employee of the CIA?
ALEXANDER: No additional clearance. He had what's needed to work at NSA or one of our facilities, the top secret special intelligence clearance. And that goes through a series of processes and reviews. The director of national intelligence is looking at those processes to make sure that those are all correct. And -- and he stated he's taken that on. We support that objective.
But to work at NSA, whether you're a contract, a government civilian, or a military, you have to have that same level of clearance.
WESTMORELAND: Does it bother you that this general had only been there for a short period of time? Or is there any oversight or review or whatever of the individuals are that carrying out this work? Is there any type of probation time or -- or anything? Because, you know, it seems that he was there a -- a very short period of time.
ALEXANDER: So he had worked in a couple of positions. He had just moved into the Booz Allen position in March. But he had worked in a information technology position for the 12 months preceding that at NSA Hawaii. So he'd actually been there 15 months. He moved from one contract to another.
WESTMORELAND: So would he have been familiar with these programs at his previous job?
ALEXANDER: Yes. And I believe that's where -- going out on what we call, the public classified web servers that help you understand
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parts of NSA, that he gained some of the information, and -- and took some of that. I can't go into more detail.
LITT: Mr. Westmoreland, if I just might...
WESTMORELAND: Yes?
LITT: ... make one point there? When you say, would he have become familiar with these programs? I think part of the problem that we're having these days is that he wasn't nearly as familiar with these programs as he's portrayed himself to be. And thus -- this is what happens when somebody, you know sees a tiny corner of things and thinks that it gives them insight and viability into the program.
WESTMORELAND: Thank you. I yield back.
HIMES: Thank you Mr. Chairman and I too would like to thank the panel for appearing here today and for your service to the country. I think I've told each of you that in my limited time on this committee, I've been heartened by your competence, and by the competence of the agencies in which you work. I'll also add that I've seen nothing in the last week, week and a half to suggest that any of these programs that are being discussed, are operating in any way outside the law. And I would add that the controls that appear to be in place on these programs seem -- seem solid. I'll also say that I don't know that there's any way to do oversight without a posture of skepticism on the part of the overseers.
And so I hope you'll take my observations and questions in that spirit. And I'd like to limit my questions and observations purely to Section 215 and the Verizon disclosures, which quite frankly, trouble me. They trouble me because of the breadth and the scope of the information collection. They trouble me because I think this is historically unprecedented in the extent of the data that is being collected on potentially all American citizens. And the controls which you've laid out for us, notwithstanding, I think new (sic) for this country. We know that when a capability exists, there's a potential for abuse. Mr. Nunes ran through a lot of current issues going back to J. Edgar Hoover bugging the hotel rooms of Martin Luther King, to Nixon, to concerns around the IRS.
If a capability exists, from time to time it will be abused. And one of the things that I'm concerned about is this individual who I -who's resume would I think make him -- make it unlikely that he would get an unpaid internship in my office, he had access to some of the most sensitive information that we have. And perhaps he could have, or someone like him, could have chosen a different path. Could have accessed phone numbers and -- though we spent a lot of time on the fact that you don't get names, we all know that with a phone number and Google, you can get a name pretty quickly.
He could have chosen to make a point about Congressman Himes making 2:00 am phone calls out of a bar in Washington. Or the CEO of Google making phone calls. Or anything really. Information that we hold to be private. So I guess -- I've got two questions. I guess I direct this one on 215 to Mr. Litt and then Mr. Cole. Where do we draw the line? So in other words, so long as the information is not
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information to which I have a reasonable expectation of privacy under Maryland v. Smith and under Section 215 powers, where do we draw the line?
Could you, for example have video data? As I walk around Washington my -- I suppose that you could probably reconstruct my day with video that is captured on third-party cameras. Could you keep that in a way that is analogous to what you're doing with phone numbers? And again with all of the careful guards and what not, could you not reconstruct my day because I don't have a reasonable expectation of privacy around -- I know that's a hypothetical, but I'm trying to identify where the line is?
COLE: Well, I think the -- the real issue here is how it's accessed? What it can be used for? How you can actually...
HIMES: I -- I -- I'm stipulating that that system, even though we know it's not perfect, I'm stipulating that that system is perfect. And I'm asking, where is the limit as to what you can keep in the tank?
COLE: I -- I think some of it is a matter for the United States Congress to decide as policy matters, and the legislating that you do surrounding these acts, as to where you're going to draw those lines. Certainly the courts have looked at this and determined that under the statutes we have, there is a relevance requirement, and they're not just saying out of whole cloth you're allowed to gather these things. You have to look at it all together. And they're only saying that you can gather this volume under these circumstances, under these restrictions, with these controls. Without those circumstances and controls and restrictions, the court may well not have approved the orders under 215 to allow that collection to take place.
So you can't separate that out, one from the other and say, just the acquisition, what can we do? Because the acquisition comes together with the restrictions on access.
HIMES: And if those restrictions and controls are adequate, there's theoretically no restriction on your ability to store information on anything for which I do not have the reasonable expectation for privacy?
COLE: I'll refer back to NSA...
(CROSSTALK)
HIMES: Let me...
(CROSSTALK)
HIMES: ... I do have one more question.
(CROSSTALK)
HIMES: Yeah, this is the conversation -- I do have one more -much more...
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ALEXANDER: Can I...
HIMES: ... specific question.
ALEXANDER: ... can I hit...
HIMES: Yeah.
ALEXANDER: ... if I could. I'll ask for more time if I could, because I do think what you've asked is very important. So your question is, could somebody get out and get your phone number and see that you were at a bar last night? The answer is no. Because first in our system, somebody would have had to approve, and there's only 22 people that can approve, a reasonable articulable suspicion on a phone number. So first, that has to get input. Only those phone numbers that are approved could then be queried. And so you have to have one of those 22 break a law. Then you have to have somebody go in and break a law. And the system is 100 percent auditable, so it will be caught.
There is no way to change that. And so on that system, whoever did that would have broken the law. That would be willful. And then that person would be found by the court to be in violation of a court order, and that's much more serious. We have never had that happen.
HIMES: Yeah. No, I -- I thank you. I appreciate that, and I -I sort of -- I think it's really important to explore these -- these bright lines about what you can keep and what you can't. Again, I don't see anything about the control systems that are troubling, but I do have one last quick question if the chairman will indulge me in. General, this is I guess for you and it's -- it's something that I asked you in closed session. As we weigh this, because obviously we're weighing security against privacy and what not, as we weigh this, I think it's really important that we understand exactly the national security benefit. And I limit myself to 215 here. 50 episodes. I don't think it's adequate to say that 702 and 215 authorities contributed to our preventing 50 episodes. I think it's really essential that you grade the importance of that contribution. The question I asked you, and -- and you can answer now, or I'd really like to get into this. How many of those 50 episodes would have occurred, but for your ability to use the Section 215 authorities as disclosed in the Verizon situation? How essential, not just contributing to, but how essential are these authorities to stopping which terrorist attacks?
ALEXANDER: OK. For clarity over 50. And in 90 percent of those cases FAA 702 contributed, and in 50 percent I believe they were critical. We will send that to the committee.
HIMES: This is 702 you're talking about?
ALEXANDER: This is 702.
HIMES: OK.
ALEXANDER: Now, shifting to the business record FISA, and I'll do a Mutt and Jeff here, I'm not sure which one I am. There's just
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over 10 that had a domestic. And the vast majority...
HIMES: 10 of the 50 were section...
ALEXANDER: Just over 10.
(CROSSTALK)
HIMES: And how many would you say were critical.
ALEXANDER: No. No, you're...
HIMES: I'm sorry.
ALEXANDER: ... let me finish.
HIMES: Did I get it wrong?
ALEXANDER: Yeah, you do. Over -- just slightly over 10, and I don't want to pin that number until the community verifies it, so just a little over 10 were a domestic -- had a domestic nexus. And so business records FISA could only apply to those? So, see the ones in other countries, it couldn't apply to because the data is not there and it doesn't come into the U.S. So if we now look at that, the vast majority of those had a contribution by business record FISA. So, I think we have to be careful that you don't try to take the whole world and say, oh well you only did those that were in the United States and only, you know some large majority of that.
I do think this, going back to 9/11, we didn't have the ability to connect the dots. This adds one more capability to help us do that. And from my perspective, what we're doing here with the civil liberties and privacy oversight, and bringing together, does help connect those dots. Go ahead, Sean? HIMES: If I could just -- I -- I'm out of time, but I think this point is really important. If my constituents are representative of the broader American public, they're more concerned frankly with the Section 215 gathering of American data than they are with the foreign data. And so I really hope you'll elucidate for us specifically case by case how many stopped terrorist attacks were those programs, 215, essential to?
JOYCE: I would just add to General Alexander's comments.
And I -- and I think you asked an almost impossible question to say, how important each dot was.
What I can tell you is, post 9/11 I don't recognize the FBI I came into 26 years ago. Our mission is to stop terrorism, to prevent it. Not after the fact, to prevent it before it happens in the United States. And I can tell you every tool is essential and vital. And the tools as I outlined to you and their uses today have been valuable to stopping some of those plots. You ask, "How can you put the value on an American life?" And I can tell you, it's priceless.
HIMES: Thank you, Mr. Chairman.
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ROGERS: (OFF-MIKE)
BACHMANN: Thank you, Mr. Chair, for holding this important hearing today.
I just have a series of short questions. My first one is, you had mentioned earlier in your testimony that data must be destroyed within five years of acquisition. I believe that's in section 215 phone records. Is that -- that's true, within five years?
INGLIS: That is true. It's destroyed when it reaches five years of age.
BACHMANN: And how long do the phone companies on their own maintain data?
INGLIS: That varies. They don't hold that data for the benefit of the government. They hold that for their own business internal processes. I don't know the specifics. I know that it is variable. I think that it ranges from six to 18 months and the data that they hold is, again, useful for their purposes, not necessarily the government's.
BACHMANN: So then my question is, did the FISA orders give the United States companies a choice in whether to participate in the NSA business records or in the PRISM programs? Were these -- was this voluntarily -- voluntary compliance on the part of these companies?
INGLIS: No, these are court orders that require their compliance with the terms of the court order.
BACHMANN: So let me just for the record state, is NSA spying today or have you spied on American citizens?
INGLIS: We -- we do not target U.S. persons anywhere in the world without a specific court warrant.
BACHMANN: And does the NSA listen to the phone calls of American citizens?
INGLIS: We do not target or listen to the telephone calls of U.S. persons under that targeting without a specific court warrant.
BACHMANN: Does the NSA read the e-mails of American citizens?
INGLIS: Same answer, ma'am.
BACHMANN: Does the NSA read the text messages of American citizens?
INGLIS: Again, we do not target the content of U.S.-person communications without a specific warrant anywhere on the earth.
BACHMANN: Has the NSA ever tracked any political enemies of the administration, whether it's a Republican administration or Democrat administration? Have either of the administrations -- you said you're
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100 percent auditable, so you would know the answer to this question -- have you ever tracked the political enemies of an administration?
INGLIS: In my time at NSA, no, ma'am.
BACHMANN: Does the government keep the video data, like Mr. Himes had just questioned? Does the government have a database with video data in it, tracking movements of the American people?
INGLIS: No, ma'am.
(CROSSTALK)
BACHMANN: I'm sorry. That's not -- the microphone isn't on.
INGLIS: NSA does not hold such data.
ALEXANDER: Yeah, and we don't know of any data -- anybody that does. So I think those are held, as you see from Boston, by individual shop owners and (inaudible).
BACHMANN: But -- but does the federal government have a database with video data in it tracking the whereabouts of the American people?
JOYCE: The FBI does not have such a database, nor am I aware of one.
BACHMANN: Do we -- does the American government have a database that has the GPS location whereabouts of Americans, whether it's by our cell phones or by any other tracking device? Is there a known database?
INGLIS: NSA does not hold such a database. BACHMANN: Does the NSA have a database that you maintain that holds the content of Americans' phone calls? Do you have recordings of all of our calls? So if we're making phone calls, is there a national database that has the content of our calls?
ALEXANDER: We're not allowed to do that, nor do we do that, unless we have a court order to do that. And it would be only in specific cases and almost always that would be an FBI lead, not ours.
BACHMANN: So do we maintain a database of all of the e-mails that have ever been sent by the American people?
ALEXANDER: No. No, we do not.
BACHMANN: Do we -- is there a database from our government that maintains a database of the text messages of all Americans?
ALEXANDER: No -- none that I know of, and none at NSA.
BACHMANN: And so I think what you have told this committee is that the problem is not with the NSA, that is trying to keep the American people safe. You've told us that you have 100 percent auditable system that has oversight both from the court and from
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Congress.
It seems to me that the problem here is that of an individual who worked within the system, who broke laws, and who chose to declassify highly sensitive classified information. It seems to me that's where our focus should be, on how there could be a betrayal of trust and how a traitor could do something like this to the American people. It seems to me that's where our focus must be and how we can prevent something like that from ever happening again.
Let me ask your opinion: How damaging is this to the national security of the American people that this trust was violated?
ALEXANDER: I think it was irreversible and significant damage to this nation.
BACHMAN:: Has this helped America's enemies?
ALEXANDER: I believe it has. And I believe it will hurt us and our allies.
BACHMANN: I yield back, Mr. Chair.
ROONEY: Thank you, Mr. Chairman.
I want to thank the panel.
You know, one of the negatives about being so low on the totem pole up here is basically all the questions that I wanted to address have been asked.
And I think I'm really proud of this committee because on both sides of the aisle, a lot of the questions were very poignant. And I hope that the American people and those that are in the room have learned a lot about what happened here and learned a lot about the people on the panel.
I can say specifically, General Alexander, my time on the Intelligence Committee, I have more respect for you. And I'm glad that you're the one up there testifying so the American people can see despite what they're -- what's being portrayed and the suspicions that are out there, that there is nobody better to articulate what happened and what we're trying to do than yourself.
So I want to thank you for that.
We -- we -- I'll ask a couple basic questions that I think that might help clear some things up.
Mr. Cole, you talked about how the -- the Fourth Amendment isn't applicable under the business records exception and the Patriot Act Section 215, applicable case law, Maryland v. Smith, et cetera. And then we heard about how to -- to be able to look at the data under 215, there has to be very specific suspicion that is presented to a court, and that court is not a rubber stamp in allowing us to basically look at metadata which is strictly phone records.
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One of, I think, problems that people have out there is that it was such a large number of phone numbers. And when you testify, when everybody testifies, that it's very specific and only a limited number of people are able to -- to basically articulate who we should be looking at and then you hear this number, millions, from Verizon, can you -- can you help clear that up?
COLE: Certainly. First of all we -- as we said, we don't give the reasonable suspicion to the court ahead of time. They set out the standards for us to use.
But the analogy, and I've heard it used several times is, if you're looking for a needle in the haystack, you have to get the haystack first. And that's why we have the ability under the court order to acquire -- and the key word here is acquire -- all of that data.
We don't get to use all of that data necessarily. That is the next step, which is you have to be able to determine that there is reasonable, articulable suspicion to actually use that data.
So if we want to find that there is a phone number that we believe is connected with terrorist organizations and terrorist activity, we need to have the rest of the haystack, all the other numbers, to find out which ones it was in contact with.
And, as you heard Mr. Inglis say, it's a very limited number of times that we make those queries because we do have standards that have to be met before we can even make use of that data. So while it sits there, it is used sparingly.
ROONEY: Did you or anybody that you know at the NSA break the law in trying to obtain this information?
COLE: I am aware of nobody who has broken the law at the NSA in obtaining the information in the lawful sense. There's other issues that we have with the leaks that have gone on here.
ROONEY: And maybe this question is for General Alexander: Based on everything that we've heard today, do you see any problems with either 702 or 215 that you think should be changed by this body? ALEXANDER: Not right now. But this is something that we have agreed that we would look at, especially the structure of how we do it.
I think Congressman Schiff brought up some key points, and we are looking at all of those. And what we have to bring back to you is the agility, how we do it in the oversight, is there other ways that we can do this.
But at the end of the day, we need these tools and we just got to figure out the right way to do it or the next step from my perspective, having the court, this body of Congress and the administration do oversight.
I think if the American people were to step through it, they would agree that what we're doing is exactly the right way.
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ALEXANDER: So those are the steps that we will absolutely they'll go back and -- and look at the entire architecture and that's a commitment that FBI and NSA has made to the administration and to this committee.
ROONEY: Final question, Mr. Joyce, what's next for Mr. Snowden we can expect?
JOYCE: Justice.
ROONEY: I yield back, Mr. Chairman. Thank you.
(CROSSTALK)
POMPEO: Great. Thank you, Mr. Chairman.
Thank you all for being here today. You know, this has been -this has been a great hearing. I think the American people will have gotten a chance to hear from folks who are actually executing this program in an important way, and they'll have a choice whether to believe Mr. Inglis and General Alexander or a felon who fled to communist China.
For me, there's an easy answer to that.
There are those who talk about the war on terror winding down, they say we're toward the end of this, these programs were created post-9/11 to counter the terrorist threat, but for the soldiers fighting overseas and our allies and for us in the States.
General Alexander, Mr. Joyce, do you think these programs are just as much needed today as they were in the immediate aftermath of 9/11?
ALEXANDER: I do.
JOYCE: I do, too. And I would just add, I think the environment has become more challenging. And I think the more tools you have to be able to fight terrorism, the more we're gonna be able to protect the American people.
POMPEO: Thank you.
We've talked a lot about the statutory basis for Section 215 and Section 702. We've talked a lot on all the process that goes with them. And I want to spend just a minute talking about the constitutional boundaries and where they are.
We've got FISA court judges, Article 3. Mr. Litt, these are just plain old Article 3 judges, in the sense of life time tenure, nominated by a president, confirmed by the United States Senate. They have the same power, restrictions and authority as all Article 3 judges do. Is that correct?
LITT: Yes, that's correct.
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POMPEO: We have Article 2 before us here today and we've got Article 1 oversight taking place this morning.
I want to talk about Article 1's involvement. There have been some members who talked about the fact that they didn't know about these programs. General Alexander or maybe Mr. Inglis, can you talk about the briefings that you've provided for members of Congress, both recently and as this set of laws was developed -- set of laws were developed?
INGLIS: So 702 was recently reauthorized at the end of 2012. In the runup to that, NSA in the companionship with the Department of Justice, FBI, the DNI, made a series of presentations across the Hill some number of times and talked in very specific details at the classified level about the setup of those programs, the controls on those programs and the success of those programs.
The reauthorization of Section 215 of the Patriot Act came earlier than that, but there was a similar set of briefings along those lines.
At the same time, we welcome and continue to welcome any and all Congress persons or senators to come to NSA or we can come to you and at the classified level brief any and all details, That's a standing offer. And some number have, in fact taken us up on that offer.
POMPEO: Do you have something to add, General?
ALEXANDER: That's exactly right. In fact, anyplace, anytime we can help, we will do it.
POMPEO: Good. I appreciate that. I've been on the committee only a short time. I learned about these programs actually before I came on the committee, so I know that members outside of this committee also had access to the information. And I think that's incredibly important.
As -- as committee oversight members, that's one thing, but I think it's important that all the members of Congress understand the scope of these programs. And I appreciate the fact that you've continued to offer that assistance for all of us.
A couple of just clean-up details, going last. I want to make sure I have this right.
General Alexander, from the data under Section 215 that's collected, can you -- can you figure out the location of the person who made a particular phone call?
ALEXANDER: Not beyond the area code.
POMPEO: Do you have any information about the signal strength or tower direction? I've seen articles that talk about you having this information. I want to...
(CROSSTALK)
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ALEXANDER: No, we don't.
POMPEO: ... we've got that right.
ALEXANDER: We don't have that in the database.
POMPEO: And then, lastly, Mr. Litt, you made a reference to Section 702. You talked about it being a restriction on Article 230, not an expansion. That is, Article 2, the presidents of both parties believed they had the -- the powers that are being exercised under Section 702 long before that statutory authority was granted.
So is it the case that you view Section 702 as a control and a restriction on Article 2?
LITT: Yes.
POMPEO: Great.
Mr. Chairman, I yield back.
(OFF-MIKE)
KING: Thank you, Mr. Chairman. I'll make this brief.
I want to first of all thank all witnesses for their testimony, for their service, and for all you've done to strengthen and maintain this program.
My question, General Alexander, is -- is to you and also perhaps to Mr. Joyce,
Several times in your testimony you referenced 9/11 and how -and I recall after September 11th there was a -- was a loud challenge to the intelligence community to do a better job of connecting the dots, be more aggressive, be -- you know, be more forward thinking, try to anticipate what's going to happen, think outside the box, all those cliches we heard at the time.
And as I see it, this is a very legitimate and legal response to that request.
I would ask you, General Alexander, or you, Mr. Joyce, I believe referenced the case, after September 11th where there was a phone interception from Yemen which enabled you to foil the New York Stock Exchange plot,
It's also my understanding that prior to 9/11, there was phone messages from Yemen which you did not have the capacity to follow through on which perhaps could have prevented the 9/11 attack.
Could either General Alexander or Mr. Joyce or both of you explain how the attack could have been prevented? Or if you believe it could have been prevented?
JOYCE: I don't know, Congressman, if the attack could have been prevented. What I can tell you is that is a tool that was not
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available to us at the time of 9/11. So when there was actually a call made from a known terrorist in Yemen to Khalid Mihdhar in San Diego, we did not have that tool or capability to track that call.
Now, things may have been different, and we will never know that, unfortunately.
So that is the tool that we're talking about today that we did not have at the time of 9/11.
Moving forward, as you mentioned about the -- the stock exchange, here we have a similar thing except this was under, again, the 702 program, where NSA tipped to us that a known extremist in Yemen was talking or conversing with an individual inside the United States, we later identified as Khalid Ouazzani.
And then we were able to go up on our legal authorities here in the United States on Ouazzani, who was in Kansas City and were able to identify two additional co-conspirators.
We found through electronic surveillance they were actually in the initial stages of plotting to bomb the New York Stock Exchange.
So, as -- to really summarize, as I mentioned before, all of these tools are important.
And as Congressman Schiff mentioned, we should have this dialogue. We should all be looking for ways, as you said, thinking outside the box of how to do our business.
But I sit here before you today humbly and say that these tools have helped us.
KING: General?
ALEXANDER: If I could, I think on Mihdhar case, Mihdhar was the terrorist -- the A.Q. terrorist from the 9/11 plot in California that was actually on American Airlines Flight 77 that crashed into the Pentagon -- what -- what we don't know going back in time is the phone call between Yemen and there, if we would have had the reasonable, articulable suspicion standard, so we'd have to look at that.
But assuming that we did, if we had the database that we have now with the business records FISA and we searched on that Yemen number and saw it was talking to someone this California, we could have then tipped that to the FBI.
Another step, and this an assumption, but let me play this out because we will never be able to go all the way back and redo all the figures from 9/11, but this is why some of these programs were put in was to help that.
Ideally going from Mihdhar, we would have been able to find the other teams, the other three teams in the United States and/or one in Germany or some other place.
So the ability to use the metadata from the business record FISA
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would have allowed us, we believe, to see some.
Now, so it's hypothetical. There are a lot of conditions that we can put -- that we could put on there. You'd have to have this right. You'd have to have the RAS right.
But we didn't have that ability. We couldn't connect the dots because we didn't have the dots.
And so, I think what we've got here is that one additional capability, one more tool to help us work together as a team to stop future attacks. And as -- as Sean has laid out, you know, when you look at this, you know, the New York City -- two and others, I think from my perspective, you know, those would have been significant events for our nation. And so, I think what we've jointly done with Congress is helped set this program up correctly.
KING: I'll just close, General, by saying in your opening statement you said that you'd rather be testifying here today on this issue rather than explaining why another 9/11 happened.
So I want to thank you for your service in preventing another 9/11 and there's the Zazi case. And I know some -- you're very close with your knowledge of that. And I want to thank all of you for the effort that was done to prevent that attack.
Mr. Chairman, I yield back.
ROGERS: Just a couple of clarifying things here to -- to wrap it up.
Mr. Joyce, you've been in the FBI for 26 years. You've conducted criminal investigations as well.
Sometimes you get a simple tip that leads to a broader investigation. Is that correct?
JOYCE: That is correct, Chairman.
ROGERS: And so, without that initial tip, you might not have found the other very weighty evidence that happened subsequent to that tip. Is that correct?
JOYCE: Absolutely.
ROGERS: So, in the case of -- of Malalin (ph) in 2007, the very fact that under the business 215 records, there was a simple tip that was, we have someone that is known with ties to Al Qaida's east African network calling a phone number in San Diego. That's really all you got, was a phone number in San Diego. Is that correct?
JOYCE: That is correct.
ROGERS: And -- and according to -- in the unclassified report that tip ultimately led to the FBI's opening of a full investigation that resulted in the February 2013 conviction. Is that correct?
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JOYCE: Yes, it is, Chairman.
ROGERS: So without that first tip, you would have had -- you -you weren't up on his electronics communications. You didn't really -- you were not -- he was not a subject of any investigation prior to that tip from the National Security Agency.
JOYCE: No, actually, he was the subject to a prior investigation...
ROGERS: That was closed.
JOYCE: ... several years earlier that was closed...
ROGERS: Right.
JOYCE: ... because we could not find any connection to terrorism.
ROGERS: Right.
JOYCE: And then, if we did not have the tip from NSA, we would not have been able to reopen...
ROGERS: Reopen the case. But at the time, you weren't investigating him?
JOYCE: Absolutely not. It was based on... (CROSSTALK)
ROGERS: Right, and when they -- when they dipped that number into the -- to the business records, the preserved business records from the court order -- they dipped a phone number in, and a phone number came out in San Diego. Did you know who that person was when they gave you that phone number?
JOYCE: No, we did not. So we had to serve legal process to identify that subscriber and then corroborate it. And then we later went up on electronic surveillance with an order through the FISC.
ROGERS: And -- and when you went up on the electronic surveillance, you used a court order, a warrant...
JOYCE: That is correct.
ROGERS: ... a subpoena? What did you use?
JOYCE: We used a FISA court order.
ROGERS: All right. So you had to go back. You had to prove a standard of probable cause to go up on this individual's phone number. Is that correct?
JOYCE: That's right. And as been mentioned, hopefully several times today, anyone inside the United States, a U.S. person, whether they're inside or outside, we need a specific court order regarding
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that person.
ROGERS: All right.
And Mr. Cole, I just -- just for purposes of explanation, if you were going to have a -- an FBI agent came to you for an order to preserve business records, do they need a court order? Do they need a warrant for that in a criminal investigation?
COLE: No, they do not. You can just get a grand jury's subpoena, and, separate from preserving it, you can acquire them with a grand jury subpoena. And you don't need to go to a court to do that.
ROGERS: Right, so that is a lower-legal standard in order to obtain information on a U.S. citizen on a criminal matter.
COLE: That's correct, Mr. Chairman.
ROGERS: So the -- when we -- and I think this is an important point to make. When we -- the system is set up on this foreign collection -- and I argue we need this high standard because it is in a classified -- or used to be in a classified setting -- you need to have this high standard. So can you describe the difference?
If I were going to do a criminal investigation -- getting the same amount of information the -- the legal standard would be much lower if I were working an embezzlement case in Chicago than trying to catch a counter-terrorist -- counter -- excuse me, a terrorist operating overseas trying to get back into the United States to conduct a plot.
COLE: Some of the standards might be similar, but the process that you have to go through is much greater in the FISA context. You actually have to go to a -- a court, the FISA court ahead of time and set out facts that will explain to the court why this information is relevant to the investigation that you're doing, why it's a limited type of investigation that is allowed to be done under the statute and under the rules. And then the court has to approve that ahead of time, along with all of the rules and restrictions about how you can use it, how you can access it, what you can do with it, and who you can disseminate it to.
There is a much different program that goes on in a normal grand jury -- situation. You have restrictions on who you can disseminate to under secrecy grounds, but even those are much broader than they would be under the FISA grounds.
ROGERS: Right.
COLE: And you don't need a court ahead of time.
ROGERS: So -- so, in total, this is a much more overseen -- and, by the way, on a criminal embezzlement case in Chicago, you wouldn't brief that to Congress, would you?
COLE: No, we would not, not as a normal course.
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ROGERS: Yeah, and so you have a whole nother layer of legislative oversight on this particular program. And, again, I argue the necessity of that because it is a -- as I said, used to be a classified program of which you additional oversight. You want members of the legislature making sure we're (ph) on track that you don't necessarily need in a criminal matter domestically.
COLE: That's correct. In a normal criminal embezzlement case in Chicago, you would have the FBI and the Justice Department involved. And that's about it.
ROGERS: Right.
COLE: In this, you've got the National Security -- Agency. You've got the ODNI. You've got the inspectors general. You've got the Department of Justice. You have the court monitoring what you're doing, if there's any mistakes that were made. You have Congress being briefed on a regular basis. There is an enormous amount of oversight in this compared to a grand jury situation. Yet the records that can be obtained are of the same kind.
ROGERS: Right, thanks. And I just want a couple of clarifying questions.
Mr. Joyce, if you will, does China have an -- an adversarial intelligence service directed at the United States?
JOYCE: Yes, they do.
ROGERS: Do they perform economic espionage activities targeted at U.S. companies in the United States?
JOYCE: Yes, they do.
ROGERS: Do they conduct espionage activities toward military and intelligent services, both here and abroad, that belong to the United States of America?
JOYCE: Yes, they do.
ROGERS: Do they target policy makers and decision makers, Department of State and other -- other policy makers that might engage in foreign affairs when it comes to the United States?
JOYCE: Yes.
ROGERS: Would you -- how would you rate them as an adversarial intelligence service given the other intelligence services that we know are adversarial, the Russians, the Iranians, the others?
JOYCE: They are one of our top adversaries.
ROGERS: Yeah. And you have had a string of successes recently in prosecutions for Chinese espionage activities in the United States. Is that correct?
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JOYCE: That is correct.
ROGERS: And so, that has been both economic, and, if I understand it, as well as the military efforts. So they've been very aggressive in their espionage activities toward the United States. Is it -- would you -- is that a fair assessment?
JOYCE: I think they have been very aggressive against United States interests.
ROGERS: General Alexander, do they -- how would you describe, in an unclassified way, the Chinese cyber efforts for both espionage and their military capability to conduct disruptive attacks toward the United States?
ALEXANDER: Very carefully.
(LAUGHTER)
With a lot of legal oversight. I -- I think one of the things that -- you know, it's public knowledge out there about the cyber activities that we're seeing. But I also think that what's missing, perhaps, in this conversation with the Chinese is what's -- what's acceptable practices here. And I think the president has started some of that in the discussions with the -- the new president of China.
And I think that's some of the stuff that we actually have to have. This need not be an adversarial relationship. I think our country does a lot of business with China, and we need to look at, how can we improve the relations with China in such a way that both our countries benefit? Because we can. And I think that's good for everybody.
What concerns me is now this program and what we're talking about with China, as got -- I think we've got to solve this issue with China and then look at ways to move -- to move forward. And I think we do have to have that discussion on cyber. What is -- what are the right standards, have that discussion both privately and publicly. And it's not just our country. It's all the countries of the world, as well as China.
ROGERS: All right, and I -- I appreciate you drawing the line, but would you say that China engages in economic -- cyber economic espionage against intellectual property to steal intellectual property in the United States?
ALEXANDER: Yes.
ROGERS: Would you argue that they engage in cyber activities to steal both military and intelligence secrets of the United States?
ALEXANDER: Yes.
ROGERS: I -- I just -- I think this is important that we put it in context for several things that I think Americans want to know about the relationship between Mr. Snowden and -- and where he finds home today, and that we know that we're doing a full investigation
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into possible connections with any nation state who might take advantage of this activity.
And the one thing I disagree with Mr. Litt today, that they haven't seen anything of any changes. And I would dispute that based on information I've seen recently and would ask anyone to comment. Do you believe that Al Qaida elements have -- have just historically, when they've been -- when issues have been disclosed, changed the way they operate to target both soldiers abroad in their terroristplotting activities, movements, financing, weaponization, and training.
LITT: To -- to be clear, what I -- what I intended to say -- and if I wasn't clear, I apologize -- was we know that they've seen this. We know they've commented on it. What we don't know yet is over the long term what impact it's going to have on our collection capabilities. But you're absolutely right. We know they watch us. And they -- they -- they modify their behavior based on what they learn.
ROGERS: And -- and we also know that in some cases in certain countries they have modified their behavior, including the way they target U.S. troops based on certain understandings of communications. Is that correct?
LITT: I think that's -- that's correct.
ROGERS: I'll guarantee it's absolutely correct. And that's what's so concerning about this.
I do appreciate your being here. I know how difficult it is to come and talk.
General, did you want to say something before...
(CROSSTALK)
ALEXANDER: Yeah, I -- I wanted to say, if I could, just a couple things, because they didn't come up in -- in this testimony. But, first, thanks to this committee, the administration and others, in the summer of 2009 we set up the director -- Directorate of Compliance. Put some of our best people in it to ensure that what we're doing is exactly right. And this committee was instrumental in helping us set that up. So that's one point.
When we talk about oversight and compliance, people think it's just once in a while, but there was rigorous actions by you and this entire committee to set that up.
The second is, in the open press there's this discussion about pattern analysis -- they're out there doing pattern analysis on this. That is absolutely incorrect. We are not authorized to go into the data, nor are we data mining or doing anything with the data other than those queries that we discuss, period. We're not authorized to do it. We aren't doing it. There are no automated processes running in the background pulling together data trying to figure out networks.
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The only time you can do pattern analysis is, once you start the query on that query and where you go forward. You can't go in and try to bring up -- you know, I have four daughters and 15 grandchildren. I can't supervise them with this database. It is not authorized, and our folks do not do it.
And so that's some of the oversight and compliance you and the rest of the Oversight Committee see, but I think it's important for the American people to know that it's limited. In this case, for 2012, less than 300 selectors were looked at, and they had an impact in helping us prevent potential terrorist attacks, they contributed. And I think when you look at that and you -- you balance those two, that's pretty good.
ROGERS: And I do appreciate it. And I want to commend -- the folks from the NSA have always -- we've never had to issue a subpoena. All that information has always -- readily provided. You meet with us regularly. We have staff and investigators at the NSA frequently. We have an open dialogue when problems happen; we do deal with them in a classified way, in -- in a way I think that Americans would be proud that their elected representatives deal with issues.
And I'm not saying that there are some hidden issues out there; there are not.
I know this has been difficult to come and talk about very sensitive things in a public way. In order to preserve your good work and the work on behalf of all the patriots working to defend America, I still believe it was important to have a meeting where we could at least, in some way, discuss and reassure the level of oversight and redundancy of oversight on a program that we all recognize needed an extra care and attention and lots of sets of eyes. I hope today in this hearing that we've been able to do that.
I do believe that America has the responsibility to keep some things secret as we serve to protect this country. And I think you all do that well. And the darndest thing is that we may have found that it is easier for a systems analyst -- or a systems administrator to steal the information than it is for us to access the program in order to prevent a terrorist attack in the United States. And we'll be working more on those issues.
And we have had great dialogue about what's coming on some other oversight issues.
Again, thank you very, very much. Thank you all for your service. And I wish you all well today.
END
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 American Civil Liberties Union v. Clapper, --- F.Supp.2d ---- (2013)

2013 WL 6819708 United States District Court,
S.D. New York.
AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs, v.
James R. CLAPPER, et al., Defendants.
No. 13 Civ. 3994(WHP). | Dec. 27, 2013.
Synopsis Background: Non-profit civil rights and liberties organizations brought action seeking a declaratory judgment that the National Security Agency’s (NSA) telephony metadata collection exceeded the authority granted by the Foreign Intelligence Surveillance Act (FISA) and violated the First and Fourth Amendments. Organizations moved for a permanent injunction enjoining the government from continuing the collection, and the government moved to dismiss.

review metadata related to their calls was insufficient to establish a violation of First Amendment associational rights.
Plaintiffs’ motion denied; defendant’s motion granted.
Attorneys and Law Firms
Jameel Jaffer, Esq., Alex A. Abdo, Esq., Brett M. Kaufman, Esq., Patrick C. Toomey, Esq., Catherine N. Crump, Esq., American Civil Liberties Union, Arthur N. Eisenberg, Esq., Christopher T. Dunn, Esq., New York Civil Liberties Union, New York, NY, Laura Donohue, Esq., Georgetown Law, Bethesda, MD, for Plaintiffs.
David S. Jones, Esq., Stuart F. Delery, Esq., Marcia Berman, Esq., James J. Gilligan, Esq., Bryan Dearinger, Esq., Tara M. La Morte, Esq., Christopher B. Harwood, Esq., John D. Clopper, Esq., U.S. Attorney’s Office, S.D.N.Y., New York, NY, for Defendants.
Opinion

Holdings: The District Court, William H. Pauley III, J., held that:
[1] government’s collection of metadata related to the organizations’ calls constituted an actual injury sufficient to give the organizations’ standing;
[2] Administrative Procedure Act’s (APA) waiver of sovereign immunity did not apply to FISA statute allowing the collection of metadata;
[3] organizations were precluded from bringing statutory cause of action challenging FISA statute allowing the collection of metadata;
[4] FISA did not preclude organizations from bringing constitutional claims;
[5] collection of virtually all telephony metadata was authorized by FISA;
[6] NSA’s telephony metadata collection program did not violate the Fourth Amendment; and
[7] organizations’ speculative fear that government would

MEMORANDUM & ORDER
WILLIAM H. PAULEY III, District Judge:
*1 The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.
Prior to the September 11th attacks, the National Security Agency (“NSA”) intercepted seven calls made by hijacker Khalid al-Mihdhar, who was living in San Diego, California, to an al-Qaeda safe house in Yemen. The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar’s telephone number identifier. Without that identifier, NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States. Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau of Investigation (“FBI”) of the fact that al-Mihdhar was
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calling the Yemeni safe house from inside the United States.1
The Government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world. It launched a number of counter-measures, including a bulk telephony metadata collection program—a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data.
This blunt tool only works because it collects everything. Such a program, if unchecked, imperils the civil liberties of every citizen. Each time someone in the United States makes or receives a telephone call, the telecommunications provider makes a record of when, and to what telephone number the call was placed, and how long it lasted. The NSA collects that telephony metadata. If plumbed, such data can reveal a rich profile of every individual as well as a comprehensive record of people’s associations with one another.
The natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government’s bulk telephony metadata collection program. Edward Snowden’s unauthorized disclosure of Foreign Intelligence Surveillance Court (“FISC”) orders has provoked a public debate and this litigation. While robust discussions are underway across the nation, in Congress, and at the White House, the question for this Court is whether the Government’s bulk telephony metadata program is lawful. This Court finds it is. But the question of whether that program should be conducted is for the other two coordinate branches of Government to decide.
The American Civil Liberties Union, the American Civil Liberties Union Foundation, the New York Civil Liberties Union, and the New York Civil Liberties Foundation (collectively, “the ACLU” or Plaintiffs) bring this action challenging the legality of the NSA’s telephony metadata collection program. James R. Clapper, the Director of National Intelligence; Keith B. Alexander, the Director of NSA and Chief of the Central Security Service; Charles T. Hagel, the Secretary of Defense; Eric H. Holder, the Attorney General of the United States; and James B. Comey, the Director of the FBI (collectively, “Defendants” or the “Government”) are Executive Branch Department and Agency heads involved with the bulk telephony metadata collection program. The ACLU moves for a preliminary injunction and the Government moves to dismiss the complaint. For the reasons that

follow, this Court grants the Government’s motion to dismiss and denies the ACLU’s motion for a preliminary injunction.
BACKGROUND
I. Foreign Intelligence Surveillance Act *2 In 1972, the Supreme Court recognized that “criminal surveillances and those involving domestic security” are distinct, and that “Congress may wish to consider protective standards for the latter which differ from those already prescribed for [criminal surveillances].” United States v. U.S. Dist. Court for East. Dist. of Mich. (Keith), 407 U.S. 297, 322, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). “Although the Keith opinion expressly disclaimed any ruling ‘on the scope of the President’s surveillance power with respect to the activities of foreign powers,’ it implicitly suggested that a special framework for foreign intelligence surveillance might be constitutionally permissible.” Clapper v. Amnesty Int’l USA, ––– U.S. ––––, 133 S.Ct. 1138, 1143, 185 L.Ed.2d 264 (2013) (quoting Keith, 407 U.S. at 322–23, 92 S.Ct. 2125) (internal citations omitted).
In 1975, Congress organized the Senate Select Committee to Study Governmental Operations With Respect to Intelligence Activities, known as the “Church Committee,” to investigate and report on the Government’s intelligence-gathering operations. The Church Committee concluded that the Executive Branch had engaged in widespread surveillance of U.S. citizens and that Congress needed to provide clear boundaries for foreign intelligence gathering.
In 1978, Congress did just that. Legislating against the backdrop of Keith and the Church Committee findings, Congress enacted the Foreign Intelligence Surveillance Act of 1978 (FISA). Pub. L. No. 95–511, 92 Stat. 1783 (codified as amended at 50 U.S.C: §§ 1801 to 1885c). FISA requires the Government to obtain warrants or court orders for certain foreign intelligence surveillance activities and created the FISC to review those applications and grant them if appropriate.
[1] While the FISC is composed of Article III judges, it operates unlike any other Article III court. Proceedings in Article III courts are public. And the public enjoys a “general right to inspect and copy public records and documents, including judicial records and documents.”
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American Civil Liberties Union v. Clapper, --- F.Supp.2d ---- (2013)

Nixon v. Warner Comm’cns, Inc., 435 U.S. 589, 597–98, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (footnotes omitted). “The presumption of access is based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir.2006) (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir.1995)); see also Standard Chartered Bank Int’l (Americas) Ltd. v. Calvo, 757 F.Supp.2d 258, 259–60 (S.D.N.Y.2010).2
But FISC proceedings are secret. Congress created a secret court that operates in a secret environment to provide judicial oversight of secret Government activities. See 50 U.S.C. § 1803(c) (“The record of proceedings [in the FISC] shall be maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of Central Intelligence.”). While the notion of secret proceedings may seem antithetical to democracy, the Founding Fathers recognized the need for the Government to keep secrets. See U.S. Const. Art. I § 5, cl. 3. (“Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy.”)
*3 Congress has long appreciated the Executive’s paramount need to keep matters of national security secret. See, e.g., 5 U.S.C. § 552(b)(1)(A) (first enacted July 4, 1966, Pub. L. 89–487) (The Executive is not required to disclose “matters that are specifically authorized ... by an Executive order to be kept secret in the interest of national defense” under the Freedom of Information Act). Indeed, “[s]ecrecy and dispatch” are essential ingredients to the President’s effective discharge of national security. See The Federalist No. 70, at 472 (Alexander Hamilton) (J. Cooke ed., 1961). FISC is an exception to the presumption of openness and transparency—in matters of national security, the Government must be able to keep its means and methods secret from its enemies.
In 1998, Congress amended FISA to allow for orders directing common carriers, public accommodation facilities, storage facilities, and vehicle rental facilities to provide business records to the Government. See Intelligence Authorization Act for Fiscal Year 1999, Pub. L. 105–272, § 602, 112 Stat. 2396, 2410 (1998). These amendments required the Government to make a showing of “specific and articulable facts giving reason to believe

that the person to whom the records pertain is a foreign power or an agent of a foreign power.” § 602.
After the September 11th attacks, Congress expanded the Government’s authority to obtain additional records. See USA PATRIOT Act of 2001, Pub. L. 107–56, § 215, 115 Stat. 272, 287 (2001) (codified as amended at 50 U.S.C. § 1861) (“section 215”); Section 215 allows the Government to obtain an order “requiring the production of any tangible things (including books, records, papers, documents, and other items),” eliminating the restrictions on the types of businesses that can be served with such orders and the requirement that the target be a foreign power or their agent. The Government invoked this authority to collect virtually all call detail records or “telephony metadata.” See infra, Part II. See generally David S, Kris, On the Bulk Collection of Tangible Things, 1 Lawfare Res. Pap. Ser. 4 (2013).
Bulk telephony metadata collection under FISA is subject to extensive oversight by all three branches of government. It is monitored by the Department of Justice, the intelligence Community, the FISC, and Congress. See Administration White Paper, Bulk Collection of the Telephony Metadata Under Section 215 of the USA Patriot Act 3 (Aug. 9, 2013) [hereinafter “White Paper”]. To collect bulk telephony metadata, the Executive must first seek judicial approval from the FISC. 50 U.S.C. § 1861. Then, on a semi-annual basis, it must provide reports to the Permanent Select Committee on Intelligence of the House of Representatives, the Select Committee on Intelligence of the Senate, and the Committees on the Judiciary of the House of Representatives and the Senate. 50 U.S.C. § 1871(a). Those reports must include: (1) a summary of significant legal interpretations of section 215 involving matters before the FISC; and (2) copies of all decisions, orders, or opinions of the FISC that include significant construction or interpretation of section 215. 50 U.S.C. § 1871(c).
*4 Since the initiation of the program, a number of compliance and implementation issues were discovered and self-reported by the Government to the FISC and Congress.
In accordance with the [FISA] Court’s rules, upon discovery, these inconsistencies were reported as compliance incidents to the FISA Court, which ordered appropriate remedial action. The incidents, and the Court’s responses, were also
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reported to the Intelligence Committees in great detail. The Committees, the Court, and the Executive Branch have responded actively to the incidents. The Court has imposed additional safeguards. In response to compliance problems, the Director of NSA also ordered ‘end-to-end’ reviews of the section 215 ... programs, and created a new position, the Director of Compliance, to help ensure the integrity of future collection.
Report on the NSA’s Bulk Collection Programs for USA PATRIOT Act Reauthorization (ECF No. 33–5) [hereinafter “NSA Report”]. The NSA addressed these problems. For example, in 2011, FISC Judge Bates engaged in a protracted iterative process with the Government—that included numerous written submissions, meetings between court staff and the Justice Department, and a hearing—over the Government’s application for reauthorization of another FISA collection program. That led to a complete review of that program’s collection and querying methods. See generally Mem. Op. [REDACTED], No. [REDACTED] (F.I.S.C. Oct. 3, 2011) (Bates, J.) available at http:// icontherecord.tumblr.com/tagged/declassified.3
In August 2013, FISC Judge Eagan noted, “[t]he Court is aware that in prior years there have been incidents of non-compliance with respect to the NSA’s handling of produced information. Through oversight by this Court over a period of months, those issues were resolved.” In re Application of the Fed. Bureau of Investigation for an Order Requiring the Prod. of Tangible Things from [REDACTED ], Case No. BR 13–109, amended slip op. at 5 n. 8, 2013 WL 5741573 (F.I.S.C., Aug. 29, 2013) (released in redacted form Sept. 17, 2013). And Congress repeatedly reauthorized the statute.
In recognition of the broad intelligence gathering capability Congress granted to the Executive Branch, section 215 included a sunset provision terminating that authority at the end of 2005. But the war on terror did not end. Congress has renewed section 215 seven times.4 In 2006, Congress amended section 215 to require the Government to provide “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.” USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109–177, § 106, 120 Stat. 192, 196

(2006) (codified as amended at 50 U.S.C. § 1861).
II. NSA Bulk Telephony Metadata Collection On June 5, 2013, The Guardian published a then-classified FISC “Secondary Order” directing Verizon Business Network Services to provide the NSA “on an ongoing daily basis ... all call detail records or ‘telephony metadata’ ” for all telephone calls on its network from April 25, 2013 to July 19, 2013. See In re Application of the FBI for an Order Requiring the Prod. of Tangible Things From Verizon Bus. Network Servs., Inc. ex. rel. MCI Commc’n Servs., Inc. d/b/a Verizon Bus. Servs., No. BR 13–80, slip op. at 24 (F.I.S.C. Apr. 25, 2013) (“Secondary Order ”). “Telephony metadata” includes, as to each call, the telephone numbers that placed and received the call, the date, time, and duration of the call, other session-identifying information (for example, International Mobile Subscriber Identity number, International Mobile station Equipment Identity number, et cetera), trunk identifier, and any telephone calling card number. See Decl. of Teresa H. Shea, Director of the Signals Intelligence Directorate, NSA, dated Oct. 1, 2013, ¶ 15 (ECF No. 63); Secondary Order at 2. It does not include the content of any call, the name, address, or financial information of parties to the call, or any cell site location information. See Shea Decl. ¶ 15; Secondary Order at 2. In response to the unauthorized disclosure of the Secondary Order, the Government acknowledged that since May 2006, it has collected this information for substantially every telephone call in the United States, including calls between the United States and a foreign country and calls entirely within the United States. See Shea Decl. ¶ 13; White Paper at 3.
*5 The Secondary Order was issued pursuant to a “Primary Order ” setting out certain “minimization” requirements for the use of telephony metadata. See In re Application of the FBI for an Order Requiring the Prod. of Tangible Things From [REDACTED ], No. BR 13–80, 2013 WL 5460137 (F.I.S.C. Apr. 25, 2013) (“Primary Order ”). The NSA stores the metadata in secure networks and access is limited to authorized personnel. Primary Order at 4–5. Though metadata for all telephone calls is collected, there are restrictions on how and when it may be accessed and reviewed. The NSA may access the metadata to further a terrorism investigation only by “querying” the database with a telephone number, or “identifier,” that is associated with a foreign terrorist organization. Shea Decl. ¶ 19; Primary Order at 6–9. Before the database may be queried, a high-ranking NSA official or one of twenty specially-authorized officials
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must determine there is “reasonable articulable suspicion” that the identifier is associated with an international terrorist organization that is the subject of an FBI investigation. Shea Decl. ¶¶ 20, 31; Primary Order at 7. The “reasonable articulable suspicion” requirement ensures an “ordered and controlled” query and prevents general data browsing. Shea Decl. ¶ 20. An identifier reasonably believed to be used by a U.S. person may not be regarded as associated with a terrorist organization solely on the basis of activities protected by the First Amendment. Shea Decl. ¶¶ 20, 31; Primary Order at 9. An identifier used to query telephony metadata is referred to as a “seed.” Shea Decl. ¶ 20.
The results of a query include telephone numbers that have been in contact with the seed, as well as the dates, times, and durations of those calls, but not the identities of the individuals or organizations associated with responsive telephone numbers. Shea Decl. ¶ 21. The query results also include second and third-tier contacts of the seed, referred to as “hops.” Shea Decl. ¶ 22. The first “hop” captures telephony metadata for the set of telephone numbers in direct contact with the seed. The second “hop” reaches telephony metadata for the set of telephone numbers in direct contact with any first “hop” telephone number. The third “hop” corrals telephony metadata for the set of telephone numbers in direct contact with any second “hop” telephone number. Shea Decl. ¶ 22. The NSA takes this information and determines “which of the results are likely to contain foreign intelligence information, related to counterterrorism, that would be of investigative value to FBI (or other intelligence agencies).” Shea Decl. ¶ 26. They provide only this digest to the FBI. Moreover, metadata containing information concerning a U.S. person may only be shared outside the NSA if an official determines “that the information was related to counterterrorism information and necessary to understand counterterrorism information or to assess its importance.” Primary Order at 16–17; see also Shea Decl. ¶¶ 28, 32.
*6 Through this sifting, “only a very small percentage of the total data collected is ever reviewed by intelligence analysts.” Shea Decl. ¶ 5. In 2012, fewer than 300 identifiers were queried. Shea Decl. ¶ 24. Because each query obtains information for contact numbers up to three hops out from the seed, the total number of responsive records was “substantially larger than 300, but ... still a very small percentage of the total volume of metadata records.” Shea Decl. ¶ 24. Between May 2006 and May 2009, the NSA provided the FBI and other agencies with 277 reports containing approximately 2,900 telephone

numbers. Shea Decl. ¶ 26.
III. Plaintiffs’ Claims Plaintiffs filed this lawsuit on June 11, 2013, less than a week after the unauthorized disclosure of the Secondary Order. The ACLU, ACLU Foundation, NYCLU, and NYCLU Foundation are “non-profit organizations that engage in public education, lobbying, and pro bono litigation upholding the civil rights and liberties guaranteed by the Constitution.” Compl. ¶ 24 (ECF No. 1). The ACLU and ACLU Foundation are Verizon subscribers and their telephony metadata is therefore subject to the Secondary Order. Compl. ¶¶ 28, 35. The NYCLU was a Verizon subscriber until early April 2013. Compl. ¶ 29. The NYCLU and NYCLU Foundation alleges that their metadata was collected under a previous order before the expiration of its Verizon contract. Compl. ¶ 3, 35. The ACLU and ACLU Foundation are also customers of Verizon Wireless and allege that similar orders were provided to Verizon Wireless, allowing the Government to obtain information concerning calls placed or received on the mobile telephones of ACLU employees. Compl. ¶¶ 28, 35. 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. See Shea Decl. ¶ 13; White Paper at 3.
The Plaintiffs’ employees routinely communicate by telephone with each other as well as with journalists, clients, legislators, and members of the public. The Plaintiffs’ assert that “their” telephone records “could readily be used to identify those who contact Plaintiffs ... and is likely to have a chilling effect.” Compl. ¶ 35. The Plaintiffs’ seek a declaratory judgment that the NSA’s metadata collection exceeds the authority granted by section 215 and violates the First and Fourth Amendments, and it also seeks a permanent injunction enjoining the Government from continuing the collection. Compl. ¶¶ 36–38.
The Government moves to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of standing and failure to state a claim. The ACLU moves under Rule 65 for a preliminary injunction barring the Government from “collecting [Plaintiffs’] call records” during the pendency of this action, requiring it to quarantine “all of [Plaintiffs’] call records [it] already collected,” and enjoining the Government from querying metadata using any identifier associated with the
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Plaintiffs. Pls. Mot. For Prelim. Inj., dated Aug. 26, 2013 at 2 (ECF No. 26) [hereinafter “Pls. Mot.”].
DISCUSSION
I. Standing *7 [2] [3] “[N]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (internal quotation marks and alterations omitted); see also Rothstein v. UBS AG, 708 F.3d 82, 89–90 (2d Cir.2013). The case-or-controversy requirement of Article III of the Constitution requires plaintiffs to establish their standing to sue. Amnesty Int’l, 133 S.Ct. at 1146 (citing Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)). “The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Amnesty Int’l, 133 S.Ct. at 1146. Therefore a court’s standing inquiry is “especially rigorous” when the merits of the case would require the court “to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Amnesty Int’l, 133 S.Ct. at 1147 (quoting Raines, 521 U.S. at 819–20, 117 S.Ct. 2312).
Article III standing requires an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743, 2752, 177 L.Ed.2d 461 (2010) (citing Horne v. Flores, 557 U.S. 433, 445, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009)). The ACLU alleges three sources of injury: (1) the Government’s mere collection of the metadata related to the ACLU’s telephone calls; (2) the “search” of metadata related to the ACLU’s telephone calls that results when any seed is queried because the NSA must check all of the metadata it has collected to identify all telephone numbers within three hops of the seed; and (3) the chilling effect on potential ACLU clients, whistleblowers, legislators, and others who will hesitate to contact the ACLU by telephone because they know the NSA will have a record that the call occurred.
Relying on the Supreme Court’s decision in Clapper v. Amnesty International, 133 S.Ct. 1138, the Government

contends that none of these alleged injuries are “concrete, particularized, and actual or imminent.” Monsanto, 130 S.Ct. at 2752. Amnesty International was a facial challenge to the FISA Amendments Act of 2008, which expanded the Government’s authority, to intercept the contents of communications for foreign intelligence purposes. The Amnesty International plaintiffs included attorneys and human rights organizations whose work required them to communicate with individuals overseas who might be targets of Government surveillance under the FISA Amendments Act, such as Guantanamo detainees. They alleged violations under the First and Fourth Amendments. While they offered no evidence their communications had in fact been intercepted, they asserted that there was an “objectively reasonable likelihood” their communications with foreign contacts would be intercepted in the future.5 They also argued that they suffered a present injury stemming from expensive precautions they took to avoid interception, such as traveling overseas to meet their clients in person instead of communicating electronically.
*8 The Supreme Court found the Amnesty International plaintiffs had suffered no injury in fact. The Court declined to assess standing based on an “ ‘objectively reasonable likelihood’ standard,” finding it “inconsistent with [the] requirement that ‘threatened injury must be certainly impending to constitute injury in fact.’ ” Amnesty Int’l, 133 S.Ct. at 1147 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)). The Amnesty International plaintiffs’ “highly speculative fear” that their communications would be intercepted was insufficient to confer standing. Amnesty Int’l, 133 S.Ct. at 1148. In so holding, the Supreme Court deconstructed the Amnesty International plaintiffs “highly attenuated chain of possibilities”:
(1) the Government will decide to target the communications of non-U.S. persons with whom [the plaintiffs] communicate;6
(2) in doing so, the Government will choose to invoke its authority under [the FISA Amendments Act] rather than utilizing another method of surveillance,
(3) the Article III judges who serve on the Foreign Intelligence Surveillance Court will conclude that the Government’s proposed surveillance procedures satisfy [the FISA Amendments Act’s] many safeguards and are consistent with the Fourth Amendment;
(4) the Government will succeed in intercepting the communications of respondents’ contacts; and
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(5) respondents will be parties to the particular communications that the Government intercepts.
Amnesty Int’l, 133 S.Ct. at 1148. “Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.” Amnesty Int’l, 133 S.Ct. at 1147 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 n. 2, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)) (emphasis in original).
The Amnesty International plaintiffs fared no better with their second alleged injury—costly precautions taken to avoid the risk of surveillance. In the Supreme Court’s view, that the plaintiffs “incurred certain costs as a reasonable reaction to a risk of harm” was insufficient “because the harm [plaintiffs sought] to avoid [was] not certainly impending.” Amnesty Int’l, 133 S.Ct. at 1151. “Because respondents do not face a threat of certainly impending interception under [the FISA Amendments Act], the costs that they have incurred to avoid surveillance are simply the product of their fear of surveillance ... such a fear is insufficient to create standing.” Amnesty Int’l, 133 S.Ct. at 1152 (citing Laird v. Tatum, 408 U.S. 1, 10–15, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972)).
Amidax Trading Group v. S.W.I.F.T. SCRL, 671 F.3d 140 (2d Cir.2011) is instructive. Amidax’s bank used SWIFT7 to transfer funds among financial institutions. After the September 11th attacks, the Office of Foreign Assets Control subpoenaed SWIFT’s records to monitor the financial transactions of suspected terrorists. Amidax sued SWIFT and the Government, alleging, inter alia, violations of the First and Fourth Amendments. The Second Circuit held that “[t]o establish an injury in fact—and thus, a personal stake in this litigation—[Amidax] need only establish that its information was obtained by the government.” Amidax, 671 F.3d at 147 (alteration in original) (emphasis added) (quoting Amidax Trading Grp. v. S.W.I.F.T. SCRL, 607 F.Supp.2d 500, 508 (S.D.N.Y.2009)). But because Amidax could not plausibly show the Government had collected its records, it lacked standing. Amidax, 671 F.3d at 148–49.
*9 [4] Here, there is no dispute the Government collected telephony metadata related to the ACLU’s telephone calls. Thus, the standing requirement is satisfied. See Amnesty Int’l, 133 S.Ct. at 1153 (noting that the case would be different if “it were undisputed that the Government was using [the FISA Amendments

Act]-authorized surveillance to acquire respondents’ communications and ... the sole dispute concerned the reasonableness of respondents’ preventive measures”); see also Klayman v. Obama, 957F.Supp.2d 1, –––– – ––––, 2013 WL 6571596, at *14–17 (D.D.C. Dec. 16, 2013) (finding standing for subscriber to challenge the NSA telephony metadata collection program).
The Government argues that merely acquiring an item does not implicate a privacy interest, but that is not an argument about Article III standing. Rather, it speaks to the merits of a Fourth Amendment claim. Cf. Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (“Rigorous application of the principle that the rights secured by the [Fourth] Amendment are personal, in place of a notion of “standing” will produce no additional situations in which evidence must be excluded.... [T]he better analysis ... focuses on the extent of particular [individual’s Fourth Amendment] rights, rather than on any theoretically separate, but invariably intertwined concept of standing.”) The ACLU is not obligated at the standing stage to prove the merits of its case, only that it has “a personal stake in this litigation.” Amidax, 671 F.3d at 147. Because the ACLU has alleged an actual injury grounded in the Government’s collection of metadata related to its telephone calls, it has standing.
II. Statutory Claim
A. Sovereign Immunity [5] [6] The United States, as sovereign, is immune from suit unless it unequivocally consents to being sued. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980); see also Price v. United States, 174 U.S. 373, 375–76, 19 S.Ct. 765, 43 L.Ed. 1011 (1899) (“It is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it.”). Section 702 of the Administrative Procedure Act (“APA”) waives sovereign immunity for suits against the United States that, like this one, seek “relief other than money damages.” 5 U.S.C. § 702. The APA creates a “strong presumption that Congress intends judicial review of administrative action.” Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986).
[7] [8] Exceptions to the APA’s broad waiver are “construed narrowly and apply only if there is ‘clear and convincing evidence of legislative intention to preclude review.’ ” Nat. Res. Def. Council v. Johnson, 461 F.3d
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164, 171 (2d Cir.2006) (quoting Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 n. 4, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986)). But the presumption favoring judicial review, “like all presumptions used in interpreting statutes, may be overcome by specific language or specific legislative history that is a reliable indicator of congressional intent.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984). In particular, “the presumption favoring judicial review of administrative action may be overcome by inferences of intent drawn from the statutory scheme as a whole.” Block, 467 U.S. at 349, 104 S.Ct. 2450.
1. Section 702 Exception
*10 [9] Section 702 does not “confer[ ] authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” 5 U.S.C. § 702. This carve out ensures that a plaintiff cannot “exploit[ ] the APA’s waiver to evade limitations on suit contained in other statutes” because “[t]he waiver does not apply ‘if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought’ by the plaintiff.” Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians v. Patchak, ––– U.S. ––––, 132 S.Ct. 2199, 2204–05, 183 L.Ed.2d 211 (2012). Thus, “ ‘[w]hen Congress has dealt in particularity with a claim and [has] intended a specified remedy’ ... to be exclusive, that is the end of the matter; the APA does not undo the judgment.” Pottawatomi Indians, 132 S.Ct. at 2205 (alterations in original) (quoting Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 286 n. 22, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983)).
The PATRIOT Act reengineered various provisions of the Wiretap Act, the Stored Communications Act, and FISA. Section 223 of the PATRIOT Act amended the Wiretap Act and the Stored Communications Act to remove the United States as a party that could be sued by an aggrieved person under those statutes. Pub. L. No. 107–56 § 223, 115 Stat. 272 (2001) (amended 18 U.S.C. § 2520(a) and 18 U.S.C. § 2707(a) to insert “other than the United States”); Jewel v. Nat’l Sec. Agency, ––– F.Supp.2d ––––, ––––, 2013 WL 3829405, at *12 (N.D.Cal. July 23, 2013) (section 223 “explicitly deleted the United States from the provisions that permit an aggrieved person to sue for recovery and obtain relief, including ‘preliminary and other equitable or declaratory relief [with respect to the Wiretap Act and the Stored

Communications Act].’ ”). At the same time, section 223 created a limited right to sue the United States for money. damages for claims arising out of the Wiretap Act, the Stored Communications Act, and FISA. Specifically, part of section 223 was codified as Title 18, United States Code, Section 2712, titled “Civil actions against the United States” and is the “exclusive remedy against the United States for any claims within the purview of this section.” 18 U.S.C. § 2712(d). Section 2712 allows a plaintiff to recover money damages for any “willful violation” of the Wiretap Act, the Stored Communications Act, and three provisions of FISA: (1) electronic wiretap surveillance; (2) physical searches; and (3) pen registers or trap and trace devices. 18 U.S.C. § 2712(a).
The operation of section 223—excising non-damage suits from the Wiretap Act and the Stored Communications Act and designating section 2712 as the only avenue for a civil action under the Wiretap Act, the Stored Communications Act and certain FISA sections—shows Congress’s intent to permit only money damages suits under the limited circumstances delineated in section 2712. See Jewel, ––– F.Supp.2d at ––––, 2013 WL 3829405, at *12. It is unsurprising that section 2712 does not authorize monetary damage suits for section 215 violations. Congress’s concern was to provide redress for privacy violations where the Government took action to generate evidence—such as electronic eavesdropping, physical searches, or the installation of pen registers or trap and trace devices8—but provided no statutory cause of action when evidence was created solely in the ordinary course of business of a third party.
*11 [10] This interpretation of section 215 is buttressed by FISA’s overall statutory scheme: in contrast to other FISA surveillance statutes, section 215 does not authorize any action for misuse of the information obtained. Compare 50 U.S.C. § 1861 (use of information obtained from “tangible things” order not subject to redress under section 2712) with 50 U.S.C. § 1806(a) (use of information obtained from electronic surveillance actionable under section 2712); 50 U.S.C. § 1825(a) (same for physical searches); 50 U.S.C § 1845(a) (same for pen registers and trap and trace devices). Thus, Congress withdrew the APA’s waiver of sovereign immunity for section 215. See Pottawatomi Indians, 132 S.Ct. at 2204–05; see also Klayman, 957 F.Supp.2d at –––– n. 30, 2013 WL 6571596, at *12 n. 30; Jewel, ––– F.Supp.2d at ––––, 2013 WL 3829405, at *12.
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2. Section 701 Exception
[11] Section 701 of the APA withdraws the immunity waiver “to the extent the relevant statute ‘preclude[s] judicial review.’ ” Block, 467 U.S. at 345, 104 S.Ct. 2450 (alterations in original) (citing 5 U.S.C. § 701(a)(1)). “Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.” Block, 467 U.S. at 345, 104 S.Ct. 2450.
In Block, the Supreme Court held that a milk consumer’s challenge to milk market orders issued under the Agricultural Marketing Agreement Act was precluded under APA section 701(a)(1). 467 U.S. at 347, 104 S.Ct. 2450. As the Supreme Court explained, the Agricultural Marketing Agreement Act “contemplates a cooperative venture” between the Secretary of Agriculture, milk handlers, and milk producers. Block, 467 U.S. at 346, 104 S.Ct. 2450. For example, the Agricultural Marketing Agreement Act provides for “agreements among the Secretary, producers, and handlers, for hearings among them, and for votes by producers and handlers.” Block, 467 U.S. at 346–47, 104 S.Ct. 2450 (internal citations omitted). The Agricultural Marketing Agreement Act requires a handler to exhaust administrative remedies before it permitted any judicial review. Block, 467 U.S. at 346, 104 S.Ct. 2450. But the Agricultural Marketing Agreement Act was silent regarding milk consumers’ remedies.
[12] The Supreme Court found that silence, coupled with the statutory scheme, demonstrated that milk consumers’ claims were precluded. Although the Agricultural Marketing Agreement Act impacted consumer interests, the Court concluded that “the preclusion issue does not only turn on whether the interests of a particular class ... are implicated,” rather, it turns on whether “Congress intended for that class to be relied upon to challenge agency disregard of the law.” Block, 467 U.S. at 347, 104 S.Ct. 2450. The Court went on to find that “[i]n a complex scheme of this type, the omission of such a provision is sufficient reason to believe that Congress intended to foreclose consumer participation in the regulatory process.” Block, 467 U.S. at 347, 104 S.Ct. 2450. “[W]hen a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded.” Block, 467 U.S. at 349, 104 S.Ct. 2450.

*12 [13] The interplay between section 215 and FISA’s statutory scheme compel the same conclusion here. Section 215 expressly provides that “[a] person receiving a production order may challenge the legality of that order by filing a petition with the pool [of FISC judges] established by section 1803(e)(1) of this title.” 50 U.S.C. § 1861(f)(2)(A)(i). It also prohibits any non-FISC modification of section 215 orders: “[a]ny production or nondisclosure order not explicitly modified or set aside consistent with this subsection shall remain in full effect.” 50 U.S.C. § 1861(f)(2)(D). Like the statutory scheme in Block, section 215 does not provide for any person other than a recipient of an order to challenge the orders’ legality or otherwise participate in the process. See Ark. Dairy Coop. Ass’n, Inc. v. U.S. Dep’t of Agr., 573 F.3d 815, 822 (D.C.Cir.2009) (In Block, “the Supreme Court did not concentrate simply on the presence or absence of an explicit right [to appeal a milk market order] but instead noted that in the ‘complex scheme’ of the Agricultural. Marketing Agreement Act, there was no provision for consumer participation of any kind.”).
The “cooperative venture” envisioned by FISA’s statutory scheme does not involve a mundane subject like milk pricing—it involves national security, a matter of vital importance. Congress’s intent to keep the means and methods of the Government’s intelligence gathering efforts secret from its enemies lies at the heart of FISA. Section 215 limits disclosure of orders to the narrowest group of individuals: (1) those to whom disclosure is necessary to comply with such an order; (2) an attorney to obtain legal advice on how to respond to the order; and (3) other persons as permitted by the Director of the FBI. See 50 U.S.C. § 1861(d).9 Section 215 does not just exclude a target from challenging an order, it precludes their participation in any way. See Ark. Dairy Coop. Ass’n, 573 F.3d at 822; Block, 467 U.S. at 346, 104 S.Ct. 2450.
Allowing any challenge to a section 215 order by anyone other than a recipient would undermine the Government’s vital interest in keeping the details of its telephone metadata collection program secret. It would also—because of the scope of the program—allow virtually any telephone subscriber to challenge a section 215 order. In Koretoff v. Vilsack, 614 F.3d 532, 537 (D.C.Cir.2010) the D.C. Circuit discussed such an absurdity that also cropped up in Block. The D.C. Circuit noted that “[a]llowing suit by consumers would mean virtually every American could challenge every agricultural marketing order.... [T]hat hard-to-fathom result was of great concern to the Supreme Court [in

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Block ] and informed its assessment of Congress’s intent on whether such suits were precluded by the [Agricultural Marketing Agreement Act].” Koretoff, 614 F.3d at 537. Allowing anyone but the recipient of section 215 orders to challenge them, or to do so anywhere outside the FISC, “would severely disrupt this complex and delicate administrative scheme.” Block, 467 U.S. at 348, 104 S.Ct. 2450. It is clear from the statutory scheme that Congress intended to preclude statutory causes of action such as this.
*13 [14] [15] Of course, this says nothing about the ACLU’s constitutional claims and it is hard to image a regime where they would be barred. A constitutional claim is precluded only on a “heightened showing” demonstrating a clear intent to do so. Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988). And there is no language in FISA expressly barring a constitutional claim. See Klayman, 957 F.Supp.2d at ––––, 2013 WL 6571596, at *13.
Regarding the statutory arguments, there is another level of absurdity in this case. The ACLU would never have learned about the section 215 order authorizing collection of telephony metadata related to its telephone numbers but for the unauthorized disclosures by Edward Snowden. Congress did not intend that targets of section 215 orders would ever learn of them. And the statutory scheme also makes clear that Congress intended to preclude suits by targets even if they discovered section 215 orders implicating them. It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets—including the means and methods of intelligence gathering—could frustrate Congress’s intent. To hold otherwise would spawn mischief: recipients of orders would be subject to section 215’s secrecy protocol confining challenges to the FISC, while targets could sue in any federal district court. A target’s awareness of section 215 orders does not alter the Congressional calculus. The ACLU’s statutory claim must therefore be dismissed.
B. Merits of the Statutory Claims [16] Even if the statutory claim were not precluded, it would fail. “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. NRDC, 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citing Munaf v. Geren, 553 U.S. 674,

689–90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008)); see also N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 486 (2d Cir.2013). Here, the ACLU fails to demonstrate a likelihood of success on the merits of their statutory claim.
1. Does the Stored Communications Act Prohibit the Collection of Telephony Metadata Under Section 215?
[17] Section 215 was enacted at the same time as an amendment to the Stored Communications Act. As amended, the Stored Communications Act prohibits communications providers from “knowingly divulg[ing]” a subscriber’s records to a government entity unless one of several exceptions are met. 18 U.S.C. § 2702(a)(3). These include when the Government obtains a warrant, an administrative subpoena, a grand jury or trial subpoena, or an order issued under § 2703(d). 18 U.S.C. § 2703(c). The Government may also obtain telephony metadata with a national security letter (“NSL”) issued under 18 U.S.C. § 2709.10 An NSL does not require judicial approval. The only hurdle is a certification from the Director of the FBI or his designee that the records sought “are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” 18 U.S.C. § 2709(b)(1).
*14 By contrast, section 215 allows the government an order “requiring the production of any tangible thing.” Prior to its amendment, the Government’s FISA authority to collect business records applied only to records from “common carrier[s], public accommodation. facilit[ies], physical storage facilit[ies], or vehicle facilit[ies].” 50 U.S.C. § 1862 (2001). Section 215 broadened the Government’s authority to seek records from additional businesses. See 50 U.S.C § 1861 (as amended, 2008). The only limitation—relevant here—on the types of records that may be obtained with a section 215 order are that they be obtainable with a grand jury subpoena. See 50 U.S.C. § 1861(c)(2)(D). Section 215 contains nothing suggesting that it is limited by the Stored Communications Act. Nevertheless, Plaintiffs argue that section 215 should be interpreted narrowly to avoid any conflict with the Stored Communications Act.
[18] But this court must attempt to interpret a statute “as a symmetrical and coherent regulatory scheme, and fit, if possible, all parts into an harmonious whole” and is “guided to a degree by common sense.” Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S.
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120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). Read in harmony, the Stored Communications Act does not limit the Government’s ability to obtain information from communications providers under section 215 because section 215 orders are functionally equivalent to grand jury subpoenas. Section 215 authorizes the Government to seek records that may be obtained with a grand jury subpoena, such as telephony metadata under the Stored Communications Act.
That conclusion is bolstered by common sense: to allow the Government to obtain telephony metadata with an NSL but not a section 215 order would lead to an absurd result. Unlike an NSL, a section 215 order requires a FISC judge to find the Government has provided a “statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant” to a foreign intelligence investigation. 50 U.S.C. § 1861(b)(2)(A). As FISC Judge Walton found,
[i]t would have been anomalous for Congress, in enacting the USA PATRIOT Act, to have deemed the FBI’s application of a ‘relevance’ standard, without prior judicial review, sufficient to obtain records subject to [the Stored Communications Act], but to have deemed the FISC’s application of a closely similar ‘relevance’ standard insufficient for the same purpose. This anomaly is avoided by interpreting sections 2702–2703 as implicitly permitting the production of records pursuant to a FISC order issued under [section 215].
In re Prod. of Tangible Things from [REDACTED ], No. BR 08–13, Supp. Op. at 5, 2008 WL 9475145 (F.I.S.C. Dec. 12, 2008) (emphasis in the original). Any dissonance between the two provisions melts away when the Stored Communications Act is read as permitting section 215 orders to obtain telephony metadata.
2. Did Congress Ratify The Government’s Interpretation of Section 215?
*15 [19] [20] [21] “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute

without change.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239–40, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) (quoting Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978)). “When ‘all (or nearly all) of the’ relevant judicial decisions have given a term or concept a consistent judicial gloss, we presume Congress intended the term or concept to have that meaning when it incorporated it into a later-enacted statute.” Bruesewitz v. Wyeth LLC, ––– U.S. ––––, 131 S.Ct. 1068, 1082, 1082, 179 L.Ed.2d 1 (2011) (citing Merck & Co. v. Reynolds, 559 U.S. 633, 130 S.Ct. 1784, 1802, 176 L.Ed.2d 582 (2010)). “The consistent gloss represents the public understanding of the term.” Bruesewitz, 131 S.Ct. at 1082.
The Government argues Congress was aware of the bulk metadata collection program and ratified it by reenacting section 215. Before Congress reauthorized FISA, no judicial opinion interpreting relevance was public, which was in line with Congress’s design. Congress passed FISA to engraft judicial and congressional oversight onto Executive Branch activities that are most effective when kept secret. To conduct surveillance under section 215, the Executive must first seek judicial approval from the FISC. See 50 U.S.C. § 1861. Then, on a semi-annual basis, it must provide reports to the Permanent Select Committee on Intelligence of the House of Representatives, the Select Committee on Intelligence of the Senate, and the Committees on the Judiciary of the House of Representatives and the Senate. 50 U.S.C. § 1871. Those Congressional reports must include: (1) a summary of significant legal interpretations of section 215 involving matters before the FISC; and (2) copies of all decisions, orders, or opinions of the FISC that include significant construction or interpretation of section 215. 50 U.S.C. § 1871.
The Congressional reports are not public and are submitted “in a manner consistent with the protection of the national security,” namely, in classified, secret proceedings. 50 U.S.C. § 1871. Such Congressional proceedings are akin to application process for a section 215 order and the FISC opinions on those applications—they are all classified, secret proceedings. There is no doubt that the Congressional Committees responsible for oversight of this program knew about the FISC opinions and the Executive Branch’s interpretation of section 215. But what about the rest of Congress?
In 2010 and 2011, Congress reauthorized section 215 without making any changes.11 Prior to the 2010 reauthorization, the Executive Branch made available to all members of Congress a classified, five-page document
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discussing the bulk telephony metadata program. On February 23, 2010, Senators Feinstein and Bond wrote to their colleagues:
Members of the Select Committee on Intelligence have previously requested that the Executive Branch permit each Member of Congress access to information on the nature and significance of intelligence authority on which they are asked to vote. In response to these requests, the Attorney General and the Director of National Intelligence have provided a classified paper to the House and Senate Intelligence Committees on important intelligence collection made possible by authority that is subject to the approaching sunset, and asked for our assistance in making it available, in a secure setting, directly and personally to any interested Member.
*16 Letter from Sens. Feinstein & Bond to Colleagues (Feb. 23, 2010) (ECF No. 33–6). Representative Reyes addressed a similar letter to his House colleagues. See Letter from Rep. Reyes to Colleagues (Feb. 24, 2010) (ECF No. 33–7).
That classified document, which was made available prior to the vote for reauthorization and has now been declassified in part, informed the reader that “[section 215] orders generally require production of the business records ... relating to substantially all of the telephone calls handled by the [telecommunications] companies, including both calls made between the United States and a foreign country and calls made entirely within the United States.” NSA Report.
The following year, when section 215 was again scheduled to sunset, senators were informed of an updated classified document available for their review. See Letter from Sens. Feinstein & Chambliss to Colleagues (Feb. 8, 2011) (ECF No. 33–11). Apparently some Senators did review it,12 while other Members of Congress did not.13 The House Intelligence Committee did not make the document available to members of the House. Dozens of House members elected in 2010 therefore never had an opportunity to review the classified document. While this is problematic, the Executive Branch did what it was

required to do under the statutory scheme that Congress put in place to keep Congress informed about foreign intelligence surveillance.
And viewing all the circumstances presented here in the national security context, this Court finds that Congress ratified section 215 as interpreted by the Executive Branch and the FISC, when it reauthorized FISA. In cases finding ratification, it is fair to presume that Congress had knowledge of the statute’s interpretation. See Forest Grove Sch. Dist., 557 U.S. at 239–40, 129 S.Ct. 2484 (Congress is presumed to be aware of Supreme Court decision); Lorillard, 434 U.S. at 580–81, 98 S.Ct. 866 (Congress is presumed to be aware that “every court to consider the issue” has held there is a right to a jury trial in FLSA actions); Butterbaugh v. Dep’t of Justice, 336 F.3d 1332, 1342 (Fed.Cir.2003) (congressional awareness shown by “[e]xtensive hearings, repeated efforts at legislative correction, and public controversy”); cf. Comm’r of Internal Revenue v. Glenshaw Glass Co., 348 U.S. 426, 431, 75 S.Ct. 473, 99 L.Ed. 483 (1955) (declining to find ratification where there is not “the slightest affirmative indication that Congress ever had the [relevant] decision before it”).
3. Is Bulk Telephony Metadata Collection Permitted By Section 215?
[22] To obtain a section 215 order, the Government must show (1) “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation” and (2) that the item sought must be able to be “obtained with a subpoena duces tecum ... in aid of a grand jury investigation or with any other [court] order ... directing the production of records or tangible things.” 50 U.S.C. § 1861(b, c). The Government can obtain telephony metadata with grand jury subpoenas and other court orders. See 18 U.S.C. § 2703(c, d).
*17 [23] A grand jury subpoena permits the Government to obtain tangible things unless “there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.” United States v. R. Enters., Inc., 498 U.S. 292, 301, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991). The ACLU argues that the category at issue—all telephony metadata—is too broad and contains too much irrelevant information. That argument has no traction here. Because without all the data points, the Government cannot be certain it connected the
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pertinent ones. As FISC Judge Eagan noted, the collection of virtually all telephony metadata is “necessary” to permit the NSA, not the FBI, to do the algorithmic data analysis that allow the NSA to determine “connections between known and unknown international terrorist operatives.” In re Application of the Fed. Bureau of Investigation for an Order Requiring the Prod. of Tangible Things from [REDACTED ], amended slip op. at 22–23. And it was the FISC that limited the NSA’s production of telephony metadata to the FBI. While section 215 contemplates that tangible items will be produced to the FBI, FISC orders require that bulk telephony metadata be produced directly—and only—to the NSA. And the FISC forbids the NSA from disseminating any of that data until after the NSA has identified particular telephony metadata of suspected terrorists. Without those minimization procedures, FISC would not issue any section 215 orders for bulk telephony metadata collection. In re Application of the Fed. Bureau of Investigation for an Order Requiring the Prod. of Tangible Things from [REDACTED ], amended slip op. at 23.
[24] “Relevance” has a broad legal meaning. The Federal Rules of Civil Procedure allow parties to obtain discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed.R.Civ.P. 26(b)(1) (emphasis added). This Rule “has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund. Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 91 L.Ed. 451 (1947)). Tangible items are “relevant” under section 215 if they bear on or could reasonably lead to other matter that could bear on the investigation.
[25] [26] Under section 215, the Government’s burden is not substantial. The Government need only provide “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant.” 50 U.S.C. § 1861(b)(2)(A) (emphasis added). Because section 215 orders flow from the Government’s grand jury and administrative subpoena powers, see 50 U.S.C. § 1861, the Government’s applications are subject to deferential review. See R. Enters., Inc., 498 U.S. at 301, 111 S.Ct. 722 (upholding grand jury subpoena challenged on relevancy grounds unless “there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation”);

Nat’l Labor Relations Bd. v. Am. Med. Response, Inc., 438 F.3d 188, 193 (2d Cir.2006) (finding that for an administrative subpoena, “the agency’s appraisal of relevancy” to its investigation “must be accepted so long as it is not obviously wrong”). FISA applications for section 215 orders “are subject to ‘minimal scrutiny by the courts;’ both upon initial presentation and subsequent challenge.” United States v. Abu–Jihaad, 630 F.3d 102, 130 (2d Cir.2010) (quoting United States v. Duggan, 743 F.2d 59, 77 (2d Cir.1984)).
*18 [27] The concept of relevance in the context of an investigation does not require the Government to parse out irrelevant documents at the start of its investigation. Rather, it allows that Government to get a category of materials if the category is relevant. The question of the permissible scope is generally “variable in relation to the nature, purposes and scope of the inquiry.” Okla. Press Pub. Co. v. Walling, 327 U.S. 186, 209, 66 S.Ct. 494, 90 L.Ed. 614 (1946). Defining the reasonableness of a subpoena based on the volume of information to be produced would require the Government to determine wrongdoing before issuing a subpoena—but that determination is the primary purpose for a subpoena. See Okla. Press Pub. Co., 327 U.S. at 201, 66 S.Ct. 494 (noting that administrative subpoenas are authorized “to discover and procure evidence, not to prove a pending charge or complaint, but upon which to make one”). And in the context of a counterterrorism investigation, that after-the-attack determination would be too late.
Here, there is no way for the Government to know which particle of telephony metadata will lead to useful counterterrorism information.14 When that is the case, courts routinely authorize large-scale collections of information, even if most of it will not directly bear on the investigation. See In re Subpoena Duces Tecum, 228 F.3d 341, 350–51 (4th Cir.2000) (authorizing collection of 15,000 patient files); In re Grand Jury Proceedings: Subpoenas Duces Tecum, 827 F.2d 301 (8th Cir.1987) (authorizing collection of all wire transactions over $1,000 for a 14–month period at a particular Western Union office).
Any individual call record alone is unlikely to lead to matter that may pertain to a terrorism investigation. Approximately 300 seeds were queried in 2012 and only a “very small percentage of the total volume of metadata records” were responsive to those queries.” Shea Decl. ¶ 24. But aggregated telephony metadata is relevant because it allows the querying technique to be comprehensive. And NSA’s warehousing of that data
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allows a query to be instantaneous. This new ability to query aggregated telephony metadata significantly increases the NSA’s capability to detect the faintest patterns left behind by individuals affiliated with foreign terrorist organizations. Shea Decl. ¶¶ 46, 48. Armed with all the metadata, NSA can draw connections it might otherwise never be able to find.15
The collection is broad, but the scope of counterterrorism investigations is unprecedented. National security investigations are fundamentally different from criminal investigations. They are prospective—focused on preventing attacks—as opposed to the retrospective investigation of crimes. National security investigations span “long periods of time and multiple geographic regions.” Decl. of Robert J. Holley, FBI Acting Assistant Director of the Counterterrorism Division, dated Oct. 1, 2013, ¶ 18 (ECF No. 62). Congress was clearly aware of the need for breadth and provided the Government with the tools to interdict terrorist threats.
*19 Relying on In re Horowitz, the ACLU argues that the bulk telephony metadata collection program is overbroad because section 215 orders cover large volumes of irrelevant documents. Horowitz involved an investigation into financial crimes spanning borders and decades—and so the scope of the grand jury subpoena was necessary broad. In re Horowitz, 482 F.2d 72, 79–80 (2d Cir.1973). After noting that “the failure to limit the subpoena by subject matter is not necessarily fatal,” Judge Friendly narrowed the subpoena at issue to exclude categories documents that “have no conceivable relevance to any legitimate object of investigation by the federal grand jury.” Horowitz, 482 F.2d at 79–80. He was troubled, in particular, with a subpoena that “require[d] production of all documents contained in the files, without any attempt to define classes of potentially relevant documents or any limitations as to subject matter or time period.” Horowitz, 482 F.2d at 79. The Second Circuit’s exclusion of irrelevant categories of documents in Horowitz has no application here because telephony metadata is a category of relevant data. Any subpoena that seeks to obtain categories of documents will likely return irrelevant documents—but only that portion of a subpoena seeking an irrelevant category of documents should be quashed.
Similarly, the ACLU reliance on In re Grand Jury Subpoena Duces Tecum Dated November 15, 1993, 846 F.Supp. 11 (S.D.N.Y.1994) is misplaced. There, Judge Mukasey was asked to decide whether to quash a subpoena directing a party to produce computer storage devices, not categories of documents within them. Judge

Mukasey recognized that a “wider grand jury investigation into obstruction and related charges indeed justifies a commensurately broader subpoena” but cannot “justify a subpoena which encompasses documents completely irrelevant to its scope, particularly because the Government has acknowledged that relevant documents can be isolated through key-word searching.” In re Grand Jury Subpoena Duces Tecum Dated November 15, 1993, 846 F.Supp. at 13. Because the Government was unwilling to modify the subpoena, Judge Mukasey quashed it, concluding that “the subpoena at issue unnecessarily demands documents that are irrelevant to the grand jury inquiry.” In re Grand Jury Subpoena Duces Tecum Dated November 15, 1993, 846 F.Supp. at 13–14. Like In re Horowitz, this reasoning is no bar here because all telephony metadata is a relevant category of information.
III. Constitutional Claims [28] [29] That Congress precluded the ACLU’s statutory claims does not bar its constitutional ones. “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). To determine plausibility, courts follow a “two-pronged approach.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. “First, although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (internal punctuation omitted). Second, a court determines “whether the ‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’ ” Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.2010) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). On a motion to dismiss, courts may consider “facts stated on the face of the complaint, in the documents appended to the complaint or incorporated in the complaint by reference, and ... matters of which judicial notice may be taken.” Allen v. WestPoint–Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991).
*20 For the purposes of deciding the Government’s motion to dismiss, this Court does not consider the affidavits submitted in conjunction with the ACLU’s motion for a preliminary injunction. Chandler v. Coughlin, 763 F.2d 110, 113 (2d Cir.1985) (error to
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consider affidavits in support of preliminary injunction in ruling on motion to dismiss); see also MacDonald v. Safir, 206 F.3d 183, 191 n. 3 (2d Cir.2000).
A. Fourth Amendment [30] [31] The Fourth Amendment guarantees that all people shall be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “[T]he Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A “search” occurs for purposes of the Fourth Amendment when the Government violates a person’s “reasonable expectation of privacy.” Katz, 389 U.S. at 360–61, 88 S.Ct. 507 (Harlan, J., concurring); see also United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 950, 181 L.Ed.2d 911 (2012); Bond v. United States, 529 U.S. 334, 337, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000).
[32] In Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), the Supreme Court held individuals have no “legitimate expectation of privacy” regarding the telephone numbers they dial because they knowingly give that information to telephone companies when they dial a number. 442 U.S. at 742, 99 S.Ct. 2577. Smith ‘s bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties.16
Smith arose from a robbery investigation by the Baltimore police. Smith, 442 U.S. at 737, 99 S.Ct. 2577. Without a warrant, the police requested that the telephone company install a device known as a pen register, which recorded the numbers dialed from Smith’s home. Smith, 442 U.S. at 737, 99 S.Ct. 2577. After Smith’s arrest, he moved to suppress evidence derived from the pen register. Smith, 442 U.S. at 737, 99 S.Ct. 2577. Noting it had consistently “held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” Smith, 442 U.S. at 743–44, 99 S.Ct. 2577, the Court found that telephone customers have no subjective expectation of privacy in the numbers they dial because they convey that information to the telephone company knowing that the company has facilities to make permanent records of the numbers they dial. Smith, 442 U.S. at 742–43, 99 S.Ct. 2577.
[33] The privacy concerns at stake in Smith were far more individualized than those raised by the ACLU. Smith involved the investigation of a single crime and the collection of telephone call detail records collected by the telephone company at its central office, examined by the

police, and related to the target of their investigation, a person identified previously by law enforcement. See Smith, 442 U.S. at 737, 99 S.Ct. 2577. Nevertheless, the Supreme Court found there was no legitimate privacy expectation because “[t]elephone users ... typically know that they must convey numerical information to the telephone company; that the telephone company has facilities for recording this information; and that the telephone company does in fact record this information for a variety of legitimate business purposes.” Smith, 442 U.S. at 743, 99 S.Ct. 2577; see also, e.g., United States v. Reed, 575 F.3d 900, 914 (9th Cir.2009) (finding that because “data about the. ‘call origination, length, and time of call’ ... is nothing more than pen register and trap and trace data, there is no Fourth Amendment ‘expectation of privacy.’ ”) (citation omitted).
*21 The ACLU argues that analysis of bulk telephony metadata allows the creation of a rich mosaic: it can “reveal a person’s religion, political associations, use of a telephone-sex hotline, contemplation of suicide, addiction to gambling or drugs, experience with rape, grappling with sexuality, or support for particular political causes.” Decl. of Edward Felten, Professor of Computer Science and Public Affairs, Princeton University, ¶ 42 (ECF No. 27). But that is at least three inflections from the Government’s bulk telephony metadata collection. First, without additional legal justification—subject to rigorous minimization procedures—the NSA cannot even query the telephony metadata database. Second, when it makes a query, it only learns the telephony metadata of the telephone numbers within three “hops” of the “seed.” Third, without resort to additional techniques, the Government does not know who any of the telephone numbers belong to. In other words, all the Government sees is that telephone number A called telephone number B. It does not know who subscribes to telephone numbers A or B. Further, the Government repudiates any notion that it conducts the type of data mining the ACLU warns about in its parade of horribles.17
The ACLU also argues that “[t]here are a number of ways in which the Government could perform three-hop analysis without first building its own database of every American’s call records.” Supp. Decl. of Edward Felten, ¶ 6 (ECF No. 68–1). That has no traction. At bottom, it is little more than an assertion that less intrusive means to collect and analyze telephony metadata could be employed. But, the Supreme Court has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.” City of Ontario, Cal. v. Quon, 560 U.S.
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746, 130 S.Ct. 2619, 2632, 177 L.Ed.2d 216 (2010) (citing Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 2396, 132 L.Ed.2d 564 (1995)). That judicial-Monday-morning-quarterbacking “could raise insuperable barriers to the exercise of virtually all search-and-seizure powers” because judges engaging in after-the-fact evaluations of government conduct “can almost always imagine some alternative means by which the objectives might have been accomplished.” Quon, 130 S.Ct. at 2632 (internal quotation marks and citations omitted).
The ACLU’s pleading reveals a fundamental misapprehension about ownership of telephony metadata. In its motion for a preliminary injunction, the ACLU seeks to: (1) bar the Government from collecting “Plaintiffs’ call records” under the bulk telephony metadata collection program; (2) quarantine “all of Plaintiffs’ call records” already collected under the bulk telephony metadata collection program; and (3) prohibit the Government from querying metadata obtained through the bulk telephony metadata collection program using any phone number or other identifier associated with Plaintiffs. Pls. Mot. at 2.
First, the business records created by Verizon are not “Plaintiffs’ call records.” Those records are created and maintained by the telecommunications provider, not the ACLU. Under the Constitution, that distinction is critical because when a person voluntarily conveys information to a third party, he forfeits his right to privacy in the information. See Smith, 442 U.S. at 742, 99 S.Ct. 2577. Second, the Government’s subsequent querying of the telephony metadata does not implicate the Fourth Amendment—anymore than a law enforcement officer’s query of the FBI’s fingerprint or DNA databases to identify someone. See Maryland v. King, ––– U.S. ––––, 133 S.Ct. 1958, 1963–64, 186 L.Ed.2d 1 (2013). In the context of DNA querying, any match is of the DNA profile—and like telephony metadata additional investigative steps are required to link that DNA profile to an individual.
*22 The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search. Cf. United States v. Dionisio, 410 U.S. 1, 13, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (Where single grand jury subpoena did not constitute unreasonable seizure, it could not be “rendered unreasonable by the fact that may others were subjected to the same compulsion”); In re Grand Jury Proceedings: Subpoenas Duces Tecum, 827 F.2d at

305 (“[T]he fourth amendment does not necessarily prohibit the grand jury from engaging in a ‘dragnet’ operation.”) (citation omitted).
The ACLU’s reliance on the concurring opinions in Jones is misplaced. In Jones, the police attached a GPS tracking device to the undercarriage of a vehicle without a warrant and tracked the vehicle’s location for the next four weeks. 132 S.Ct. at 948. The majority held that a “search” occurred because by placing the GPS device on the vehicle, “[t]he Government physically occupied private property for the purpose of obtaining information.... [S]uch a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Jones, 132 S.Ct. at 949 (citation omitted). In two separate concurring opinions, five justices appeared to be grappling with how the Fourth Amendment applies to technological advances. Jones, 132 S.Ct. at 957 (Sotomayor, J., concurring): Jones, 132 S.Ct. at 964 (Alito, J., concurring).
[34] But the Supreme Court did not overrule Smith. And the Supreme Court has instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by later cases. “[T]he Court of Appeals should ... leav[e] to th[e Supreme] Court the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)). Clear precedent applies because Smith held that a subscriber has no legitimate expectation of privacy in telephony metadata created by third parties. See Smith, 442 U.S. at 744–45, 99 S.Ct. 2577. Inferior courts are bound by that precedent.
Some ponder the ubiquity of cellular telephones and how subscribers’ relationships with their telephones have evolved since Smith. While people may “have an entirely different relationship with telephones than they did thirty-four years ago,” Klayman, 957 F.Supp.2d at ––––, 2013 WL 6571596, at *21, this Court observes that their relationship with their telecommunications providers has not changed and is just as frustrating. Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones. The fact that there are more calls placed does not undermine the Supreme Court’s finding that a person has no subjective expectation of privacy in telephony metadata. See Smith, 442 U.S. at 745, 99 S.Ct. 2577. (“The fortuity of whether or not the [tele]phone company in fact elects to make a quasi-permanent record of a particular number dialed
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does not ... make any constitutional difference. Regardless of the [tele]phone company’s election, petitioner voluntarily conveyed to it information that it had facilities for recording and that it was free to record.”) Importantly, “what metadata is has not changed over time,” and “[a]s in Smith, the types of information at issue in this case are relatively limited: [tele]phone numbers dialed, date, time, and the like.” Klayman, 957F.Supp.2d at ––––, 2013 WL 6571596, at *21 (emphasis in original). Because Smith controls, the NSA’s bulk telephony metadata collection program does not violate the Fourth Amendment.
B. First Amendment *23 [35] “[I]mplicit in the right to engage in activities protected by the First Amendment [is] a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Pervasive Government surveillance implicates not only the Fourth Amendment but also the First Amendment:
National security cases ... often reflect a convergence of First and Fourth Amendment values not present in cases of “ordinary” crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power. History abundantly documents the tendency of Government—however benevolent and benign its motives—to view with suspicion those who most fervently dispute its policies.
Keith, 407 U.S. at 313–14, 92 S.Ct. 2125 (internal quotation marks and citation omitted).
[36] The ACLU alleges that “[t]he fact that the government is collecting this information is likely to have a chilling effect on people who would otherwise contact Plaintiffs.” Compl. ¶ 35. Significant impairments of first amendment rights “must withstand exacting scrutiny.” United States

v. Alvarez, ––– U.S. ––––, 132 S.Ct. 2537, 2548, 183 L.Ed.2d 574 (2012); see also Nat’l Commodity & Barter Ass’n v. Archer, 31 F.3d 1521, 1531 n. 4 (10th Cir.1994); In re Grand Jury Proceedings, 776 F.2d 1099, 1102–03 (2d Cir.1985). The Government contends, however, that “surveillance consistent with Fourth Amendment protections ... does not violate First Amendment rights, even though it may be directed at communicative or associative activities.” Gordon v. Warren Consol. Bd. of Educ., 706 F.2d 778, 781 n. 3 (6th Cir.1983).
The Government’s argument is well-supported. See, e.g., United States v. Mayer, 503 F.3d 740, 747–48 (9th Cir.2007) (noting that “Fourth Amendment provides the relevant benchmark” for a challenge to a criminal investigation on First Amendment grounds); Anderson v. Davila, 125 F.3d 148, 160 (3d Cir.1997) (“Government’s surveillance of individuals in public places does not, by itself, implicate the Constitution” absent evidence of retaliatory conduct for protected activities); Phila. Yearly Meeting of Religious Soc. of Friends v. Tate, 519 F.2d 1335, 1337–38 (3d Cir.1975) (upholding police surveillance activities limited to data gathering at public meetings); United States v. Oaks, 527 F.2d 937, 941 (9th Cir.1975) (upholding surveillance by undercover agent of public meeting of tax rebellion group); Lustiger v. United States, 386 F.2d 132, 139 (9th Cir.1967) (holding that “the Fourth Amendment does not preclude postal inspectors from copying information contained on the outside of sealed envelopes in the mail”); Cohen v. United States, 378 F.2d 751, 760 (9th Cir.1967) (rejecting First Amendment challenge to the “mail cover” practice). And this consideration is built in to any section 215 application. See 50 U.S.C. § 1861 (requiring that the investigation not be conducted “solely upon the basis of activities protected by the [F]irst [A]mendment”).
*24 [37] [38] Here, it is unnecessary to decide whether there could be a First Amendment violation in the absence of a Fourth Amendment violation because Amnesty International compels the conclusion that the bulk metadata collection does not burden First Amendment rights substantially. Cf. 133 S.Ct. at 1152. “[D]istinguishing between incidental and substantial burdens under the First Amendment requires a different analysis, applying different legal standards, than distinguishing what is and is not routine in the Fourth Amendment ... context.” Tabbaa v. Chertoff, 509 F.3d 89, 102 n. 4 (2d Cir.2007). There must be “a direct and substantial” or “significant” burden on associational rights in order for it to qualify as “substantial.” Tabbaa, 509 F.3d at 101. “Mere incidental burdens on the right to
17

American Civil Liberties Union v. Clapper, --- F.Supp.2d ---- (2013)

associate do not violate the First Amendment.” Tabbaa, 509 F.3d at 101.
[39] Any alleged chilling effect here arises from the ACLU’s speculative fear that the Government will review telephony metadata related to the ACLU’s telephone calls. For telephony metadata to be “used to identify those who contact Plaintiffs for legal assistance or to report human-rights or civil-liberties violations,” Compl. ¶ 35, it must actually be reviewed and the identities of the telephone subscribers determined. Fear that telephony metadata relating to the ACLU will be queried or reviewed or further investigated “relies on a highly attenuated chain of possibilities.” Amnesty Int’l, 133 S.Ct. at 1148. “[S]uch a fear is insufficient to create standing,” Amnesty Int’l, 133 S.Ct. at 1152. Neither can it establish a violation of an individual’s First Amendment rights.
IV. Remaining Preliminary Injunction Considerations [40] For the reasons above, the ACLU has failed to state a claim and its case must be dismissed. But even if it could show a likelihood of success on the merits, a preliminary injunction would be inappropriate. “A preliminary injunction is an ‘extraordinary and drastic remedy.’ It should never be awarded as of right.” Munaf, 553 U.S. at 676, 128 S.Ct. 2207 (quoting Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 88 L.Ed. 834 (1944)). As discussed above, “[a], plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20, 129 S.Ct. 365.
[41] Here, the balance of the equities and the public interest tilt firmly in favor of the Government’s position. “Everyone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U.S. 1, 130 S.Ct. 2705, 2724, 177 L.Ed.2d 355 (2010); see also Haig v. Agee, 453 U.S. 280, 307, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (“It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.”) (internal quotation marks omitted); In re Directives [REDACTED ] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1012 (FISA Ct.Rev.2008) (“[T]he relevant government interest—the interest in national security—is of the highest order of magnitude.”).
*25 The Constitution vests the President with Executive

Power. U.S. Const. Art. II. That power reaches its zenith when wielded to protect national security. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring) (“When the President acts pursuant to an express or implied authorization from Congress,” his actions are “supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion ... rest[s] heavily upon any who might attack it.” (internal quotations omitted)). And courts must pay proper deference to the Executive in assessing the threats that face the nation. Boumediene v. Bush, 553 U.S. 723, 797, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (“[M]ost federal judges [do not] begin the day with briefings that may describe new and serious threats to our Nation and its people.”). Any injunction dismantling the section 215 telephony metadata collection program “would cause an increased risk to national security and the safety of the American public.” Shea Decl. ¶ 63. The “unique capabilities” of the telephony metadata collection program “could not be completely replicated by other means.” Shea Decl. ¶ 63.
The effectiveness of bulk telephony metadata collection cannot be seriously disputed. Offering examples is a dangerous stratagem for the Government because it discloses means and methods of intelligence gathering. Such disclosures can only educate America’s enemies. Nevertheless, the Government has acknowledged several successes in Congressional testimony and in declarations that are part of the record in this case. In this Court’s view, they offer ample justification:
• In September 2009, NSA discovered that an al-Qaeda-associated terrorist in Pakistan was in contact with an unknown person in the United States about efforts to perfect a recipe for explosives. NSA immediately notified the FBI, which investigated and identified the al-Qaeda contact as Colorado-based Najibullah Zazi. The NSA and FBI worked together to identify other terrorist links. The FBI executed search warrants and found bomb-making components in backpacks. Zazi confessed to conspiring to bomb the New York subway system. Through a section 215 order, NSA was able to provide a previously unknown number of one of the co-conspirators—Adis Medunjanin.
• In January 2009, while monitoring an extremist in Yemen with ties to al-Qaeda, the NSA discovered a connection with Khalid Oazzani in Kansas City. NSA immediately notified the FBI, which discovered a nascent plot to attack the New York
18

American Civil Liberties Union v. Clapper, --- F.Supp.2d ---- (2013)

Stock Exchange. Using a section 215 order, NSA queried telephony metadata to identify potential connections. Three defendants were convicted of terrorism offenses.
• In October 2009, while monitoring an al-Qaeda affiliated terrorist, the NSA discovered that David Headley was working on a plot to bomb a Danish newspaper office that had published cartoons depicting the Prophet Mohammed. He later confessed to personally conducting surveillance of the Danish newspaper office. He was also charged with supporting terrorism based on his involvement in the planning and reconnaissance for the 2008 hotel attack in Mumbai. Information obtained through section 215 orders was utilized in tandem with the FBI to establish Headley’s foreign ties and put them in context with U.S. based planning efforts.
*26 Holley Decl. ¶ 2426; Testimony before the House Permanent Select Committee on Intelligence, dated June 18, 2013, FBI Deputy Director Sean Joyce, at 12–13 (ECF No. 33–13) [hereinafter “Joyce Testimony”].
Bulk telephony metadata collection is one tool used to thwart potential terrorist attacks. Deputy Director Joyce explained:
Our mission is to stop terrorism, to prevent it. Not after the fact, to prevent it before it happens in the United States. And I can tell you every tool is essential and vital. And the tools as I outlined to you and their uses today have been valuable to stopping some of those plots. You ask, ‘How can you put the value on an American life?’ And I can tell you, its priceless.
Joyce Testimony at 52.
Of course, the considerations weighing in favor of the ACLU’s position are far from trivial. The need for the telephony metadata collection program “does not make the employment by Government of electronic surveillance a welcome development—even when employed with restraint and under judicial supervision. There is, understandably, a deep-seated uneasiness and apprehension that this capability will be used to intrude upon cherished privacy of law-abiding citizens.” Keith, 407 U.S. at 312, 92 S.Ct. 2125. Just as the Constitution gives the Executive the duty to protect the nation, citizens’ right to privacy is enshrined in the Bill of Rights.
Fifteen different FISC judges have found the metadata collection program lawful a total of thirty-five times since

May 2006. See Holley Decl. ¶¶ 6, 11; In re Application of the FBI for an Order Requiring the Prod. of Tangible Things From [REDACTED ], No. BR 13–158 (F.I.S.C. Oct. 11, 2013). The Government argues that “Plaintiffs are asking this Court to conclude that the FISC exceeded its authority when it authorized the NSA’s bulk collection of telephony metadata, and that this Court (without the benefit of the classified applications and information available to the FISC) should substitute its judgment for the decisions that the FISC reached [35] times.” Gov’t Prelim. Inj. Opp. Br. at 16–17 (ECF No. 61) (internal citation omitted).
This Court is bound only by the decisions of the Second Circuit and the Supreme Court. The decisions of other district courts are often persuasive authority. The two declassified FISC decisions authorizing bulk metadata collection do not discuss several of the ACLU’s arguments. They were issued on the basis of ex parte applications by the Government without the benefit of the excellent briefing submitted to this Court by the Government, the ACLU, and amici curiae.
There is no question that judges operate best in an adversarial system. “The value of a judicial proceeding ... is substantially diluted where the process is ex parte, because the Court does not have available the fundamental instrument for judicial judgment: an adversary proceeding in which both parties may participate.” Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175, 183, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968). At its inception, FISC judges were called on to review warrant applications, a familiar role and one well-suited for a judge to protect the rights of an individual in his absence. The FISC’s role has expanded greatly since its creation in 1978.
*27 As FISA has evolved and Congress has loosened its individual suspicion requirements, the FISC has been tasked with delineating the limits of the Government’s surveillance power, issuing secret decisions without the benefit of the adversarial process. Its ex parte procedures are necessary to retain secrecy but are not ideal for interpreting statutes. This case snows how FISC decisions may affect every American—and perhaps, their interests should have a voice in the FISC.
CONCLUSION
The right to be free from searches and seizures is
19

American Civil Liberties Union v. Clapper, --- F.Supp.2d ---- (2013)

fundamental, but not absolute. As Justice Jackson famously observed: “the Bill of Rights is not a suicide-pact.” Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). Whether the Fourth Amendment protects bulk telephony metadata is ultimately a question of reasonableness. Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 1569–70, 185 L.Ed.2d 696 (2013) (“[T]he ultimate touchstone of the Fourth Amendment is reasonableness.”). Every day, people voluntarily surrender personal and seemingly-private information to transnational corporations, which exploit that data for profit. Few think twice about it, even though it is far more intrusive than bulk telephony metadata collection.
There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks. While there have been unintentional violations of guidelines, those appear to stem from human error and the incredibly complex computer programs that support this vital tool. And once detected, those violations were self-reported and stopped. The bulk telephony metadata collection program is subject to executive and congressional oversight, as well as continual monitoring by a dedicated group of judges who serve on the Foreign Intelligence Surveillance Court.
No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from, or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice. As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific. Technology allowed al-Qaeda to operate decentralized and plot international terrorist attacks remotely. The bulk telephony metadata collection program represents the Government’s counter-punch: connecting fragmented and fleeting communications to re-construct and eliminate al-Qaeda’s terror network.
“Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.” Boumediene, 553 U.S. at 798, 128 S.Ct. 2229. The success of one helps protect the other. Like the 9/11 Commission observed: The choice between liberty and security is a false one, as nothing is more apt to imperil civil liberties than the success of a terrorist attack on American soil. The 9/11 Commission Report, at 395. A court’s solemn duty is “to reject as false, claims in the name of civil liberty which, if granted, would paralyze or

impair authority to defend [the] existence of our society, and to reject as false, claims in the name of security which would undermine our freedoms and open the way to oppression.” American Comm’cns Ass’n, C.I.O. v. Douds, 339 U.S. 382, 445, 70 S.Ct. 674, 94 L.Ed. 925 (1950) (Jackson, J., concurring in part and dissenting in part).
*28 For all of these reasons, the NSA’s bulk telephony metadata collection program is lawful. Accordingly, the Government’s motion to dismiss the complaint is granted and the ACLU’s motion for a preliminary injunction is denied. The Clerk of Court is directed to terminate the motions pending at ECF Nos. 25 and 32 and to mark this case closed.

1

See generally, The 9/11 Commission Report: Final

Report of the National Commission on Terrorist

Attacks Upon the United States [hereinafter the “9/11

Report”] (2004).

2

The Judicial Conference of the United States reaffirmed

the public interest in the efficient and transparent

administration of justice by acknowledging that

“sealing an entire case file is a last resort.” Judicial

Conference of the United States, Judicial Conference

Policy on Sealed Cases (Sept. 13, 2011), available at

http://

www.uscourts.gov/uscourts/News/2011/docs/JudicialC

onferencePolicyOnSealedCivilCas.

3

The iterative process Judge Bates describes is routine in

the FISC and demonstrates the FISC does not

“rubberstamp” applications for section 215 orders.

When [the Government] prepares an application

for [a section 215 order, it] first submit[s] to the

[FISC] what’s called a “read copy,” which the

court staff will review and comment on. [A]nd

they will almost invariably come back with

questions, concerns, problems that they see. And

there is an iterative process back and forth

between the Government and the [FISC] to take

care of those concerns so that at the end of the day,

we’re confident that we’re presenting something

that the [FISC] will approve. That is hardly a

rubber stamp. It’s’ rather extensive and serious

judicial oversight of this process.

Testimony before the House Permanent Select

Committee on Intelligence, dated Jun. 18, 2013,

Robert Litt, General Counsel, Office of the Director

of National Intelligence at 17–18 (ECF No. 33–13).

20

American Civil Liberties Union v. Clapper, --- F.Supp.2d ---- (2013)

4

See An Act to Amend the USA PATRIOT Act to

Extend the Sunset of Certain Provisions of that Act and

the Lone Wolf Provision of the Intelligence Reform and

Terrorism Provision Act of 2004 to July 1, 2006, Pub.

L. No. 109–160, 119 Stat. 2957 (2005); An Act to

Amend the USA PATRIOT Act to Extend the Sunset of

Certain Provisions of Such Act, Pub. L. No. 109–170,

120 Stat. 3 (2006); USA PATRIOT Improvement and

Reauthorization Act of 2005, Pub. L. No. 109–177, 120

Stat. 192 (2006); Department of Defense

Appropriations Act, 2010, Pub. L. No. 111–118, 123

Stat. 3409 (2009); An Act to Extend Expiring

Provisions of the USA PATRIOT Improvement and

Reauthorization Act of 2005 and Intelligence Reform

and Terrorism Prevention Act of 2004 until February

28, 2011, Pub. L. No. 111–141, 124 Stat. 37 (2010);

FISA Sunsets Extension Act of 2011, Pub. L. No.

112–3, 125 Stat. 5 (2011); PATRIOT Sunsets

Extension Act of 2011, Pub. L. No. 112–14, 125 Stat.

216 (2011).

5

A panel in the Second Circuit adopted this novel view

of standing. See Amnesty Int’l USA v. Clapper, 638

F.3d 118, 133–34, 139 (2d Cir.2011), overruled by –––

U.S. ––––, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013).

This conclusion was criticized by other Second Circuit

judges. See Amnesty Int’l USA v. Clapper, 667 F.3d

163, 194 (2d Cir.2011) (denial of rehearing en banc)

(Raggi, J. dissenting) (In finding that an “objectively

reasonable likelihood” standard applied, “the panel did

not explain its disregard of the Supreme Court’s

requirement that injury must be actual or imminently

threatened”). The Supreme Court expressly rejected the

Second Circuit’s formulation. See Amnesty Int’l, 133

S.Ct. at 1146, 1151.

6

The Amnesty International plaintiffs were all U.S.

persons. The FISA Amendments Act permits the NSA

to intercept communications of U.S. persons only if

they communicate with a non-U.S. person reasonably

believed to be outside the United States who is the

target of the surveillance. See Amnesty Int’l, 133 S.Ct.

at 1144, 1148.

7

SWIFT stands for Society for Worldwide Interbank

Financial Telecommunication. It provides electronic

instructions on how to transfer money among thousands

of financial institutions worldwide. See Amidax, 671

F.3d at 143.

8

Pen register and trap and trace devices are electronic

devices that, respectively, record all call detail

information for telephone numbers called from or to a

particular telephone line. However, they do not capture

the content of the call. See 18 U.S.C. § 3127(3, 4).

9

During the 2005 reauthorization of section 215,

Congressman Nadler offered an amendment in the

Judiciary Committee that would have permitted the

recipient of an order to challenge compliance in a

district court. In his remarks, Congressman Nadler

stated, “[This amendment] allows the recipient of a

section 215 order to challenge the order in [a district]

court. This is a common-sense protection that is sorely

lacking in the current law. Now the recipient, not the

target—this isn’t good enough, but we can’t do the

target.... It doesn’t give the target of the order the

ability to go to court. He doesn’t know about it. But the

recipient, if they wish, can challenge it in court.” H.R.

Rep. 109–174, pt 1, at 128. That amendment failed.

H.R. Rep. 109–174, pt 1, at 47.

10

An NSL is an administrative subpoena, which is one of

the SCA’s listed exceptions. See 18 U.S.C. §

2703(c)(2).

11

An Act to Extend Expiring Provisions of the USA

PATRIOT Improvement and Reauthorization Act of

2005 and Intelligence Reform and Terrorism

Prevention Act of 2004 until February 28, 2011, Pub.

L. No. 111–141, 124 Stat. 37 (2010); FISA Sunsets

Extension Act of 2011, Pub. L. No. 112–3, 125 Stat. 5

(2011); PATRIOT Sunsets Extension Act of 2011, Pub.

L. No. 112–14, 125 Stat. 216(2011).

12

For example, Senator Wyden stated, “[M]any Members

of Congress have no idea how the law is being secretly

interpreted by the Executive Branch.” and Senator

Udall echoed that sentiment: “[W]hat most

people—including

many

Members

of

Congress—believe the PATRIOT Act allows the

government to do ... and what government officials

privately believe the PATRIOT Act allows them to do

are two different things.” See 157 Cong. Rec. S3386

(daily ed. May 26, 2011). At the time, Senators Wyden

and Udall’s remarks precipitated a Freedom of

Information Act lawsuit by The New York Times

seeking disclosure of the classified report to Congress.

That case was assigned to this Court. After briefing,

argument, and an in camera review, this Court

21

American Civil Liberties Union v. Clapper, --- F.Supp.2d ---- (2013)

concluded that disclosure of the report would “enable America’s adversaries to develop means to degrade and evade the nation’s foreign intelligence collection capabilities” and that it would “reveal and potentially compromise intelligence sources and methods.” N.Y. Times Co. v. U.S. Dep’t of Justice, 872 F.Supp.2d 309, 316–17 (S.D.N.Y.2012).

13

Congressman Sensenbrenner asserts in an amicus brief

that “he was not aware of the full scope of the

[telephony metadata collection] program when he voted

to reauthorize section 215” and that “had he been fully

informed he would not have voted to reauthorize

section 215 without change.” Br. of Amicus Curiae, F.

James Sensenbrenner (“Amicus Br.”)at 9–10 (ECF No.

56). This is a curious statement: Congressman

Sensenbrenner not only had access to the five-page

report made available to all Congressmen, but he also,

as “a long-serving member of the House Judiciary

Committee”, Amicus Br. at 1, was briefed

semi-annually by the Executive Branch that included “a

summary of significant legal interpretations of section

215 involving matters before the FISC” and “copies of

all decisions, orders, or opinions of the FISC that

include significant construction or interpretation of

section 215.” 50 U.S.C. § 1871.

14

There is no question that “individuals associated with

international terrorist organizations use telephonic

systems to communicate with one another around the

world, including the United States.” In re Application,

amended slip op. at 21. And the Government “

‘[a]nalysts know that the terrorists’ communications are

located somewhere’ in the metadata [database], but

cannot know where until the data is aggregated and

then [queried.]” In re Application, amended slip op. at

21.

15

Prior to September 11th, NSA did not have that

capability. General Alexander summed it up aptly, “We

couldn’t connect the dots because we didn’t have the

dots.” Testimony before the House Permanent Select

Committee on Intelligence, dated Jun. 18, 2013,

General Keith Alexander, Director of the NSA, at 61

(ECF No. 33–13) [hereinafter “Alexander Testimony”].

Couch v. United States, 409 U.S. 322, 335–36, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973) (records given to accountant); Hoffa v. United States, 385 U.S. 293, 302–03, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) (information revealed to a confidant); On Lee v. United States, 343 U.S. 747, 751–53, 72 S.Ct. 967, 96 L.Ed. 1270 (1952) (information revealed to a false friend); see also United States v.Todisco, 667 F.2d 255, 258 (2d Cir.1981) (telephone numbers collected by a pen register). And some more recent iterations. See, e.g., United States v. Perrine, 518 F.3d 1196, 1204–05 (10th Cir.2008) (subscriber information provided to an internet service provider); United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir.2004) (information from a home computer that is transmitted over the Internet or by email); see also United States v. Meregildo, 883 F.Supp.2d 523, 526 (S.D.N.Y.2012) (information provided to Facebook “friend”). For an excellent discussion on the third party doctrine, see generally, Orin S. Kerr, The Case for the Third Party Doctrine, 107 Mich. L.Rev. 561 (2009).

17

General Alexander’s testimony on this point is crystal

clear:

[I]n the open press there’s this discussion about

pattern analysis—[that the Government is] out

there doing pattern analysis on this. That is

absolutely incorrect. We are not authorized to go

into the data, nor are we data mining, or doing

anything with the data other than those queries that

we discuss, period. We’re not authorized to do it.

We aren’t doing it. There are no automated

processes running in the background pulling

together data trying to figure out networks.... The

only time you can do pattern analysis is, once you

start the query on that query and where you go

forward.

Alexander Testimony at 66.

	  

16

Here are just a few matters in which an individual has

no constitutionally protected expectation of privacy.

See, e.g., United States v. Miller, 425 U.S. 435, 441–43,

96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (bank records);

22

American Civil Liberties Union v. Clapper, --- F.Supp.2d ---- (2013) 23

 
 Case 1:13-cv-03994-WHP Document 46-1 Filed 09/04/13 Page 2 of 16

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

)

AMERICAN CIVIL LIBERTIES UNION;

)

AMERICAN CIVIL LIBERTIES UNION

)

FOUNDATION; NEW YORK CIVIL

) ECF Case

LIBERTIES UNION; and NEW YORK CIVIL )

LIBERTIES UNION FOUNDATION,

) Case No. 13 Civ. 3994 (WHP)

)

Plaintiffs,

)

)

v.

)

)

JAMES R. CLAPPER, in his official capacity as )

Director of National Intelligence; KEITH B.

)

ALEXANDER, in his official capacity as

)

Director of the National Security Agency and

)

Chief of the Central Security Service;

)

CHARLES T. HAGEL, in his official capacity )

as Secretary of Defense; ERIC H. HOLDER, in )

his official capacity as Attorney General of the )

United States; and ROBERT S. MUELLER III, )

in his official capacity as Director of the Federal )

Bureau of Investigation,

)

)

Defendants.

)

BRIEF AMICUS CURIAE OF CONGRESSMAN F. JAMES SENSENBRENNER, JR.
IN SUPPORT OF PLAINTIFFS

David Greene (Corrected Pro Hac Vice pending) ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Tel: (415) 436-9333 Email: davidg@eff.org
Counsel for Amicus Curiae Congressman F. James Sensenbrenner, Jr.

Case 1:13-cv-03994-WHP Document 46-1 Filed 09/04/13 Page 3 of 16
TABLE OF CONTENTS
INTEREST OF AMICUS................................................................................................................1
I. INTRODUCTION ............................................................................................................... 1
II. CONGRESS AUTHORIZED THE COLLECTION OF DOCUMENTS AND OTHER TANGIBLE THINGS ONLY UPON A SHOWING THAT THE ITEMS WILL BE RELEVANT TO AN AUTHORIZED INVESTIGATION ................................................ 2
III. CONGRESS DID NOT INTEND TO AUTHORIZE THE COLLECTION OF DATA OF EVERY TELEPHONE CALL MADE TO OR FROM THE UNITED STATES, THUS CAPTURING THE INFORMATION, AND VIOLATING THE PRIVACY, OF MILLIONS OF INNOCENT AMERICANS ...................................................................... 4
IV. DEFENDANTS’ CLAIM THAT CONGRESS IMPLICITY RATIFIED THE PROGRAM MUST BE REJECTED BECAUSE THERE IS NO EVIDENCE OF EXTENSIVE CONSIDERATION OF THE PROGRAM OR A BROAD CONSENSUS THAT IT WAS LEGAL ............................................................................. 7
V. CONCLUSION ................................................................................................................. 10

	  

i

Case 1:13-cv-03994-WHP Document 46-1 Filed 09/04/13 Page 4 of 16

TABLE OF AUTHORITIES
Federal Cases 	   Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) ............................................................................................................8 	   Astoria Federal Savings & Loan Ass’n v. Solimino,
501 U.S. 104 (1991) ............................................................................................................6 	   Bowman Dairy Co. v. United States,
341 U.S. 214 (1951) ........................................................................................................4, 5 	   Butterbaugh v. Dep't of Justice,
336 F.3d 1332 (Fed. Cir. 2003) ...........................................................................................8 	   Cheney v. United States District Court for the District of Columbia,
542 U.S. 367 (2004) ............................................................................................................5 	   Edmonds v. Compagnie Generale Transatlantique,
443 U.S. 256 (1979) ............................................................................................................5 	   Forest Grove Sch. Dist. v. T.A.,
557 U.S. 230 (2009) ............................................................................................................8 	   Jama v. Immigration and Customs Enforcement,
543 U.S. (2005) ...................................................................................................................8 	   Lorillard v. Pons,
434 U.S. 575 (1978) ............................................................................................................8 	   MCI Telecommunications Corp. v. AT&T,
512 U.S. 218 (1994) ............................................................................................................6 	   Midlantic Nat’l Bank v. New Jersey Dep’t of Envtl. Prot.,
474 U.S. 494 (1986) ............................................................................................................5 	   Nat’l Labor Rel. Bd. v. Gullett Gin Co.,
340 U.S. 361 (1951) ............................................................................................................8 	   United States v. Powell,
379 U.S. 48 (1964) ..............................................................................................................8 	   Whitman v. American Trucking Ass’ns, Inc.,
531 U.S. 457 (2001) ............................................................................................................6

	  

ii

Case 1:13-cv-03994-WHP Document 46-1 Filed 09/04/13 Page 5 of 16
Federal Statutes 	   50 U.S.C. § 1842 .............................................................................................................................6 	   50 U.S.C. § 1861 .....................................................................................................................1, 3, 7 	  
Legislative Materials 	   H.R. Rep. No. 107-236 (2001) ........................................................................................................3 	   Pub. L. No. 107-56, 115 Stat. 272 ...................................................................................................2 	   USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, § 106,
120 Stat. 192 ........................................................................................................................3

	  

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INTEREST OF AMICUS Amicus curiae F. James Sensenbrenner, Jr. is a Member of Congress who was the author the USA PATRIOT (“Patriot Act”) in its original passage in 2001, and supported its revision in 2006 and its reauthorizations in 2009 and 2011. Rep. Sensenbrenner has represented the Fifth Congressional District of Wisconsin since 1978. He is a long-serving member of the House Judiciary Committee and the Committee on Science and Technology. Rep. Sensenbrenner was chairman of the judiciary committee when the United States was attacked on September 11, 2001. Five days later, he received a first draft of the Patriot Act from the Justice Department. Firmly believing that that original draft granted the government too much investigative power, he asked then-House Speaker Dennis Hastert for time to redraft the legislation. Following numerous meetings and negotiations with the White House, the FBI, and the intelligence community, Rep. Sensenbrenner authored a revised version of the Act that was ultimately adopted as law. Rep. Sensenbrenner also voted to amend the Patriot Act in 2006 and voted to reauthorize certain provisions of the law, including Section 215, in 2009 and 2011. I. INTRODUCTION The Defendants attempt to justify their practice of collecting the records of every telephone call made to or from the United States, including purely domestic calls, by claiming that Congress intended to authorize precisely such a program when it enacted and reauthorized Section 215 of the Act, 50 U.S.C. § 1861 (“Section 215”). Defs’ Mot. to Dismiss (ECF No. 33) at 21-28. But Congress intended no such thing. Amicus curiae is a Member of Congress who was the author of the original Patriot Act, in 2001, and supported its revision in 2006 and its reauthorizations in 2009 and 2011. Amicus agrees with Defendants that in enacting Section 215, Congress granted the Executive branch

	  

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broad investigative powers relating to investigations of suspected foreign terrorist activities. However, amicus vehemently disputes that Congress intended to authorize the program challenged by this lawsuit, namely, the unprecedented, massive collection of the telecommunications data of millions of innocent Americans. Indeed, the unfocused dragnet undertaken by Defendants is exactly the type of unrestrained surveillance Congress, including amicus, tried to prevent.
Amicus thus urges the Court to find that the bulk data collection program challenged in this lawsuit is not authorized by Section 215 or any other provision of law. II. CONGRESS AUTHORIZED THE COLLECTION OF DOCUMENTS AND
OTHER TANGIBLE THINGS ONLY UPON A SHOWING THAT THE ITEMS WILL BE RELEVANT TO AN AUTHORIZED INVESTIGATION The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 was adopted by Congress shortly after the September 11, 2001 terrorist attacks. Pub. L. No. 107-56, 115 Stat. 272. Among the Act’s 17 provisions was Section 215, the business records provision, which authorized intelligence agencies to apply for an order from the Foreign Intelligence Surveillance Court “requiring the production of any tangible things (including books, records, papers, documents, and other items).” Id. § 215. However, intelligence agencies were not given unbounded recordcollecting authority. Instead, records could be obtained only if they were “sought for an authorized investigation.” Id. In imposing this limitation, the authors intended that the ability to collect such records would be confined to the situations in which the information was relevant to an authorized investigation. Amicus Rep. Sensenbrenner was chairman of the House Judiciary Committee during the debates over the passage of the Act and was the author of the version that was ultimately passed. Rep. Sensenbrenner’s statements in the report for the House bill that became

	  

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Section 215 made it clear that such an order could be obtained only upon a showing to the FISC that “the records are relevant to an ongoing foreign intelligence investigation.” H.R. Rep. No. 107-236, pt. 1, at 61 (2001) (emphasis in original).
To put any doubts to rest, the relevancy requirement was expressly incorporated into Section 215 when the law was re-authorized in 2006. Pub. L. No. 107-56, 115 Stat. 272. The “sought for an authorized investigation” language was replaced by a requirement that the government establish “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment).” USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, § 106, 120 Stat. 192, 196. Other revisions to the bill shed light on what Congress meant by “relevant to an authorized investigation.” Records sought will be considered “presumptively relevant to an authorized investigation” if the government demonstrates that the records pertain to “(i) a foreign power or an agent of a foreign power; (ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or (iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation.” 50 U.S.C. § 1861(b)(2)(A).
Notably amicus and his colleagues in Congress required that the records sought be relevant to “an authorized investigation,” rather than relevant to general or omnibus efforts to combat terrorism. Congress thus required intelligence agencies to establish a specific link between the records sought and a specific, individual investigation.

	  

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III. CONGRESS DID NOT INTEND TO AUTHORIZE THE COLLECTION OF DATA OF EVERY TELEPHONE CALL MADE TO OR FROM THE UNITED STATES, THUS CAPTURING THE INFORMATION, AND VIOLATING THE PRIVACY, OF MILLIONS OF INNOCENT AMERICANS The parties can argue over the dictionary and legal definitions of the words “relevance”
and “an.” But regardless of how those words are defined, one thing is clear: amicus, and the other Members of Congress who enacted Section 215, did not intend to authorize the program at issue in this lawsuit or any program of a comparable scope.
Amicus does not dispute that “relevance” is customarily given a broad meaning, and that he and his colleagues in Congress were aware of this broad meaning when they enacted and reauthorized Section 215. Nor does amicus dispute that Section 215 was intended to create a “sufficiently flexible” standard. See Defs’ Mot. to Dismiss at 24. But there is no suggestion in any legal precedent or in any statements in the legislative history that the relevance standard could justify the ongoing collection of the records of every telephone call made to or by every person on American soil, the vast majority of which Defendants concede will not be related even remotely to any terrorist activities.
To the contrary, amicus understood that “relevance” was commonly construed by the Supreme Court as a limiting factor that specifically prevented the bulk collection of records, even on a much smaller scale, on the belief that investigators might find the information useful at some point in the future. For example, in Bowman Dairy Co. v. United States, 341 U.S. 214, 218 (1951), the defendants obtained a subpoena duces tecum that required the government attorneys prosecuting an antitrust case to produce, among other things, all documents which were “relevant to the allegations or charges contained in said indictment, whether or not they might constitute evidence with respect to the guilt or innocence of any of the defendants.” The Supreme Court rejected that part of the subpoena as an improper “fishing expedition to see what may turn up,”

	  

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despite the expansive reach of Federal Rule of Criminal Procedure 17(c). Id. at 221. In the civil
discovery context, the Supreme Court sharply criticized as “anything but appropriate” a
subpoena containing numerous “all documents” requests, characterizing it as seeking
“everything under the sky.” Cheney v. United States Dist. Court for the Dist. of Columbia, 542 U.S. 367, 387-88 (2004).1
In these and all other cases, the Court has looked at relevance in relation to the subject matter at issue.2 But Defendants here, without citing to any supporting authority, offer an
unprecedented and dangerous version of “relevance”: records are also relevant “if there is reason
to believe [the business records] are necessary to the application of investigative techniques that
will advance its purposes.” Defs’ Mot. to Dismiss at 24. Thus, Defendants claim they can collect
millions of records that they know are not pertinent or related or connected to any terrorist
activities, and retain those records for five years, because it may be necessary at some point
within those five years to analyze those records to see if they contain any links to terrorists.
Defendants maintain this claim even though they concede that even third degree connections to
terrorists will be found in only a miniscule subset of the records collected. Defs’ Mot. to Dismiss
at 6 (“Therefore, ‘only a small fraction of the records are ever reviewed.’”) The vast majority of
the records collected will have no relation to the investigation of terrorism at all. This collection
of millions of unrelated records is built in to the mass call collection program. 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    1 The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific.” Midlantic Nat’l Bank v. New Jersey Dep’t of Envtl. Prot., 474 U.S. 494, 501 (1986) (quoting Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 266-67 (1979)). 2 Defendants, quoting one dissenting senator, contend that Congress specifically rejected proposals that would have required the records to be relevant to specific individuals suspected of terrorist activities. Defs’ Mot. to Dismiss at 24 n.13. Regardless of whether this is true – the words of the statute should be interpreted by what they say, not by what words were not enacted – it is not support for Defendants’ theory that subject matter relevance, as distinct from a connection to an individual terrorist, is not required.

	  

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Defendants’ theory of “relevance” is simply beyond any reasonable understanding of the word. And it certainly is not what amicus intended the word to mean.
Indeed, Defendants concede that the program is unprecedented in its scope. Defs’ Mot. to Dismiss at 24. Even if Section 215 granted intelligence agencies enhanced powers with respect to terrorism investigations, Congress cannot be said to have implicitly authorized a program that reaches so much father than any program previously approved by any court in any context. See Whitman v. American Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001) (“Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not . . . hide elephants in mouseholes.”); MCI Telecommunications Corp. v. AT&T, 512 U.S. 218, 231 (1994) (explaining that conferral of authority to “modify” rates was not a cryptic conferral of authority to make filing of rates voluntary).
Defendants claim that the massive scope of this program is merely a product of the unique interaction of interconnected telecommunications data and terrorism investigations. Defendants dispute that their interpretation of Section 215 grants it unbounded investigatory powers because similar bulk collection of other data sets, such as medical records, would not be authorized by Section 215. Id. (“Ordinarily, therefore, bulk collection of such records would not meet the ‘relevance’ standard.”). However, Congress addressed the special need for telecommunications data in foreign intelligence and international terrorism investigations by providing separate procedures for the use of pen register and trap-and-trace devices, which are designed specifically to gather such data. See 50 U.S.C. § 1842. If the Defendants’ interpretation of Section 215 is correct, these provisions are rendered superfluous. See Astoria Federal Savings & Loan Ass’n v. Solimino, 501 U.S. 104, 112 (1991) (explaining that statutes should be construed “so as to avoid rendering superfluous” any statutory language).

	  

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Moreover, Defendants’ interpretation of Section 215 renders numerous other provisions of the USA PATRIOT Act as mere surplusage. As discussed above, certain categories of information are presumed to be “relevant” for the purposes of Section 215. See 50 U.S.C. § 1861(b)(2)(A)(i)-(iii). If the meaning of “relevant” is as “flexible” as Defendants contend, then Congress wasted its time in articulating these more specific and focused categories.
Defendants do not explain why Congress would have enacted such meaningless provisions. The bulk data collection program is unbounded in its scope. The NSA is gathering on a daily basis the details of every call that every American makes, as well as every call made by foreigners to or from the United States. How can every call that every American makes or receives be relevant to a specific investigation? IV. DEFENDANTS’ CLAIM THAT CONGRESS IMPLICITY RATIFIED THE
PROGRAM MUST BE REJECTED BECAUSE THERE IS NO EVIDENCE OF EXTENSIVE CONSIDERATION OF THE PROGRAM OR A BROAD CONSENSUS THAT IT WAS LEGAL Defendants claim that Congress “legislatively ratified” a construction of Section 215 under which the mass call-tracking program was permitted by reauthorizing Section 215 after being notified about the details of the program. This claim is founded on the assertion that a “classified briefing paper, explaining that the Government and the FISC had interpreted Section 215 to authorize the bulk collection of telephony metadata, was provided to the House and Senate Intelligence Committees and made available for review, as well, by all Members of Congress.” Defs’ Mot. to Dismiss at 27. Defendants vastly understate the quantum of consensus required for a court to find implied Congressional ratification of a statutory interpretation. Implied Congressional ratification is not appropriate merely upon a showing that Congress was notified about an interpretation of the statute. Rather, it will be found only where Congress both reenacted a statute

	  

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without change, and did so where the specific interpretation of the statute was broad and unquestioned. Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 349 (2005); United States v. Powell, 379 U.S. 48, 55 n.13 (1964). The required broad and unquestioned interpretation may be established by evidence that “Congress considered [the interpretation] in great detail,” Nat’l Labor Rel. Bd. v. Gullett Gin Co., 340 U.S. 361, 366 (1951), specifically evidence of "[e]xtensive hearings, repeated efforts at legislative correction, and public controversy.” Butterbaugh v. Dep’t of Justice, 336 F.3d 1332, 1342 (Fed. Cir. 2003). Or it may be established by a broad unanimity of judicial decisions. In Jama, the Supreme Court declined to find ratification even though Congress reenacted the legislation after two Court of Appeals decisions had adopted the proposed interpretation; even in the absence of contrary authority, those two appellate decisions could not establish the adequate judicial consensus needed for implied Congressional ratification. Jama, 543 U.S. at 349. In contrast, in Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-40 (2009), upon which Defendants base their ratification argument, the Supreme Court found implied ratification only because Congress did not change a statutory provision following the Supreme Court’s definitive interpretation of that provision in another case. See also Lorillard v. Pons, 434 U.S. 575, 580 (1978) (finding ratification where “every court to consider the issue” had interpreted the statute in the same way); Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975) (finding ratification because “[t]he Court of Appeals that have confronted the issue are unanimous”).
In this case there is no evidence to support implied ratification. The issue was not debated in Congress, nor, because of the overwhelming secrecy the Executive applied to the legal interpretations of FISA, were there public hearings or a public debate. There is no evidence of

	  

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extensive deliberations or any rejected efforts at legislative correction specific to the mass call tracking program.
Defendants’ only evidence supporting implied ratification is the assertion that a 5-page report was made available for Members of Congress to read in a secure location for a limited period of time in both 2009 and 2011, when Congress was considering whether to reauthorize Section 215 as a whole. Defs’ Mot. to Dismiss Exh. 4 (ECF No. 33-4), Exh. 6 (ECF No. 33-6). However, the 5-page report was only a brief summary, sorely lacking in detail, with only one sentence that hinted at the breadth of the program.3 Moreover, the report was not made available to House Members in 2011. See Defs’ Mot. to Dismiss at 27 n.15. Nor were Members of Congress given access to any of the FISC orders approving of the bulk collection of call data.
Even if mere notice were enough, it would have to be actual notice. Defendants make no attempt to demonstrate that all, or even most, Members of Congress had actual notice that the government was engaging in the bulk acquisition of the telephone records of Americans. The doctrine of implied ratification is subordinate to the fundamental principle that statutory interpretation turns on Congress’ actual intent: as such, ratification requires actual notice, not constructive notice. The doctrine never has been—and never should be—applied in circumstances like these, where the Executive has kept its interpretation of the law secret and there is no evidence that anything more than a handful of Members of Congress had actual knowledge of the Executive’s interpretation.
Regardless of whether Defendants attempted or intended to educate all Members of Congress beyond the intelligence committees, amicus attests that he was not aware of the full 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    3 “The orders generally require production of the business records (as described above) relating to substantially all of the telephone calls handled by the companies, including both calls made between the United States and a foreign country and calls made entirely within the United States.” Defs’ Mot. to Dismiss, Exh. 5 (ECF No. 33-5) at 4.

	  

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scope of the program when he voted to reauthorize Section 215. And amicus attests that had he

been fully informed he would not have voted to reauthorize Section 215 without change.

But, as set forth above, even if every member of Congress had been fully informed of the

program, a mere awareness of a statutory interpretation is not sufficient to establish implied

ratification. As amicus wrote, “the suggestion that the administration can violate the law because Congress failed to object is outrageous. But let them be on notice: I am objecting right now.”4

V. CONCLUSION

For the above-stated reasons, amicus curiae urges this Court to deny Defendants’ Motion

to Dismiss and grant Plaintiffs’ Motion for Summary Judgment.

Dated: September 4, 2013

By:	  	  /s/ David Greene David Greene ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Tel: (415) 436-9333 Email: davidg@eff.org

Counsel for Amicus Curiae Congressman F. James Sensenbrenner, Jr.

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    4 Rep. Jim Sensenbrenner, How Obama Abused the Patriot Act: The White House ‘s justification
for collecting Americans’ phone data doesn’t stand up to the light of day, LATIMES.COM, August 19, 2013, <latimes.com/opinion/commentary/la-oe-sensenbrenner-data-patriot-act-
obama-201308190,0,138781.story>.

	  

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CERTIFICATE OF SERVICE

I hereby certify that on September 4, 2013, I electronically filed the foregoing with the

Clerk of the Court for the United States District Court, Southern District of New York by using

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

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

Dated: September 4, 2013

By:	  	  /s/ David Greene David Greene ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Tel: (415) 436-9333 Email: davidg@eff.org

Counsel for Amicus Curiae Congressman F. James Sensenbrenner, Jr.

	  

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 Case 1:13-cv-03994-WHP Document 39-2 Filed 08/30/13 Page 1 of 38

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

_________________________________________________

)

AMERICAN CIVIL LIBERTIES UNION;

)

AMERICAN CIVIL LIBERTIES UNION

)

FOUNDATION; NEW YORK CIVIL LIBERTIES )

UNION; AND NEW YORK CIVIL LIBERTIES )

UNION FOUNDATION,

)

)

Plaintiffs,

)

v.

)

)

JAMES R. CLAPPER, in his official capacity as

)

Director of National Intelligence; KEITH B.

)

ALEXANDER, in his official capacity as Director )

Of the National Security Agency and Chief of the )

Central Security Service; CHARLES T. HAGEL, in )

his official capacity as Secretary of Defense; ERIC )

H. HOLDER, in his official capacity as Attorney )

General of the United States; and ROBERT S.

)

MUELLER III, in his official capacity as Director )

Of the Federal Bureau of Investigation,

)

)

Defendants.

)

________________________________________________ )

No. 13-cv-03994 (WHP)

BRIEF OF FORMER MEMBERS OF THE CHURCH COMMITTEE AND LAW PROFESSORS
AS AMICUS CURIAE SUPPORTING PLAINTIFF

DATED: August 30, 2013

LAURA K. DONOHUE* Professor of Law Georgetown University Law Center 600 New Jersey Ave., NW Washington, DC 20001 (202) 662-9455 lkdonohue@ law.georgetown.edu *Admitted pro hac vice

ERWIN CHEMERINSKY Dean, Distinguished Professor of Law University of California, Irvine School of Law 401 E. Peltason Dr. Suite 1000 Irvine, CA 92697 (949) 824-7722 echemerinsky@law.uci.edu

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	   TABLE OF CONTENTS Page
IDENTITY AND INTEREST OF AMICUS CURIAE ........................................................................................................................... 1
SUMMARY OF ARGUMENT ........................................................................................8
ARGUMENT ...................................................................................................................9
I. Congress introduced the Foreign Intelligence Surveillance Act to prevent intelligence agencies from engaging in broad domestic surveillance ..........9
A. The NSA has a history of conducting broad domestic surveillance programs under the guise of foreign intelligence ..................................11
1. The NSA understood foreign intelligence to involve the interception of communications wholly or partly outside the United States and not targeted at U.S. persons..............................................................12
2. Project MINARET introduced to collect foreign intelligence information, ended up intercepting hundreds of U.S. citizens’ communications .................................................................................. 14
3. The NSA’s Operation SHAMROCK involved the large-scale collection of U.S. citizens’ communications from private companies ...........................................................................................17
B. Other intelligence agencies similarly engaged in sweeping data collection programs..................................................................................19
C. Congress passed the Foreign Intelligence Surveillance Act to prevent agencies from using foreign intelligence gathering as an excuse for domestic surveillance ..............................................................................22
II. Congress inserted four protections to limit the nature of foreign intelligence gathering ...................................................................................23
III. The NSA’s telephony metadata program is inconsistent with FISA ........26
CONCLUSION ..............................................................................................................32
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TABLE OF AUTHORITIES

CASES

Page(s)

In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611 (FISA Ct. 2002).......................................................................................28

In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from Verizon Business Network Services, Inc., on Behalf of MCI Communication Services, Inc., D/B/A Verizon Business Services, Secondary Order, No. BR 13-80 (FISA Ct. Apr. 25, 2013) .........................................16

In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002) .....................................................................................................28

United States v. U.S. District Court, 407 U.S. 297 (1972) ..........................................22

STATUTES

50 U.S.C. § 1801 ............................................................................................................24

50 U.S.C. § 1804(a)(4) ...................................................................................................25

50 U.S.C. § 1804(a)(7)(B) ..............................................................................................28

50 U.S.C. § 1804(h) .......................................................................................................25

50 U.S.C. § 1805(a)(2) ..............................................................................................24-25

50 U.S.C. § 1861 ..................................................................................................9, 27, 30

Intelligence Authorization Act for Fiscal Year 1999, Pub. L. 105-272, § 602, 112 Stat. 2396, 2410 (1998) .................................................................................................27

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (“USA PATRIOT Act”) Act of 2001, Pub. L. 10756, § 215, 115 Stat. 272, 287 (2001) (codified as amended at 50 U.S.C. §1861)............................................................................................................28

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	   An Act to Amend the USA PATRIOT Act to Extend the Sunset of Certain Provisions of that Act and the Lone Wolf Provision of the Intelligence Reform and Terrorism Prevention Act of 2004 to July 1, 2006, Pub. L. No. 109-160, 119 Stat. 2957 (2005) ........................................................................................................................28-29
An Act To Amend the USA PATRIOT Act to Extend the Sunset of Certain Provisions of Such Act, Pub. L. No. 109-170, 120 Stat. 3 (2006) ................................29
USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, 120 Stat. 192 (2006) .................................................................................................29-30
Dept. of Defense Appropriations Act, 2010, Pub. L. No. 111-118, 123 Stat. 3409 (2009) .............................................................................................................................29
An Act to Extend Expiring Provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004 until February 28, 2011, Pub. L. No. 111-141, 124 Stat. 37 (2010)...............29
FISA Sunsets Extension Act of 2011, Pub. L. No. 112-3, 125 Stat. 5 (2011) .............29
PATRIOT Sunsets Extension Act of 2011, Pub. L. No. 112-14, 125 Stat. 216 ..........29
OTHER AUTHORITIES
H.R. Res. 138, 94th Cong. (1975) ...................................................................................9
H.R. Res. 591, 94th Cong. (1975) ...................................................................................9
S. Res. 21, 94th Cong. (1975)....................................................................................9, 10
Foreign Intelligence Surveillance Act of 1976, H.R. 12750, 94th Cong. (1976).........26
Foreign Intelligence Surveillance Act of 1976, S. 3197, 94th Cong. (1976) ...............22
Foreign Intelligence Surveillance Act of 1978, S. 1566, 95th Cong. (1978) .............. 23
Intelligence Activities, S. Res. 21: Hearings Before the Select Comm. to Study Governmental Operations with Respect to Intelligence Activities of the United States of the United States Senate, 94th Cong. (1975)........................................................10-20
Oversight of the Administration’s Use of FISA Authorities: Hearing Before H. Comm. on the Judiciary, 113th Cong. (2013) ...........................................................................30
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	   121 Cong. Rec. 1,416-34 (1975). ...................................................................................10 122 Cong. Rec. 7,543 (1976)..........................................................................................26 124 Cong. Rec. 33,782 (1978)........................................................................................24 124 Cong. Rec. 34,845 (1978)........................................................................................23 124 Cong. Rec. 35,389 (1978).................................................................................22 - 23 124 Cong. Rec. 36,409 (1978)........................................................................................25 124 Cong. Rec. 36,414 (1978)........................................................................................26 124 Cong. Rec. 36,415 (1978)........................................................................................21 124 Cong. Rec. 36,417-18 (1978) ..................................................................................26 124 Cong. Rec. 37,738 (1978)........................................................................................26 151 Cong. Rec. 13,441 (2005)........................................................................................30 Presidential Memorandum, Oct. 29, 1952 (National Archives and Records Administration, RG 59, Records of the Dept. of State, Records of the Executive Secretariat, NSC Files: Lot 66 D 195)..........................................................................11 National Security Council Intelligence Directive No. 6, Dec. 12, 1947 (National Archives and Records Administration, RG 59, Records of the Dept. of State, Records of the Executive Secretariat, NSC Files: Lot 66 D 148, Dulles-Jackson-Correa Report, Annex 12) .........................................................................................................12 National Security Council Intelligence Directive No. 9, Mar. 10, 1950 (National Archives and Records Administration, RG 59, Records of the Dept. of State, Records of the Executive Secretariat, NSC Files: Lot 66 D 195) .............................................11 National Security Council Intelligence Directive No. 9, Jul. 1, 1948 (National Archives and Records Administration, RG 59, Records of the Dept. of State, Records of the Executive Secretariat, NSC Files: Lot 66 D 195)........................................12, 13 Exec. Order No. 11,828, 3 C.F.R. 933 (1975) ...............................................................20
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	   Commission on CIA Activities Within the United States: Announcement of Appointment of Chairman and Members, 11 Weekly Comp. Pres. Doc. 25 (Jan. 5, 1975) ..............................................................................................................................20 Report to the President by the Commission on CIA Activities Within the United States 9 (June 1975)......................................................................................................20 Frederick M. Kaiser, Cong. Research Serv., Legislative History of the Senate Select Committee on Intelligence 2 (Aug. 16, 1978)..................................................................9 William Newby Raiford, Cong. Research Serv., 76-149F, To Create a Senate Select Committee on Intelligence: A Legislative History of Senate Resolution 400 (Aug. 12, 1976). .........................................................................................................................9, 10 Press Release, National Security Agency Central Security Service, The National Security Agency Releases Over 50,000 Pages of Declassified Documents (Jun. 8, 2011), http://www.nsa.gov/public_info/press_room/2011/50000_declassified_docs.shtml… 11 Press Release, Office of the Director of National Intelligence, Foreign Intelligence Surveillance Court Renews Authority to Collect Telephony Metadata (Jul. 19, 2013), http://www.dni.gov/index.php/newsroom/press-releases/191-press-releases2013/898-foreign-intelligence-surveillance-court-renews-authority-to-collecttelephony-metadata ......................................................................................................17 History Matters, Rockefeller Commission Report (Aug. 28, 2013), http://history-matters.com/archive/contents/church/contents_church_reports_rockcomm.htm ..................................................................................................................................10, 11 United States Census Bureau, U.S. and World Population Clock (Aug. 28, 2013), http://www.census.gov/popclock/ ..................................................................................16
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INTEREST OF AMICUS CURIAE Amici write to provide the Southern District of New York with the historical context that gave rise to the Foreign Intelligence Surveillance Act.1 They support Plaintiff and urge this Court to find that the telephony metadata collection program is unlawful, to enjoin the government from continuing the program under the Verizon order or any successor thereto, and to require the government to purge all call records related to the Plaintiffs’ communications previously collected pursuant to the telephony metadata collection program. The Amicus Curiae includes (a) former members of the 1975-76 Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (“Church Committee”), and (b) law professors who teach and write about Legal History, Constitutional Law, National Security Law, Internet Law, and Privacy Law. Amici have a strong interest in ensuring that the executive branch acts in a manner consistent with the U.S. Constitution and the statutes governing foreign intelligence surveillance. In the first category, amicus Gary Hart served as a U.S. Senator from Colorado 1975-1987, during which time he was a member of the Church Committee. He was a charter member of the Senate Intelligence Oversight Committee and a member of the Senate Armed Services Committee. From 1998 to 2001, he cochaired the U.S. Commission on National Security in the 21st Century. He 	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    1 In August 2013 Amici submitted a similar brief to the Supreme Court in support of Petitioner in In re Electronic Privacy Information Center, No. 13-58 (2013).
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currently chairs the Department of Defense’s Threat Reduction Advisory Committee.
Amicus Walter Mondale, Vice President of the United States 1977-1981 and a U.S. Senator from Minnesota 1964-1976, served on the Church Committee and chaired the subcommittee that drafted the final report on domestic intelligence activities. Having helped to uncover the abuses in which the National Security Agency and others engaged, he subsequently helped to facilitate the writing and passage of the Foreign Intelligence Surveillance Act.
In the second category, amicus Zoe Argento is an Associate Professor at Roger Williams University School of Law, where she writes and teaches on Intellectual Property Law and Technology Law.
Amicus W. David Ball is an Assistant Professor at Santa Clara Law. He is on the Advisory Board of the Bill of Rights Defense Committee and Co-chair of the Corrections Committee of the American Bar Association’s Criminal Justice Section, and he writes and teaches on Criminal Justice and Fourth Amendment Law.
Amicus William C. Banks, Board of Advisors Distinguished Professor and Professor of Law at Syracuse University College of Law, directs the Institute for National Security and Counterterrorism. He writes and teaches on Constitutional Law and National Security Law.
Amicus Annemarie Bridy is an Associate Professor at the University of Idaho College of Law, where she specializes in Internet Law and Intellectual Property
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Law. She is active in the leadership of the Association of American Law Schools Internet and Computer Law Section.
Amicus Brian Carver is an Assistant Professor at the University of California, Berkeley, where he writes and teaches on Technology Law and Information Law.
Amicus Fred H. Cate is Distinguished Professor and C. Ben Duton Professor of Law at Indiana University, Maurer School of Law. He is the Director of the Center for Applied Cybersecurity Research and the Director of the Center for Law, Ethics, and Applied Research in Health Information.
Amicus Erwin Chemerinsky is the founding Dean, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine, School of Law. His areas of expertise include Constitutional Law, Civil Rights, and Civil Liberties.
Amicus Ralph D. Clifford is a Professor of Law at the University of Massachusetts School of Law, where he writes and teaches on Intellectual Property and Cyberlaw.
Amicus Julie Cohen is a Professor of Law at Georgetown Law, where she writes and teaches on Privacy Law and governance of communications networks. She is a member of the Advisory Board of the Electronic Privacy Information Center and the Advisory Board of Public Knowledge.
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Amicus Laura K. Donohue is a Professor of Law at Georgetown University Law Center, as well as the Director of Georgetown’s Center on National Security and the Law, where she writes and teaches on Constitutional Law, National Security Law, and Legal History. She serves on the Advisory Board of the Electronic Privacy Information Center.
Amicus Susan Freiwald is a Professor of Law at the University of San Francisco School of Law, where she writes and teaches on Cyberlaw and information privacy.
Amicus A. Michael Froomkin is the Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law at the University of Miami School of Law, where he writes and teaches on Constitutional Law, Internet Law, and Privacy Law. He is on the Advisory Board of the Electronic Frontier Foundation and a non-resident Fellow of the Center for Democracy & Technology and the Yale Law School Information Society Project.
Amicus Ahmed Ghappour is a Clinical Instructor of Law in the Civil Rights Clinic and the Director of the National Security Defense Project at the University of Texas School of Law. He is a National Security Committee member of the National Association of Criminal Defense Lawyers.
Amicus Shubha Ghosh is the Vilas Research Fellow & Professor of Law at the University of Wisconsin Law School, where he writes and teaches on Intellectual Property, Internet Law and Privacy Law. He is a member of the Executive
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Committee of the American Association of Law Schools’ Section on Internet and Computer Law.
Amicus Jennifer Stisa Granick is the Director of Civil Liberties at the Stanford Center for Internet and Society. Her work focuses on computer crime and security, electronic surveillance, consumer privacy, data protection, copyright, trademark and the Digital Millennium Copyright Act.
Amicus Robert A. Heverly is an Associate Professor and Interim Director of the Government Law Center at Albany Law School of Union University, where he writes and teaches on Intellectual Property, Cyberlaw, and Communications Law.
Amicus Anne Klinefelter is the Director of the Law Library and an Associate Professor of Law at the University of North Carolina, where she writes and teaches on Privacy Law and First Amendment Law.
Amicus Edward Lee is a Professor of Law and the Director of the Program in Intellectual Property Law, as well as the Norman and Edna Freehling Scholar at IIT Chicago-Kent College of Law, where he writes and teaches on the First Amendment and Internet Law.
Amicus Mark A. Lemley is the William H. Neukom Professor at Stanford Law School, as well as the Director of the Stanford Program in Law, Science, and Technology, where he writes and teaches on Intellectual Property, Internet Law and Privacy Law.
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Amicus David Levine is an Associate Professor of Law at Elon University School of Law, where he writes and teaches on Intellectual Property Law at the intersection of technology and public life. He is an affiliate scholar at the Center for Internet and Society at Stanford Law School.
Amicus Karl Manheim is a Professor of Law at Loyola Law School, Los Angeles, where he writes and teaches in the areas of Constitutional Law, Cyberlaw and Technology, and Privacy.
Amicus Ranjana Natarajan is a Clinical Professor at the University of Texas School of Law, where she directed the National Security Clinic 2009-2013, and where she is now the Director of the Civil Rights Clinic. She writes and teaches on Constitutional Law, National Security Law, and Privacy Law.
Amicus Ira Steven Nathenson is an Associate Professor of Law at St. Thomas University School of Law, where he writes and teaches on Intellectual Property and Cyberlaw.
Amicus David W. Opderbeck, Professor of Law at Seton Hall University Law School, is the Director of the Gibbons Institute of Law, Science & Technology, where he writes and teaches on the regulation of access to scientific and technological information.
Amicus Peter Raven-Hansen is the Glen Earl Westen Research Professor of Law at George Washington University Law School, where he writes and teaches on
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Constitutional Law, National Security Law, and Counterterrorism Law. He is the Co-director of the National Security and U.S. Foreign Relations Law Program.
Amicus Kim Lane Scheppele is Rockefeller Professor of International Affairs at the Woodrow Wilson School and the Director of the Program in Law and Public Affairs at Princeton University, where she writes about and teaches Comparative Constitutional Law. She has taught National Security Law at the University of Pennsylvania Law School, at the Yale Law School, and in the PhD program in National Security Studies at Princeton.
Amicus Jessica Silbey is a Professor of Law at Suffolk University Law School, where she teaches and writes on Intellectual Property and Constitutional Law.
Amicus Katherine J. Strandburg is the Alfred B. Engelberg Professor of Law at New York University School of Law, where she teaches and writes on Intellectual Property, Cyberlaw, and Information Privacy Law. She joins as an amicus in her individual capacity and not on behalf of New York University School of Law.
Amicus Stephen I. Vladeck is a Professor of Law and Associate Dean for Scholarship at American University Washington College of Law. He chairs the AALS Section on Federal Courts and a co-author of one of the leading National Security Law and Counterterrorism Law casebooks.
Amicus Jonathan Weinberg is a Professor of Law at Wayne State University, where he writes and teaches on Constitutional Law, Internet Law, and Privacy Law. A former Justice Department and FCC lawyer, he chaired a working group
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created by ICANN (the Internet Corporation for Assigned Names and Numbers), to develop recommendations on the creation of new top-level Internet domains.
SUMMARY OF ARGUMENT Congress introduced the Foreign Intelligence Surveillance Act of 1978 to prevent the National Security Agency (“NSA”) and other federal intelligencegathering entities from engaging in broad domestic surveillance. In doing so, the legislature sought to prevent a recurrence of the abuses of the 1960s and 1970s that accompanied the Cold War and the rapid expansion in communications technologies. Congress circumscribed the NSA’s authorities by limiting them to foreign intelligence operations. It added additional constraints, requiring that the target be a foreign power or an agent thereof, insisting that such claims be supported by probable cause, and heightening the protections afforded to U.S. citizens’ information. The government now argues that all telephone calls in the United States, including those of a wholly local nature, are “relevant” to foreign intelligence investigations. This claim contradicts the purpose of the statute, which is to limit the conditions under which U.S. persons’ information can be collected, analyzed, and distributed. The Foreign Intelligence Surveillance Court plays a key role in determining the validity of each person targeted. Reading 50 U.S.C. § 1861 as authorizing the
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wholesale collection of all telephony data delegates such decisions to the executive, further rendering FISA’s restrictions meaningless.
ARGUMENT I. Congress Introduced the Foreign Intelligence Surveillance Act to
Prevent Intelligence Agencies from Engaging in Broad Domestic Surveillance In the early 1970s, public allegations related to intelligence agencies’ impropriety, illegal activities, and abuses of authority prompted both Houses of Congress to create temporary committees to investigate the accusations: the House Select Committee on Intelligence, and the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities. H.R. Res. 138, 94th Cong. (1975); replaced and expanded by H.R. Res. 591, 94th Cong. (1975); S. Res. 21, 94th Cong. (1975). The allegations centered on activities undertaken by three organizations: the NSA, the Federal Bureau of Investigation (“FBI”), and the Central Intelligence Agency (“CIA”). Frederick M. Kaiser, Cong. Research Serv., Legislative History of the Senate Select Committee on Intelligence 2 (Aug. 16, 1978); William Newby Raiford, Cong. Research Serv., 76-149F, To Create a Senate Select Committee on Intelligence: A Legislative History of Senate Resolution 400 (Aug. 12, 1976). The Senate Select Committee, Chaired by Senator Frank F. Church (D-ID), with the assistance of Senator John G. Tower (R-TX) as Vice Chairman, was a bipartisan initiative. Its membership included eleven Senators, six drawn from the
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majority party and five from the minority party. 1 Intelligence Activities: Senate Resolution 21: Hearings Before the Select Comm. to Study Governmental Operations with Respect to Intelligence Activities of the United States of the United States Senate, 94th Cong., 1st Sess., at ii (1975). The Senate overwhelmingly supported the establishment of the Select Committee, endorsing its creation by a vote of 82-4. 121 Cong. Rec. 1,416-34 (1975).
The Senate directed the committee to do two things: first, to investigate “illegal, improper, or unethical activities” in which the intelligence agencies engaged, and, second, to determine the “need for specific legislative authority to govern” the NSA and other agencies. S. Res. 21, 94th Cong. (1975).
The Committee subsequently took testimony from hundreds of people, inside and outside of government, in public and private hearings. The NSA, FBI, CIA, and other federal agencies submitted files. In 1975 and 1976 the Committee issued seven reports and 6 supplemental volumes. Since 1992, another 50,000 pages of the records have been declassified and made publicly available at the National Archives. History Matters, Rockefeller Commission Report, available at http://historymatters.com/archive/contents/church/contents_church_reports_rockcomm.htm; and Press Release, National Security Agency Central Security Service, The National Security Agency Releases Over 50,000 Pages of Declassified Documents (June 8, 2011), http://www.nsa.gov/public_info/press_ room/2011/50000_declassified_docs.shtml.
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The Committee found that broad domestic surveillance programs, conducted under the guise of foreign intelligence collection, had undermined the privacy rights of U.S. citizens. Intelligence Activities: Senate Resolution 21: Hearings Before the Select Committee to Study Governmental Operations with Respect to Intelligence Activities of the United States of the United States Senate, 94th Cong., 1st Sess. (1975) (Vols. 1-7). The illegal activities, abuse of authority, and violations of privacy uncovered by the Committee spurred Congress to pass the Foreign Intelligence Surveillance Act.
A. The NSA Has a History of Conducting Broad Domestic Surveillance Programs Under the Guise of Foreign Intelligence
In October 1952, President Truman issued a classified memo that laid out the future of U.S. signals intelligence and created the NSA. Presidential Memorandum, Oct. 29, 1952, amending National Security Council Intelligence Directive No. 9, Mar. 10, 1950 (National Archives and Records Administration, RG 59, Records of the Department of State, Records of the Executive Secretariat, NSC Files: Lot 66 D 195). Truman’s aim was to (a) strengthen U.S. signals intelligence capabilities, (b) support the country’s ability to wage war, and (c) generate information central to the conduct of foreign affairs. 5 Intelligence Activities: Senate Resolution 21: Hearings before the Select Committee to Study Governmental Operations with Respect to Intelligence Activities of the United States of the United States Senate, 94th Cong., 1st Sess. 9 (1975) (hereinafter Church Committee Report, Vol. 5).
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The NSA’s mission, accordingly, was to obtain foreign intelligence from foreign electrical communications. Id. at 6 (statement of General Lew Allen, Jr., Director, National Security Agency).
1. The NSA Understood Foreign Intelligence to Involve the Interception of Communications Wholly or Partly Outside the United States and Not Targeted at U.S. Persons
Neither the Presidential directive of 1952, nor the National Security Council Intelligence Directive (“NSCID”) No. 6, which authorized the CIA to engage in Foreign Wireless and Radio Monitoring, defined the term “foreign communications.” NSCID No. 6, Dec. 12, 1947 (National Archives and Records Administration, RG 59, Records of the Department of State, Records of the Executive Secretariat, NSC Files: Lott 66 D 148, Dulles-Jackson-Correa Report, Annex 12); see also Church Committee Report, Vol. 5, supra, at 6.
NSCID 9, however, entitled Communications Intelligence, defined “foreign communications” as “all communications and related materials . . . of the government and/or their nationals or of any military, air, or naval force, faction, party, department, agency, or bureau of a foreign country, or of any person or persons acting or purporting to act therefor.” It included “all other telecommunications and related material of, to, and from a foreign country which may contain information of military, political, scientific or economic value.” NSCID No. 9, Jul. 1, 1948 (National Archives and Records Administration, RG 59, Records
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of the Department of State, Records of the Executive Secretariat, NSC Files: Lot 66 D 195); see also NSCID No. 9, Mar. 10, 1950, supra.
“Foreign communications” thus turned upon the nature of the entity engaged in communications: i.e., a foreign power, or an individual acting on behalf of a foreign power.
The NSA did not (indeed, could not) discuss NSCID 9 during the Church Committee’s public hearings. However, the Director of Central Intelligence had issued a directive that the NSA did discuss, which employed a definition of foreign communications that excluded communications between U.S. citizens or entities. Church Committee Report, Vol. 5, supra, at 9. In keeping with these understandings, the NSA focused on communications conducted wholly or partly outside the United States and not targeted at U.S. persons.
Testifying in 1975 before the Church Committee, Lieutenant General Lew Allen, Jr., Director, National Security Agency explained that the NSA did not at that time, nor had it (with one exception—i.e., individuals whose names were contained on the NSA’s watch list) “conducted intercept operations for the purpose of obtaining the communications of U.S. citizens.” Id. Nevertheless, “some circuits which are known to carry foreign communications necessary for foreign intelligence will also carry personal communications between U.S. citizens, one of whom is at a foreign location.” Id.
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Central to Allen’s assertion was the understanding that, to constitute foreign communications, and to legitimate the collection of information on U.S. citizens, the target of the surveillance must be a foreign power, or an agent of a foreign power, and at least one party to the communications must be outside the country.
The Senate considered even this approach, in light of the broad swathes of information obtained about U.S. citizens, to run afoul of the Fourth Amendment. Two NSA programs, in particular, generated significant concern.
2. Project MINARET, Introduced to Collect Foreign Intelligence Information, Ended up Intercepting Hundreds of U.S. Citizens’ Communications
Like the Internal Revenue Service (“IRS”), the FBI, and the CIA, the NSA had composed a list of U.S. citizens and non-U.S. citizens subject to surveillance. Church Committee Report, Vol. 5, supra, at 3. The program, which operated 19671973, started out by narrowly focusing on the international communications of U.S. citizens traveling to Cuba. It quickly expanded, however, to include individuals (a) involved in civil disturbances, (b) suspected of criminal activity, (c) implicated in drug activity, (d) of concern to those tasked with Presidential protection, and (e) suspected of involvement in international terrorism. Id. at 10-11.
In 1969 the collection of information on individuals included in the watch list became known as Project MINARET. Id. at 30. Senators and members of the public expressed alarm about the privacy implications. Central to the legislators’ concern
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was the potential for such programs to target communications of a wholly domestic nature.
Senator (later Vice President) Walter Mondale, articulated the Committee’s disquiet:
Given another day and another President, another perceived risk and someone breathing hot down the neck of the military leader then in charge of the NSA: demanding a review based on another watch list, another wide sweep to determine whether some of the domestic dissent is really foreign based, my concern is whether that pressure could be resisted on the basis of the law or not . . . [W]hat we have to deal with is whether this incredibly powerful and impressive institution . . . could be used by President ‘A’ in the future to spy upon the American people. . . [W]e need to . . . very carefully define the law, spell it out so that it is clear what [the Director of the NSA’s authority is and is not]. Id. at 36.
Senator Mondale then asked NSA Director General Lew Allen whether he would object to a new law clarifying that the NSA did not have the authority to collect domestic information on U.S. citizens. Allen indicated that he did not object. Id. at 36.
Project MINARET, which represented precisely the type of surveillance program that FISA was designed to forestall, was not nearly as extensive as the telephony metadata program at issue in this case. Over the course of Project MINARET, for instance, the watch list expanded to include approximately 1,650 U.S. citizens in total. Id. at 12. At no time were there more than 800 U.S. citizens’ names on the list, out of a population of about 200 million Americans. Id. at 30, 3334.
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Today, in contrast, there are approximately 316 million Americans, United States Census Bureau, U.S. and World Population Clock (Aug. 28, 2013), http://www.census.gov/popclock/, most of whom would have been subject to the Verizon (and similar) orders issued by the Foreign Intelligence Surveillance Court (“FISC”). This number eclipses the total number of U.S. citizens subject to one of the most egregious programs previously operated by the NSA, which gave rise to FISA in the first place.
The telephony program also goes substantially beyond the previous surveillance operation in its focus on calls of a purely local nature. According to the Director the National Security Agency, Project MINARET did not monitor entirely domestic conversations. Testimony of General Lew Allen, Director, National Security Agency, Church Committee Report, Vol. 5, supra, at 36.
In contrast, the Order issued in April 2013 by FISC specifically requires the collection of information “wholly within the United States, including local telephone calls.” In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from Verizon Business Network Services, Inc., on Behalf of MCI Communication Services, Inc., D/B/A Verizon Business Services, Secondary Order, No. BR 13-80 (FISA Ct. Apr. 25, 2013). Set to expire July 19, 2013, the Office of the Director of National Intelligence has confirmed that FISC has again renewed the order. Press Release, Office of the Director of National Intelligence, Foreign Intelligence Surveillance Court Renews
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Authority to Collect Telephony Metadata (July 19, 2013), http://www.dni.gov/index.php/newsroom/press-releases/191-press-releases2013/898-foreign-intelligence-surveillance-court-renews-authority-to-collecttelephony-metadata.
3. The NSA’s Operation SHAMROCK Involved the Large-scale Collection of U.S. Citizens’ Communications from Private Companies
During the Senate hearings, much concern was expressed about whether to make public a second, highly classified, large-scale surveillance program run by the NSA. Church Committee Report, Vol. 5, supra, at 48-57, 60-61, 63. The committee decided to discuss the program in open session because it was illegal and violated the Fourth Amendment. Id. at 57 (statement of Senator Frank Church, Chairman, Select Committee to Study Governmental Operations with Respect to Intelligence Activities of the United States of the United States Senate).
Operation SHAMROCK was the cover name given to a program in which the government had convinced three major telegraph companies (RCA Global, ITT World Communications, and Western Union International) to forward international telegraphic traffic to the Department of Defense. Id. at 57-58. For nearly thirty years, the NSA and its predecessors received copies of most international telegrams that had originated in, or been forwarded through, the United States. Id. at 58.
Operation SHAMROCK stemmed from wartime measures, in which companies turned messages related to foreign intelligence targets over to military
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intelligence. In 1947, the Department of Defense negotiated the continuation of the program in return for protecting the companies from criminal liability and public exposure. Id.
Like Project MINARET, the scope of the program gradually expanded. Initially, the program focused on foreign targets. Eventually, however, as new technologies became available, the NSA began extracting U.S. citizens’ communications. Id. at 58-59. It selected approximately 150,000 messages per month for further analysis, distributing some messages to other agencies. Id. at 60.
Senators expressed strong concern at the resulting privacy violations, inviting the Attorney General before the Select Committee to discuss “the Fourth Amendment of the constitution and its application to the 20th century problems of intelligence and surveillance.” Id. at 65. Senator Church explained:
In the case of the NSA, which is of particular concern to us today, the rapid development of technology in the area of electronic surveillance has seriously aggravated present ambiguities in the law. The broad sweep of communications interception by NSA takes us far beyond the previous fourth amendment controversies where particular individuals and specific telephone lines were the target. Id.
The question that confronted Congress was how to control new, sophisticated technologies, thus allowing intelligence agencies to perform their legitimate foreign
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intelligence activities, without also allowing them to invade U.S. citizens’ privacy by allowing them access to information unrelated to national security. Id.
In the absence of any governing statute, Attorney General Edward H. Levi’s approach had been to authorize the requested surveillance only where a clear nexus existed between the target and a foreign power. Id. at 71. The Attorney General sought to distinguish the process from the British Crown’s use of writs of assistance, in the shadow of which James Madison had drafted the Fourth Amendment. Id. at 71-72. The Founders’ objection to such instruments was simple: were the government to be granted the authority to break into and to search individuals’ homes without cause, the private affairs of every person would be subject to inspection. Id. at 72.
In contrast, Levi argued, the exercise of electronic wiretaps for foreign intelligence gathering fell subject to Attorney General review. Nevertheless, he recognized the need for new laws to address the ambiguity that attended the use of modern technologies. The Senators agreed. See, e.g., id. at 64-65, 84, 125.
B. Other Intelligence Agencies Similarly Engaged in Sweeping Data Collection Programs
In the 1960s and 1970s the FBI, CIA, IRS, U.S. Army, and other federal entities similarly engaged in broad, domestic intelligence-gathering operations. Details relating to many of these programs, such as the FBI’s COINTELPRO and the CIA’s Operation CHAOS, were uncovered by the exhaustive investigations of Senate Select Committee. See, e.g., 6 Intelligence Activities: Senate Resolution 21:
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Hearings Before the Select Committee to Study Governmental Operations with Respect to Intelligence Activities of the United States of the United States Senate, 94th Cong., 1st Sess. (1975).
The Church Committee was not the only forum in which such programs were addressed. In 1975 President Ford issued an executive order establishing the President’s Commission on CIA Activities Within the United States (“Rockefeller Commission”). Executive Order No. 11,828, 3 C.F.R. 933 (1975). Ford appointed Vice President Nelson Rockefeller as Chair. Commission on CIA Activities Within the United States: Announcement of Appointment of Chairman and Members, 11 Weekly Comp. Pres. Doc. 25 (Jan. 5, 1975).
The public charges to which the Rockefeller Commission responded included large-scale domestic surveillance of U.S. citizens; retaining dossiers on U.S. citizens; and aiming such collection efforts at individuals who disagreed with government policies. Report to the President by the Commission on CIA Activities Within the United States 9 (June 1975). The Commission’s aim was further supplemented by allegations that for the past twenty years the CIA had (a) intercepted and opened personal mail in the United States; (b) infiltrated domestic dissident groups and intervened in domestic politics; (c) engaged in illegal wiretaps and break-ins; and (d) improperly assisted other government agencies. Id.
Like the Senate Select Committee, a key question confronting the Rockefeller Commission was how to define the term “foreign intelligence”—a crucial step in
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protecting Americans’ right to privacy. Accordingly, in its first recommendation, the Rockefeller Commission advised that Section 403 of the 1947 National Security Act be amended to make it explicit that the CIA’s activities solely related to “foreign intelligence.” Id. at 12. Any involvement of U.S. citizens could only be incidental to foreign intelligence collection. Id.
The Commission reinforced the strict separation between foreign targets and U.S. persons through its second recommendation: that the President, via Executive Order, “prohibit the CIA from the collection of information about the domestic activities of United States citizens (whether by overt or covert means), the evaluation, correlation, and dissemination of analyses or reports about such activities, and the storage of such information.” Id. at 15.
The revelation of these programs undermined citizens’ confidence in the intelligence agencies. 124 Cong. Rec. 36,415 (1978). An important question facing Congress was how to rebuild confidence in the system, and how to empower the intelligence agencies to conduct electronic surveillance, while protecting the privacy rights of U.S. citizens.
In 1972 the Supreme Court had held that the electronic surveillance of domestic groups, even where security issues might be involved, required that the government first obtain a warrant. The “inherent vagueness of the domestic security concept”, and the significant possibility that it be abused to quash political dissent, underscored the importance of the Fourth Amendment—particularly when
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the government was engaged in spying on its own citizens. United States v. U.S. District Court, 407 U.S. 297 (1972).
Justice Powell, writing for the Court, emphasized the limits on the scope of the decision: “[T]his case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.” Id. at 321-322. Different standards and procedures might apply to domestic security surveillance than those required by Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Id. at 322. The Court issued an invitation to Congress to pass new laws covering such cases. Id. at 323.
C. Congress Passed the Foreign Intelligence Surveillance Act to Prevent Agencies from Using Foreign Intelligence Gathering as an Excuse for Domestic Surveillance
The Foreign Intelligence Surveillance Act of 1976 became the first bill introduced into Congress, and supported by the President and Attorney General, that would require judicial warrants in foreign intelligence cases. 124 Cong. Rec. 35,389 (1978); see also Foreign Intelligence Surveillance Act of 1976, S. 3197, 94th Cong (1976). Its successor bill, S.1566, became the Foreign Intelligence Surveillance Act of 1978. 124 Cong. Rec. 35,389 (1978); see also Foreign Intelligence Surveillance Act of 1978, S. 1566, 95th Cong (1978).
From the beginning, Congressional members made it clear that the legislation was designed to prevent the types of broad surveillance programs and
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incursions into privacy represented by Project MINARET, Operation SHAMROCK, COINTELPRO, Operation CHAOS, and other intelligence-gathering initiatives that had come to light.
During consideration of the Conference Report on S. 1566, for instance, Senator Ted Kennedy (D-MA) noted, “The abuses of recent history sanctioned in the name of national security highlighted the need for this legislation.” 124 Cong. Rec. 34,845 (1978). The debate represented the “final chapter in the ongoing 10-year debate to regulate foreign intelligence electronic surveillance.” Id. With the passage of FISA, the Senate would “at long last place foreign intelligence electronic surveillance under the rule of law.” Id. Senator Birch Bayh, Jr. (D-IN) echoed Kennedy’s sentiments, “This bill, for the first time in history, protects the rights of individuals from government activities in the foreign intelligence area.” Id. Senator Charles Mathais (R-MD) noted that enactment of the legislation would be a milestone, ensuring “that electronic surveillance in foreign intelligence cases will be conducted in conformity with the principles set forth in the fourth amendment.” 124 Cong. Rec. 35,389 (1978) (statement of Senator Mathais). II. Congress Inserted Four Protections to Limits the Nature of Foreign
Intelligence Gathering Congress purposefully circumscribed the NSA’s authorities by adopting four key protections. First, Congress required that the target of surveillance be a foreign power or an agent of a foreign power. The Senate initially defined “foreign power”, with regard to terrorist groups, to mean a foreign-based entity. The House
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amendments, in contrast, understood “foreign power” to include groups engaged in international terrorism or activities in preparation therefor. The Conference adopted the House definition, with the idea that limiting such surveillance solely to foreign-based groups would be unnecessarily burdensome. 124 Cong. Rec. 33,782 (1978); see also 50 U.S.C. § 1801. In both Houses, throughout this nuanced discussion, underlying the definition of “foreign power” was the understanding that information would be collected specifically in regard to single individuals or entities tied to foreign powers. 124 Cong. Rec. 33,782 (1978).
Congress directed that intelligence agencies first identify the target in order to justify the resulting incursion into privacy. The data mining telephony program, in contrast, goes about the process in precisely the opposite direction: it uses information obtained through the collection of vast amounts of information to identify potential targets of foreign intelligence interest.
Second, in response to concerns evinced in the Senate with regard to determining whether the (specific) target was a foreign power or an agent thereof, the final bill adopted a standard used in a criminal law: probable cause. 50 U.S.C. § 1805(a)(2). The agency requesting surveillance would have to demonstrate, with some particularity, that the entity to be placed under surveillance was a foreign power or an agent thereof, and that the target was likely to use the facilities to be monitored.
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Third, the statute limited the breadth of surveillance operations by requiring that probable cause could not be established solely on the basis of otherwise protected first amendment activity. Id.
Fourth, Congress insisted on minimization procedures to protect activity not related to foreign intelligence from government scrutiny. 50 U.S.C. § 1804(a)(4). The legislature insisted on minimizing not just the analysis of the information, but its “acquisition and retention.” 50 U.S.C. § 1804(h) (emphasis added). The NSA’s telephony metadata program, in contrast, makes no effort to limit the acquisition or retention of the information in question. It insists that all telephone calls, including those entirely local in nature, be included in the data turned over to the government.
A key principle throughout the debates was the importance of heightened protections where U.S. persons’ information may be involved. The conference was deadlocked on this point until the Senate receded and accepted the House language exempting certain particularly sensitive surveillance (i.e., relating solely to foreign powers) from judicial review, on the grounds that (1) such surveillance did not involve U.S. persons; and (2) having removed the most sensitive information from external review, the Foreign Intelligence Surveillance Court could be given a greater role in protecting the rights of each U.S. person targeted by the government. 124 Cong. Rec. 36,409 (1978).
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FISA represents the culmination of a multi-branch, multi-year, cross-party initiative directed at bringing the collection of foreign intelligence within a narrowly circumscribed, legal framework. In 1972 the Senate Committee on the Judiciary’s Subcommittee on Administrative Practice and Procedure held extensive hearings on the subject of warrantless wiretapping. 122 Cong. Rec. 7,543 (1976). In 1975 the subcommittee issued a report jointly with a special subcommittee of the Foreign Relations Committee, calling for Congress to introduce legislation governing foreign intelligence collection. Id. In 1976 President Ford and Attorney General Levi introduced the first foreign intelligence bill. Foreign Intelligence Surveillance Act of 1976, H.R. 12750, 94th Cong. (introduced in the House, Mar. 23, 1976). President Carter and Attorney General Bell subsequently supported S. 1566, which became FISA. 124 Cong. Rec. 36,409 (1978). Congress consulted the NSA, FBI, CIA, and representatives of interested citizen groups, gaining broad support for the measure. 124 Cong. Rec. 37,738 (1978); 124 Cong. Rec. 36,414 (1978).
Resultantly, the measure passed by significant majorities. S. 1566 passed the Senate 95 to 1. Id. H.R. 7308 passed the House 246 to 128. Id. In October 1978 the Senate adopted the Conference Report “by an overwhelming voice vote, with no dissenting voice vote.” Id. The House of Representatives, in turn, adopted the Conference Report by a vote of 226 to 176. 124 Cong. Rec. 36,417-18 (1978). III. The NSA’s Telephony Metadata Program is Inconsistent with FISA
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The NSA’s telephony metadata program, conducted under 50 U.S.C. § 1861, contradicts FISA’s purpose and design. To understand the language otherwise would be to vitiate the statute in terms of the restrictions placed on the intelligence agencies and the responsibilities assigned to the Foreign Intelligence Surveillance Court.
In 1998 Congress amended FISA to authorize the production of certain kinds of business records of those suspected of being foreign powers or agents of a foreign power: documents kept by common carriers, public accommodation facilities, storage facilities, and vehicle rental facilities. Intelligence Authorization Act for Fiscal Year 1999, Pub. L. 105-272, § 602, 112 Stat. 2396, 2410 (1998).
Congress assigned the terms “foreign power”, “agent of a foreign power, “foreign intelligence information”, and “international terrorism” the same meaning as employed in relation to electronic surveillance. Id. Congress also required intelligence agencies to follow the same steps as those taken with regard to electronic surveillance: i.e., to submit an application to FISC to obtain an order, which then compels the companies to hand over the records. Id.
In 2001 Congress expanded the types of records that could be obtained, authorizing intelligence agencies to apply for an order from FISC “requiring the production of any tangible things (including books, records, papers, documents, and
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other items)”.2 Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (“USA PATRIOT Act”) Act of 2001,
Pub. L. 107-56, § 215, 115 Stat. 272, 287 (2001) (codified as amended at 50 U.S.C. §
1861). Congress eliminated any restriction on the types of businesses or entities on
which such an order could be served. Id. It retained, however, the general contours
of FISA, specifying that such items be obtained in the course of “an investigation to
protect against international terrorism or clandestine intelligence activities.” Id.
Congress required that such investigation, where directed towards a U.S. person,
not be “conducted solely upon the basis of activities protected by the first
amendment to the Constitution.” Id.
Section 215 of the USA PATRIOT Act (codified at 50 U.S.C. § 1861) was set to
expire December 31, 2005. Id. Congress has since renewed it seven times. An Act to
Amend the USA PATRIOT Act to Extend the Sunset of Certain Provisions of that
Act and the Lone Wolf Provision of the Intelligence Reform and Terrorism
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	    2 Congress also amended FISA to require that applicants to FISC certify that “a significant purpose” of the surveillance be to obtain foreign intelligence. 50 U.S.C. § 1804(a)(7)(B). This shift, from the prior language that “the” purpose be to obtain foreign intelligence, had the effect of removing a wall that had built up within the Department of Justice between intelligence officers and criminal prosecutors. The government argued that the latter should be allowed to advise the former concerning the initiation, operation, continuation, or expansion of FISA searches or surveillance. In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611, 623 (FISA Ct. 2002). The Foreign Intelligence Surveillance Court of Review upheld the change. In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002). This alteration, however, simply recognizes parallels between criminal violations and national security threats. It does not suddenly shift the focus of the statute to allow intelligence agencies to collect information on millions of Americans not suspected of any wrongdoing.
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Prevention Act of 2004 to July 1, 2006, Pub. L. No. 109-160, 119 Stat. 2957 (2005) (extension until Feb. 3, 2006); An Act To Amend the USA PATRIOT Act to Extend the Sunset of Certain Provisions of Such Act, Pub. L. No. 109-170, 120 Stat. 3 (2006) (extension until Mar. 10, 2006); USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, 120 Stat. 192 (2006) (extension until Dec. 31, 2009); Department of Defense Appropriations Act, 2010, Pub. L. No. 111-118, 123 Stat. 3409 (2009) (allowing for a short-term, 60-day extension of 50 U.S.C. 1861 until February 28, 2010); An Act to Extend Expiring Provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004 until February 28, 2011, Pub. L. No. 111-141, 124 Stat. 37 (2010) (extension until Feb. 28, 2011); FISA Sunsets Extension Act of 2011, Pub. L. No. 112-3, 125 Stat. 5 (2011) (extension until May 27, 2011); PATRIOT Sunsets Extension Act of 2011, Pub. L. No. 112-14, 125 Stat. 216 (2011) (extension until May 26, 2011).
In 2005, in the course of extending the tangible goods provision, Congress added language tying the section more closely to FISA’s overarching structure. It required applicants to submit a statement of facts, establishing “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation . . . to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” USA PATRIOT Improvement and Reauthorization Act of
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2005 § 106, 120 Stat. at 196 (codified as amended at 50 U.S.C. § 1861). Congress required in addition “an enumeration of the minimization procedures” related to the retention and dissemination of any tangible things obtained under 50 U.S.C. § 1861. Id.
The government argues that the NSA’s telephony metadata program is consistent with the language of 50 U.S.C. § 1861 in that all telephone calls in the United States, including those of a wholly local nature, are “relevant” to foreign intelligence investigations.
This interpretation directly contradicts Congress’ intent in introducing § 215. At the introduction of the measure Senator Arlen Specter explained that the purpose of the language was to create an incentive for the government to use the authority only when it could demonstrate a connection to a particular suspected terrorist or spy. 151 Cong. Rec., 13,441 (2005). During a House Judiciary Committee meeting on July 17, 2013, Representative James Sensenbrenner (R-WI), reiterated that the reason Congress inserted “relevant” into the statute was to ensure that only information directly related to national security probes would be included—not to authorize the ongoing collection of all phone calls placed and received by millions of Americans not suspected of any wrongdoing. Oversight of the Administration’s Use of FISA Authorities: Hearing Before H. Comm. on the Judiciary, 113th Cong. (2013). Members of the Committee made similar claims. Id.
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The government’s interpretation of “relevant” also contradicts Congress’ aim in enacting FISA. As discussed above, Congress designed the statute to be used in specific cases of foreign intelligence gathering. By limiting the targets of electronic surveillance, requiring probable cause, disallowing investigations solely on the basis of otherwise protected first amendment activities, and insisting on minimization procedures, Congress sought to restrict agencies’ ability to violate U.S. citizens’ privacy. The business records provision built on this approach, adopting the same definitions that prevailed in other portions of the statute, and requiring that agencies obtain orders to collect information on individuals believed to be foreign powers or agents of a foreign power. Congress later deliberately inserted “relevant” into the statute to ensure the continued specificity of targeted investigations.
In addition, Congress empowered the FISC to consider each instance of placing an electronic wiretap. The NSA’s program, in contrast, delegates such oversight to the executive, leaving all further inquiries of the databases to the agency involved. Once the NSA collects the telephony metadata, it is the NSA (and not the FISC) that decides which queries to use, and which individuals to target within the database.
This change means that the FISC is not performing its most basic function: protecting U.S. persons from undue incursions into their privacy. Instead, it leaves the determination of whom to target to the agency’s discretion.
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CONCLUSION For the reasons stated above, this Court should find the telephony metadata program unlawful, it should enjoin the government from continuing the program under the Verizon order or any successor thereto, and it should require the government to purge all call records related to the Plaintiffs’ communications previously collected pursuant to the telephony metadata collection program.

DATED: August 30, 2013 Respectfully submitted,

LAURA K. DONOHUE* Professor of Law Georgetown University Law Center 600 New Jersey Ave., NW Washington, DC 20001 (202) 662-9455 lkdonohue@ law.georgetown.edu *Admitted pro hac vice

ERWIN CHEMERINSKY Dean, Distinguished Professor of Law Raymond Pryke Professor of First Amendment Law University of California, Irvine School of Law 401 E. Peltason Dr. Suite 1000 Irvine, CA 92697 (949) 824-7722 echemerinsky@law.uci.edu

On behalf of Amicus Curiae Former Members of the Church Committee and Law Professors

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 Case 14-42, Document 168-1, 05/07/2015, 1503586, Page1 of 97
14‐42 ACLU v. Clapper

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2014

(Argued: September 2, 2014 Decided: May 7, 2015)

Docket No. 14‐42‐cv

________________

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

— v. —

Plaintiffs‐Appellants,

JAMES R. CLAPPER, in his official capacity as Director of National Intelligence, MICHAEL S. ROGERS, in his official capacity as Director of the National Security
Agency and Chief of the Central Security Service, ASHTON B. CARTER, in his official capacity as Secretary of Defense, LORETTA E. LYNCH, in her 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‐Appellees.*

* The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above. See Fed. R. App. P. 43(c)(2).

Case 14-42, Document 168-1, 05/07/2015, 1503586, Page2 of 97
B e f o r e: SACK and LYNCH , Circuit Judges, and BRODERICK, District Judge.** __________________
Plaintiffs‐appellants American Civil Liberties Union and American Civil Liberties Union Foundation, and New York Civil Liberties Union and New York Civil Liberties Union Foundation, appeal from a decision of the United States District Court for the Southern District of New York (William H. Pauley, III, Judge) granting defendants‐appellees’ motion to dismiss and denying plaintiffs‐ appellants’ request for a preliminary injunction. The district court held that § 215 of the PATRIOT Act impliedly precludes judicial review; that plaintiffs‐ appellants’ statutory claims regarding the scope of § 215 would in any event fail on the merits; and that § 215 does not violate the Fourth or First Amendments to the United States Constitution. We disagree in part, and hold that § 215 and the statutory scheme to which it relates do not preclude judicial review, and that the bulk telephone metadata program is not authorized by § 215. We therefore
** The Honorable Vernon S. Broderick, of the United States District Court for the Southern District of New York, sitting by designation.
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VACATE the judgment of the district court and REMAND for further
proceedings consistent with this opinion.
VACATED AND REMANDED.
Robert D. Sack, Circuit Judge, concurs in the opinion of the Court and files a separate concurring opinion.
ALEXANDER ABDO, American Civil Liberties Union Foundation (Jameel Jaffer, Patrick Toomey, Brett Max Kaufman, Catherine Crump, American Civil Liberties Union Foundation, New York, NY; Christopher T. Dunn, Arthur N. Eisenburg, New York Civil Liberties Union Foundation, New York, NY, on the brief), New York, NY, for Plaintiffs‐Appellants.
STUART F. DELERY, Assistant Attorney General, Civil Division, United States Department of Justice (Douglas N. Letter, H. Thomas Byron III, Henry C. Whitaker, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC; Preet Bharara, United States Attorney for the Southern District of New York, New York, NY; David S. Jones, John D. Clopper, Emily E. Daughtry, Assistant United States Attorneys, New York, NY, on the brief), Washington, D.C., for Defendants‐Appellees.
Laura K. Donohue, Georgetown University Law Center, Washington DC, Erwin Chemerinsky, University of California, Irvine School of Law, Irvine, CA, for Amici Curiae Former Members of the Church Committee and Law Professors in Support of Plaintiffs‐Appellants.
Charles S. Sims, Proskauer Rose LLP, New York, NY, for Amici Curiae Senator Ron Wyden, Senator Mark Udall, and Senator Martin Heinrich in Support of Plaintiffs‐Appellants.
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Cindy Cohn, Mark Rumold, Andrew Crocker, Electronic Frontier Foundation, San Francisco, CA, for Amici Curiae Experts in Computer and Data Science in Support of Appellants and Reversal.
John W. Whitehead, Douglas R. McKusick, The Rutherford Institute, Charlottesville, Virginia, Daniel L. Ackman, Law Office of Daniel Ackman, New York, NY, for Amicus Curiae The Rutherford Institute in Support of Appellants and Reversal.
Edward J. Davis, Linda Steinman, Lacy H. Koonce, III, Davis Wright Tremaine LLP, New York, NY, for Amicus Curiae PEN American Center, Inc., in Support of Appellants.
John Frazer, Law Office of John Frazer, PLLC, Fairfax, VA, for Amicus Curiae National Rifle Association of America, Inc., in Support of Plaintiffs‐ Appellants and Supporting Reversal.
Jonathan Hafetz, Association of the Bar of the City of New York, Gary D. Sesser, Stephen L. Kass, Michael Shapiro, Laura A. Zaccone, Carter Ledyard & Milburn LLP, New York, NY, for Amicus Curiae Association of the Bar of the City of New York Supporting Plaintiffs‐Appellants’ Brief.
GERARD E. LYNCH, Circuit Judge:
This appeal concerns the legality of the bulk telephone metadata collection
program (the “telephone metadata program”), under which the National Security
Agency (“NSA”) collects in bulk “on an ongoing daily basis” the metadata
associated with telephone calls made by and to Americans, and aggregates those
metadata into a repository or data bank that can later be queried. Appellants
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challenge the program on statutory and constitutional grounds. Because we find that the program exceeds the scope of what Congress has authorized, we vacate the decision below dismissing the complaint without reaching appellants’ constitutional arguments. We affirm the district court’s denial of appellants’ request for a preliminary injunction.
BACKGROUND In the early 1970s, in a climate not altogether unlike today’s, the intelligence‐gathering and surveillance activities of the NSA, the FBI, and the CIA came under public scrutiny. The Supreme Court struck down certain warrantless surveillance procedures that the government had argued were lawful as an exercise of the President’s power to protect national security, remarking on “the inherent vagueness of the domestic security concept [and] the necessarily broad and continuing nature of intelligence gathering.” United States v. U.S. Dist. Court for the E. Dist. of Mich. (Keith), 407 U.S. 297, 320 (1972). In response to that decision and to allegations that those agencies were abusing their power in order to spy on Americans, the Senate established the Select Committee to Study Governmental Operations with Respect to Intelligence Activities (the “Church Committee”) to investigate whether the intelligence agencies had engaged in
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unlawful behavior and whether legislation was necessary to govern their activities. The Church Committee expressed concerns that the privacy rights of U.S. citizens had been violated by activities that had been conducted under the rubric of foreign intelligence collection.
The findings of the Church Committee, along with the Supreme Court’s decision in Keith and the allegations of abuse by the intelligence agencies, prompted Congress in 1978 to enact comprehensive legislation aimed at curtailing abuses and delineating the procedures to be employed in conducting surveillance in foreign intelligence investigations. That legislation, the Foreign Intelligence Surveillance Act of 1978 (“FISA”), Pub. L. No. 95‐511, 92 Stat. 1783 (1978) (codified as amended at 50 U.S.C. §§ 1801 et seq.), established a special court, the Foreign Intelligence Surveillance Court (“FISC”), to review the government’s applications for orders permitting electronic surveillance. See 50 U.S.C. § 1803. Unlike ordinary Article III courts, the FISC conducts its usually ex parte proceedings in secret; its decisions are not, in the ordinary course, disseminated publicly. Id. § 1803(c).
We are faced today with a controversy similar to that which led to the Keith decision and the enactment of FISA. We must confront the question
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whether a surveillance program that the government has put in place to protect national security is lawful. That program involves the bulk collection by the government of telephone metadata created by telephone companies in the normal course of their business but now explicitly required by the government to be turned over in bulk on an ongoing basis. As in the 1970s, the revelation of this program has generated considerable public attention and concern about the intrusion of government into private matters. As in that era, as well, the nation faces serious threats to national security, including the threat of foreign‐ generated acts of terrorism against the United States. Now, as then, Congress is tasked in the first instance with achieving the right balance between these often‐ competing concerns. To do so, Congress has amended FISA, most significantly, after the terrorist attacks of September 11, 2001, in the PATRIOT Act. See USA PATRIOT ACT of 2001, Pub. L. No. 107‐56, 115 Stat. 272 (2001). The government argues that § 215 of that Act authorizes the telephone metadata program. See id. § 215, 115 Stat. at 287 (codified as amended at 50 U.S.C. § 1861). I. Telephone Metadata
Before proceeding to explore the details of § 215 of the PATRIOT Act, we pause to define “telephone metadata,” in order to clarify the type of information
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that the government argues § 215 authorizes it to collect in bulk. Unlike what is gleaned from the more traditional investigative practice of wiretapping, telephone metadata do not include the voice content of telephone conversations. Rather, they include details about telephone calls, including, for example, the length of a call, the phone number from which the call was made, and the phone number called. Metadata can also reveal the user or device making or receiving a call through unique “identity numbers” associated with the equipment (although the government maintains that the information collected does not include information about the identities or names of individuals), and provide information about the routing of a call through the telephone network, which can sometimes (although not always) convey information about a caller’s general location. According to the government, the metadata it collects do not include cell site locational information, which provides a more precise indication of a caller’s location than call‐routing information does.
That telephone metadata do not directly reveal the content of telephone calls, however, does not vitiate the privacy concerns arising out of the government’s bulk collection of such data. Appellants and amici take pains to emphasize the startling amount of detailed information metadata can reveal –
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“information that could traditionally only be obtained by examining the contents
of communications” and that is therefore “often a proxy for content.” Joint
App’x 50 (Declaration of Professor Edward W. Felten). For example, a call to a
single‐purpose telephone number such as a “hotline” might reveal that an
individual is: a victim of domestic violence or rape; a veteran; suffering from an
addiction of one type or another; contemplating suicide; or reporting a crime.
Metadata can reveal civil, political, or religious affiliations; they can also reveal
an individual’s social status, or whether and when he or she is involved in
intimate relationships.1
1 A report of a recent study in Science magazine revealed how much information can be gleaned from credit card metadata. In the study, which used three months of anonymous credit card records for 1.1 million people, scientists were able to reidentify 90% of the individuals where they had only four additional “spatiotemporal points” of information – for example, information that an individual went to one particular store on four specific days. Such information could be gathered from sources as accessible as a “tweet” from that individual. Yves‐Alexandre de Montjoye, Laura Radaelli, Vivek Kumar Singh, Alex “Sandy” Pentland, Unique in the Shopping Mall: On the Reidentifiability of Credit Card Metadata, Science, Jan. 30, 2015, at 536. The study’s authors concluded that, in the context of most large‐scale metadata sets, it would not be difficult to reidentify individuals even if the data were anonymized. Id. at 539. While credit card data differ in important ways from telephone data, the study illustrates the ways in which metadata can be used by sophisticated investigators to deduce significant private information about individuals.
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We recognize that metadata exist in more traditional formats, too, and that law enforcement and others have always been able to utilize metadata for investigative purposes. For example, just as telephone metadata may reveal the charitable organizations that an individual supports, observation of the outside of an envelope sent at the end of the year through the United States Postal Service to such an organization might well permit similar inferences, without requiring an examination of the envelope’s contents. But the structured format of telephone and other technology‐related metadata, and the vast new technological capacity for large‐scale and automated review and analysis, distinguish the type of metadata at issue here from more traditional forms. The more metadata the government collects and analyzes, furthermore, the greater the capacity for such metadata to reveal ever more private and previously unascertainable information about individuals. Finally, as appellants and amici point out, in today’s technologically based world, it is virtually impossible for an ordinary citizen to avoid creating metadata about himself on a regular basis simply by conducting his ordinary affairs. II. Section 215
The original version of § 215, which pre‐dated the PATRIOT Act, allowed 10

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the Director of the FBI or his designee to obtain orders from the FISC authorizing common carriers, among others, to provide to the government certain business records for the purpose of foreign intelligence and international terrorism investigations where there existed “specific and articulable facts giving reason to believe that the person to whom the records pertain [wa]s a foreign power or an agent of a foreign power.” That provision was enacted in 1998 as an amendment to FISA. See Intelligence Authorization Act for Fiscal Year 1999, Pub. L. No. 105‐ 272, § 602, 112 Stat. 2396, 2410‐11 (1998). The PATRIOT Act substantially revised § 215 to provide for the production not only of “business records” but also of “any tangible things,” and to eliminate the restrictions on the types of businesses such orders can reach. See USA PATRIOT ACT of 2001, Pub. L. No. 107‐56, § 215. As subsequently amended by successor bills to the PATRIOT Act, the current version of § 215 allows the Director of the FBI or his designee to
make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.
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50 U.S.C. § 1861(a)(1). In its current form, the provision requires such an application to include
a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) of this section to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.
Id. § 1861(b)(2)(A). Such an order “may only require the production of a tangible thing if such thing can be obtained with a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation or with any other order issued by a court of the United States directing the production of records or tangible things.” Id. § 1861(c)(2)(D). Finally, the statute requires the Attorney General to “adopt specific minimization procedures governing the retention and dissemination by the [FBI] of any tangible things, or information therein, received by the [FBI] in response to an order under this subchapter.” Id. § 1861(g)(1). Because § 215 contained a “sunset” provision from its inception, originally terminating its authority on December 31, 2005, it has required subsequent renewal. USA PATRIOT Act of 2001, Pub. L. No. 107‐56, § 224, 115 Stat. at 295.
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Congress has renewed § 215 seven times, most recently in 2011, at which time it was amended to expire on June 1, 2015. See PATRIOT Sunsets Extension Act of 2011, Pub. L. No. 112‐14, 125 Stat. 216 (2011). III. The Telephone Metadata Program
Americans first learned about the telephone metadata program that appellants now challenge on June 5, 2013, when the British newspaper The Guardian published a FISC order leaked by former government contractor Edward Snowden. The order directed Verizon Business Network Services, Inc. (“Verizon”), a telephone company, to produce to the NSA “on an ongoing daily basis . . . all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” In re Application of the FBI for an Order Requiring the Prod. of Tangible Things From Verizon Bus. Network Servs., Inc., ex rel. MCI Commc’n Servs., Inc., d/b/a Verizon Bus. Servs. (“Verizon Secondary Order”), No. BR 13‐80, slip op. at 2 (F.I.S.C. Apr. 25, 2013). The order thus requires Verizon to produce call detail records, every day, on all telephone calls made through its systems or using its services where one or both ends of the call are located in the United States.
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After the order was published, the government acknowledged that it was part of a broader program of bulk collection of telephone metadata from other telecommunications providers carried out pursuant to § 215. It is now undisputed that the government has been collecting telephone metadata information in bulk under § 215 since at least May 2006, when the FISC first authorized it to do so in a “Primary Order” describing the “tangible things” to be produced as “all call‐detail records or ‘telephony metadata’ created by [redacted] . . . , includ[ing] comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number[s], communications device identifier[s], etc.), trunk identifier, and time and duration of call.” In re Application of the FBI for an Order Requiring the Prod. of Tangible Things From [Redacted] (“2006 Primary Order”), No. BR 06‐05, slip op. at 2 (F.I.S.C. May 24, 2006), http://www.dni.gov/files/documents/section/pub_May%2024%202006%20Order %20from%20FISC.pdf.
That order specified that the items were to be produced to the NSA; that there were “reasonable grounds to believe the tangible things sought [were] relevant to authorized investigations . . . to protect against international
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terrorism”; and that the items sought “could be obtained with a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation or with any other order issued by a court of the United States directing the production of records or tangible things.” Id. at 3. The order required its recipient, upon receiving the “appropriate secondary order,”2 to “continue production on an ongoing daily basis . . . for the duration of th[e] order” and contemplated creation of a “data archive” that would only be accessed “when NSA has identified a known telephone number for which . . . there are facts giving rise to a reasonable, articulable suspicion that the telephone number is associated with [Redacted]”– presumably, with terrorist activity or a specific terrorist organization. Id. at 4‐5. The order also states that the NSA “exclusively will operate” the network on which the metadata are stored and processed. Id. at 5.
The government has disclosed additional FISC orders reauthorizing the program. FISC orders must be renewed every 90 days, and the program has therefore been renewed 41 times since May 2006. Most recently, the program
2 The order published in The Guardian and served on Verizon was one such “Secondary Order.”
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was reauthorized by the FISC on February 26, 2015; that authorization expires on June 1, 2015. See In re Application of the FBI for an Order Requiring the Prod. of Tangible Things From [Redacted], No. BR 15‐24 (F.I.S.C. Feb. 26, 2015), http://www.dni.gov/files/documents/0311/BR%2015‐24%20Primary%20Order%2 0‐%20Redacted.pdf.
The government disputes appellants’ characterization of the program as collecting “virtually all telephony metadata” associated with calls made or received in the United States, but declines to elaborate on the scope of the program or specify how the program falls short of that description. It is unclear, however, in what way appellants’ characterization of the program can be faulted. On its face, the Verizon order requires the production of “all call detail records or ‘telephony metadata’” relating to Verizon communications within the United States or between the United States and abroad. Verizon Secondary Order 2 (emphasis added). The Verizon order and the Primary Order described above reveal that the metadata collected include “comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment
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Identity (IMEI) number, etc.), trunk identifier,3 telephone calling card numbers, and time and duration of call.” Verizon Secondary Order 2; see also 2006 Primary Order 2. The government does not suggest that Verizon is the only telephone service provider subject to such an order; indeed, it does not seriously dispute appellants’ contention that all significant service providers in the United States are subject to similar orders.
The government explains that it uses the bulk metadata collected pursuant to these orders by making “queries” using metadata “identifiers” (also referred to as “selectors”), or particular phone numbers that it believes, based on “reasonable articulable suspicion,” to be associated with a foreign terrorist organization. Joint App’x 264 (Declaration of Teresa H. Shea). The identifier is used as a “seed” to search across the government’s database; the search results yield phone numbers, and the metadata associated with them, that have been in contact with the seed. Id. That step is referred to as the first “hop.” The NSA can then also search for the numbers, and associated metadata, that have been in contact with the numbers resulting from the first search – conducting a second
3 A “trunk identifier” provides information regarding how a call is routed through the telephone network, revealing general information about the parties’ locations.
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“hop.” Id. at 265. Until recently, the program allowed for another iteration of the process, such that a third “hop” could be conducted, sweeping in results that include the metadata of, essentially, the contacts of contacts of contacts of the original “seed.” Id. The government asserts that it does not conduct any general “browsing” of the data. Id. at 263‐65.
Section 215 requires that the Attorney General adopt “specific minimization procedures governing the retention and dissemination by the [government] of [information] received . . . in response to an order under this subchapter.” 50 U.S.C. § 1861(g)(1). The procedures that have been adopted include the requirement that the NSA store the metadata within secure networks; that the metadata not be accessed for any purpose other than what is allowed under the FISC order; that the results of queries not be disseminated outside the NSA except in accordance with the minimization and dissemination requirements of NSA procedures; and that the relevant personnel receive comprehensive training on the minimization procedures and technical controls. Joint App’x 267‐69. And as the government points out, the program is subject to oversight by the Department of Justice, the FISC, and Congress. Id. at 269. The minimization procedures require audits and reviews of the program by the
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NSA’s legal and oversight offices, the Office of the Inspector General, attorneys from the Department of Justice’s National Security Division, and the Office of the Director of National Intelligence. Id. The FISC orders that created the program require the NSA to provide periodic reports to the FISC. Id. at 141. In the event of failures of compliance, reports must be made to the FISC, and, where those failures are significant, to the Intelligence and Judiciary Committees of both houses of Congress. Id. at 269. FISA itself also imposes a system of Congressional oversight, requiring periodic reports on the program from the Attorney General to the House and Senate Intelligence and Judiciary Committees. See 50 U.S.C. §§ 1862, 1871.
Since the existence of the telephone metadata program became public, a number of developments have altered the landscape, at least to some degree, within which we analyze the program. Among the most notable are modifications to the telephone metadata program announced by President Obama in January 2014. President Barack Obama, Remarks by the President on Review of Signals Intelligence (Jan. 17, 2014), http://www.whitehouse.gov/the‐ press‐office/2014/01/17/remarks‐president‐review‐signals‐intelligence. The two immediate modifications that the President ordered, which were subsequently
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incorporated in a FISC order sought by government motion, (1) limited the number of “hops” that can be searched to two, rather than three, and (2) required that a FISC judge find that the reasonable articulable suspicion standard has been satisfied before a seed can be queried, rather than (as had previously been the case) allowing designated NSA officials to determine for themselves whether such suspicion existed. Id. Both limitations were approved by the FISC in a February 5, 2014 FISC order. In re Application of the FBI for an Order Requiring the Prod. of Tangible Things, No. BR‐14‐01 (F.I.S.C. Feb. 5, 2014), http://www.uscourts.gov/uscourts/courts/fisc/br14‐01‐order.pdf. These modifications were based in part on the recommendations of the Review Group on Intelligence and Communications Technologies established by the President. See President’s Review Grp. on Intelligence and Commc’ns Techs., Liberty and Security in a Changing World: Rep. and Recommendations of the President’s Review Grp. on Intelligence and Commc’ns Techs. (Dec. 12, 2013), https://www.whitehouse.gov/sites/default/files/docs/2013‐12‐12_rg_final_report. pdf. The Review Group also recommended that the system be modified such that a third party or the private carriers, rather than the government, collect and
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retain the bulk metadata. That recommendation, however, has so far not been adopted.
In addition to that group, the Privacy and Civil Liberties Oversight Board (“PCLOB”) published a detailed report on the program. The PCLOB is a bipartisan agency within the executive branch that was established in 2007, pursuant to a recommendation from the National Commission on Terrorist Attacks Upon the United States (the “9/11 Commission,” established after the September 11, 2001 terrorist attacks to prepare an account of the circumstances surrounding the attacks), in order to monitor the actions taken by the government to protect the nation from terrorism and to ensure that they are appropriately balanced against the need to protect privacy and civil liberties. See Implementing Recommendations of the 9/11 Comm’n Act of 2007, Pub. L. No. 110‐53, 121 Stat. 266 (2007). The PCLOB concluded that the program was inconsistent with § 215, violated the Electronic Communications Privacy Act, and implicated privacy and First Amendment concerns. See Privacy and Civil Liberties Oversight Board, Rep. on the Tel. Records Program Conducted Under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court (Jan. 23, 2014) (“PCLOB Report”),
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https://www.pclob.gov/library/215‐Report_on_the_Telephone_Records_Program. pdf.
Legislation aimed at incorporating stronger protections of individual liberties into the telephone metadata program in a variety of ways (or eliminating it altogether) was introduced in both the House and the Senate during the 113th Congress. See USA FREEDOM Act, H.R. 3361, 113th Cong. (2014); USA FREEDOM Act, S. 2685, 113th Cong. (2014). A modified version of H.R. 3361, which lost the backing of some of the bill’s original supporters because it failed to end bulk collection, nevertheless passed the House in May 2014. USA FREEDOM Act, H.R. 3361, 113th Cong. (2014). In November 2014, however, a motion to invoke cloture on the Senate’s version of the bill – relatively more robust in terms of privacy protections – failed by a vote of 58‐42, thereby preventing the bill from coming up for a vote in the Senate despite the desire of 58 senators to proceed to a vote on the measure. USA FREEDOM Act, S. 2685, 113th Cong. (2014). The current Congress is likewise considering bills aimed at modifying § 215; a bill that would place the bulk metadata collected into the hands of telecommunications providers, to be accessed by the government only with FISC authorization, has been introduced in both the House and the Senate in
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recent weeks. See USA FREEDOM Act of 2015, H.R. 2048/S. 1123, 114th Cong. (2015). On April 30, 2015, the bill passed the House Judiciary Committee. See USA FREEDOM Act of 2015, H.R. 2048, 114th Cong. (2015). A vote from the full House on the bill is expected later this month.
Finally, the program has come under scrutiny by Article III courts other than the FISC. In addition to this case, similar cases have been filed around the country challenging the government’s bulk collection of telephone metadata. See, e.g., Smith v. Obama, 24 F. Supp. 3d 1005 (D. Idaho 2014), No. 14‐35555 (9th Cir. argued Dec. 8, 2014); Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013), No. 14‐5004 (D.C. Cir. argued Nov. 4, 2014). IV. Procedural History
On June 11, 2013, the American Civil Liberties Union and American Civil Liberties Union Foundation (collectively, “ACLU”) and the New York Civil Liberties Union and New York Civil Liberties Union Foundation (collectively, “NYCLU”) – current and former Verizon customers, respectively – sued the government officials responsible for administering the telephone metadata program, challenging the program on both statutory and constitutional grounds and seeking declaratory and injunctive relief. The complaint asks the court to
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declare that the telephone metadata program exceeds the authority granted by § 215, and also violates the First and Fourth Amendments to the U.S. Constitution. It asks the court to permanently enjoin defendants from continuing the program, and to order defendants to “purge from their possession all of the call records of [p]laintiffs’ communications” collected in accordance with the program. Joint App’x 27.
On August 26, 2013, plaintiffs moved for a preliminary injunction barring defendants from collecting their call records under the program, requiring defendants to quarantine all of the call records they had already collected, and prohibiting defendants from using their records to perform queries on any phone number or other identifier associated with plaintiffs. On the same date, the government moved to dismiss the complaint.
On December 27, 2013, the district court granted the government’s motion to dismiss and denied plaintiffs’ motion for a preliminary injunction. See ACLU v. Clapper, 959 F. Supp. 2d 724 (S.D.N.Y. 2013). Plaintiffs now appeal that decision.
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DISCUSSION We review de novo a district court’s grant of a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Klein & Co. Futures, Inc. v. Bd. of Trade of City of New York, 464 F.3d 255, 259 (2d Cir. 2006); see also Lotes Co., Ltd. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir. 2014). We review a district court’s denial of a preliminary injunction for abuse of discretion, see Cent. Rabbinical Cong. of U.S. & Canada v. N.Y.C. Dep’t of Health & Mental Hygiene, 763 F.3d 183, 192 (2d Cir. 2014), which occurs when the court’s decision either “rests on an error of law . . . or a clearly erroneous factual finding, or . . . its decision – though not necessarily the product of a legal error or a clearly erroneous factual finding – cannot be located within the range of permissible decisions,” Vincenty v. Bloomberg, 476 F.3d 74, 83 (2d Cir. 2007). I. Standing The district court ruled that appellants had standing to bring this case. Clapper, 959 F. Supp. 2d at 738. The government argues that the district court’s ruling was erroneous, contending that appellants lack standing because they have not demonstrated that any of the metadata associated with them have been or will be actually reviewed by the government, and have not otherwise
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identified an injury that is sufficiently concrete or imminent to confer standing. We recognize that “‘[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal‐ court jurisdiction to actual cases or controversies.’” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013), quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (alteration in original). In order to meet that requirement, plaintiffs must, among other things, establish that they have standing to sue. Raines v. Byrd, 521 U.S. 811, 818 (1997). “Standing under Article III of the Constitution requires that an injury be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010); see also Amnesty Int’l, 133 S. Ct. at 1147 (collecting cases). The Supreme Court has “repeatedly reiterated that ‘threatened injury must be certainly impending to constitute injury in fact,’ and that ‘[a]llegations of possible future injury’ are not sufficient.” Amnesty Int’l, 133 S. Ct. at 1147, quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (emphasis in original). We remain mindful that the “‘standing inquiry has been especially rigorous when reaching the merits of [a] dispute would force us to decide whether an action taken by one of the
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other two branches of the Federal Government was unconstitutional’” and “in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs.” Id., quoting Raines, 521 U.S. at 819‐20.
Appellants in this case have, despite those substantial hurdles, established standing to sue, as the district court correctly held. Appellants here need not speculate that the government has collected, or may in the future collect, their call records. To the contrary, the government’s own orders demonstrate that appellants’ call records are indeed among those collected as part of the telephone metadata program. Nor has the government disputed that claim. It argues instead that any alleged injuries here depend on the government’s reviewing the information collected, and that appellants have not shown anything more than a “speculative prospect that their telephone numbers would ever be used as a selector to query, or be included in the results of queries of, the telephony metadata.” Appellees’ Br. 22.
But the government’s argument misapprehends what is required to establish standing in a case such as this one. Appellants challenge the telephone metadata program as a whole, alleging injury from the very collection of their
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telephone metadata. And, as the district court observed, it is not disputed that the government collected telephone metadata associated with the appellants’ telephone calls. The Fourth Amendment protects against unreasonable searches and seizures. Appellants contend that the collection of their metadata exceeds the scope of what is authorized by § 215 and constitutes a Fourth Amendment search. We think such collection is more appropriately challenged, at least from a standing perspective, as a seizure rather than as a search. Whether or not such claims prevail on the merits, appellants surely have standing to allege injury from the collection, and maintenance in a government database, of records relating to them. “[A] violation of the [Fourth] Amendment is fully accomplished at the time of an unreasonable governmental intrusion.” United States v. Verdugo‐Urquidez, 494 U.S. 259, 264 (1990) (internal quotation marks omitted). If the telephone metadata program is unlawful, appellants have suffered a concrete and particularized injury fairly traceable to the challenged program and redressable by a favorable ruling.
Amnesty International does not hold otherwise. There, the Supreme Court, reversing our decision, held that respondents had not established standing because they could not show that the government was surveilling them, or that
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such surveillance was “certainly impending.” 131 S. Ct. at 1148‐1150. Instead, the Supreme Court stated that respondents’ standing arguments were based on a “speculative chain of possibilities” that required that: respondents’ foreign contacts be targeted for surveillance; the surveillance be conducted pursuant to the statute challenged, rather than under some other authority; the FISC approve the surveillance; the government actually intercept the communications of the foreign contacts; and among those intercepted communications be those involving respondents. Id. Because respondents’ injury relied on that chain of events actually transpiring, the Court held that the alleged injury was not “fairly traceable” to the statute being challenged. Id. at 1150. As to costs incurred by respondents to avoid surveillance, the Court characterized those costs as “a product of their fear of surveillance” insufficient to confer standing. Id. at 1152.
Here, appellants’ alleged injury requires no speculation whatsoever as to how events will unfold under § 215 – appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the FISC; and the records have been collected. Amnesty International’s “speculative chain of possibilities” is, in this context, a reality.
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That case in no way suggested that such data would need to be reviewed or analyzed in order for respondents to suffer injury.
The government also takes issue with the district court’s reliance on Amidax Trading Group v. S.W.I.F.T. SCRL, 671 F.3d 140 (2d Cir. 2011). In Amidax, we held that plaintiffs had not established standing to challenge the government’s acquisition of financial records from SWIFT, a messaging service that routes financial transactions, via administrative subpoenas issued by the Office of Foreign Asset Control. Id. at 148‐49. Because there was insufficient support for the allegation that Amidax’s own records were among those handed over to the government, we held that Amidax had not alleged a plausible injury in fact. Id. That case, too, differs from the case at bar, where appellants have presented evidence that their data are being collected. To the extent Amidax speaks to the circumstances presented by this case, it supports, albeit in dictum, appellants’ position. We noted in Amidax that “[t]o establish an injury in fact – and thus, a personal stake in this litigation – [Amidax] need only establish that its information was obtained by the government.” Id. at 147 (second alteration in original). There, too, we viewed the collection of the data in question, if it had in
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fact occurred, as an injury sufficient to confer standing, without considering whether such data were likely to be reviewed.
Finally, the government admits that, when it queries its database, its computers search all of the material stored in the database in order to identify records that match the search term. In doing so, it necessarily searches appellants’ records electronically, even if such a search does not return appellants’ records for close review by a human agent. There is no question that an equivalent manual review of the records, in search of connections to a suspect person or telephone, would confer standing even on the government’s analysis. That the search is conducted by a machine might lessen the intrusion, but does not deprive appellants of standing to object to the collection and review of their data.
Appellants likewise have standing to assert a First Amendment violation. Appellants contend that their First Amendment associational rights are being violated, both directly and through a “chilling effect” on clients and donors. The Supreme Court has long recognized that an organization can assert associational privacy rights on behalf of its members, stating that “[i]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in
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advocacy may constitute . . . a restraint on freedom of association.” NAACP v. Alabama, 357 U.S. 449, 462 (1958). In NAACP, furthermore, the Supreme Court held that the organization “argue[d] . . . appropriately the rights of its members, and that its nexus with them [wa]s sufficient to permit that it act as their representative before this Court.” Id. at 458‐59. We have similarly stated that a union’s “standing to assert the First and Fourteenth Amendment rights of association and privacy of its individual members is beyond dispute.” Local 1814, Int’l Longshoremen’s Ass’n v. Waterfront Comm’n of N.Y. Harbor, 667 F.2d 267, 270 (2d Cir. 1981). When the government collects appellants’ metadata, appellants’ members’ interests in keeping their associations and contacts private are implicated, and any potential “chilling effect” is created at that point. Appellants have therefore alleged a concrete, fairly traceable, and redressable injury sufficient to confer standing to assert their First Amendment claims as well. II. Preclusion and the Administrative Procedure Act
The government next contends that appellants are impliedly precluded from bringing suit to challenge the telephone metadata program on statutory grounds. According to the government, the statutory scheme set out by § 215
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limits judicial review of § 215 orders “to the FISC and its specialized mechanism for appellate review,” Appellees’ Br. 26, and provides for challenges to those orders only by recipients of § 215 orders (that is, the communications companies), rather than the targets of such orders, thereby impliedly precluding appellants here from bringing suit in federal court. The government also argues that 18 U.S.C. § 2712 impliedly precludes the relief appellants seek, either independently or in conjunction with the larger statutory framework established by the two provisions.
A. Section 215 and Implied Preclusion The Administrative Procedure Act (“APA”) waives sovereign immunity for suits against the United States for relief other than money damages. Under the APA, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof,” and can bring suit in an “action in a court of the United States seeking relief other than money damages.” 5 U.S.C. § 702. The APA thus establishes a broad right of judicial review of administrative action. The APA does not, however, apply where “statutes preclude judicial review.” Id. § 701.
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In determining whether judicial review is precluded under a particular statute, we must “begin with the strong presumption that Congress intends judicial review of administrative action. From the beginning ‘our cases [have established] that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.’” Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986), quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967) (alterations in original). “‘[O]nly . . . a showing of clear and convincing evidence of a contrary legislative intent’” can rebut the presumption that Congress intended that an action be subject to judicial review. Bowen, 476 U.S. at 672, quoting Abbott Labs., 387 U.S. at 141. The Supreme Court has emphasized that there is a “heavy burden” on a party that attempts to overcome this presumption. Id. (internal quotation marks omitted).
That burden is, of course, not insurmountable, and “may be overcome by specific language or specific legislative history that is a reliable indicator of congressional intent.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984). Such an intent must be “fairly discernible in the statutory scheme,” id. at 351 (internal quotation marks omitted), looking to the scheme’s “structure . . . , its
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objectives, its legislative history, and the nature of the administrative action involved,” id. at 345. Importantly, “‘where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling.’” NRDC v. Johnson, 461 F.3d 164, 172 (2d Cir. 2006), quoting Block, 467 U.S. at 351. Implied preclusion of review is thus disfavored.
The government points to no language in § 215, or in FISA or the PATRIOT Act more generally, that excludes actions taken by executive or administrative officials pursuant to its terms from the presumption of judicial review established by the APA. Rather, it argues that the provision of one mechanism for judicial review, at the behest of parties other than those whose privacy may be compromised by the seizure, impliedly precludes review pursuant to the APA by parties thus aggrieved. To understand that argument, we begin by describing the provision for judicial review on which the government relies.
A recipient of a § 215 order may challenge its legality “by filing a petition with the pool” of FISC judges established by the statute. 50 U.S.C. § 1861(f)(2)(A)(i). That decision can then be appealed to the FISA Court of Review. Id. § 1861(f)(3). The statute also provides that “[a]ny production or
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nondisclosure order not explicitly modified or set aside consistent with this subsection shall remain in full effect.” Id. § 1861(f)(2)(D).
According to the government, those provisions establish a limited and detailed framework that evinces Congressional intent to limit judicial review to the method specified. Both the government and the district court point to the Supreme Court’s language in Block that “when a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded.” Block, 467 U.S. at 349.
But that is not always the case. The Supreme Court has also noted that “if the express provision of judicial review in one section of a long and complicated statute were alone enough to overcome the APA’s presumption of reviewability for all final agency action, it would not be much of a presumption at all.” Sackett v. EPA, 132 S. Ct. 1367, 1373 (2012). The question remains whether the government has demonstrated by clear and convincing or “discernible” evidence that Congress intended to preclude review in these particular circumstances.
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(1) Secrecy The government’s primary argument in support of preclusion is based on the various secrecy provisions that attach to § 215 orders. For example, § 215 states that “[n]o person shall disclose to any other person that the Federal Bureau of Investigation has sought or obtained tangible things pursuant to an order under this section” unless disclosure is necessary to comply with the order; the disclosure is made to an attorney for advice or assistance in connection with the order; or the disclosure is made to others as permitted by the FBI Director or his designee. 50 U.S.C. § 1861(d)(1). And the statute explicitly lays out various supplemental secrecy procedures accompanying the review process, including the requirements that the records of any such proceedings be “maintained under security measures established by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence,” id. § 1861(f)(4); that “[a]ll petitions . . . be filed under seal,” id. § 1861(f)(5); and that, in the case of any government submission that may contain classified information, the court review it ex parte and in camera, id. These secrecy measures, the government argues, are evidence that Congress did
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not intend that § 215 orders be reviewable in federal court upon suit by an individual whose metadata are collected.
Upon closer analysis, however, that argument fails. The government has pointed to no affirmative evidence, whether “clear and convincing” or “fairly discernible,” that suggests that Congress intended to preclude judicial review. Indeed, the government’s argument from secrecy suggests that Congress did not contemplate a situation in which targets of § 215 orders would become aware of those orders on anything resembling the scale that they now have. That revelation, of course, came to pass only because of an unprecedented leak of classified information. That Congress may not have anticipated that individuals like appellants, whose communications were targeted by § 215 orders, would become aware of the orders, and thus be in a position to seek judicial review, is not evidence that Congress affirmatively decided to revoke the right to judicial review otherwise provided by the APA in the event the orders were publicly revealed.
The government’s argument also ignores the fact that, in certain (albeit limited) instances, the statute does indeed contemplate disclosure. If a judge finds that “there is no reason to believe that disclosure may endanger the
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national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person,” he may grant a petition to modify or set aside a nondisclosure order. 50 U.S.C. § 1861(f)(2)(C)(i). Such a petition could presumably only be brought by a § 215 order recipient, because only the recipient, not the target, would know of the order before such disclosure. But this provision indicates that Congress did not expect that all § 215 orders would remain secret indefinitely and that, by providing for such secrecy, Congress did not intend to preclude targets of § 215 orders, should they happen to learn of them, from bringing suit.
(2) Statutory Scheme The government also relies heavily on Block in arguing that the statutory scheme as a whole impliedly precludes judicial review. In Block, the Supreme Court considered whether consumers of milk could obtain judicial review of milk market orders, which are issued by the Secretary of Agriculture pursuant to the Agricultural Marketing Agreement Act of 1937 (“AMAA”), codified as amended at 7 U.S.C. § 601 et seq. Those orders set the minimum prices that milk processors (also known as “handlers”) must pay to milk producers. The Court
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held that, in the context of that statute, the statute’s silence as to the ability of milk consumers to challenge milk market orders was sufficient to imply that Congress intended that they be precluded from doing so. 467 U.S. at 347. The government would have us view § 215 as a similarly complex administrative scheme that would clearly be disrupted should targets of the orders be permitted judicial review of them.
But the AMAA and the Court’s decision in Block are distinguishable from this case. First, the Court in Block, and in its decisions since Block, has made much of whether a statute has administrative review requirements that would be end‐run if the APA provided for ordinary judicial review. In Block, for example, the Court noted that, for a milk market order to become effective, the AMAA requires that: (1) the Secretary of Agriculture conduct a rulemaking proceeding before issuing a milk market order; (2) the public be notified of the proceeding and given an opportunity for comment; (3) a public hearing be held, in which (4) the evidence offered shows that the order will further the statute’s policy; and (5) certain percentages of milk handlers and producers vote in favor of the orders. See id. at 342.
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Such a scheme is a far cry from what is contemplated by § 215. Section 215 contains no administrative review requirements that would be “end run” if targets of the orders were allowed to obtain judicial review thereof. Indeed, the only express mechanism for any review at all of § 215 orders is via judicial review – albeit by the FISC, rather than a federal district court.
Unlike the AMAA, § 215 in no way contemplates a “cooperative venture” that precedes the issuance of orders. Id. at 346. In Block, the Court pointed out that the statute provided for milk handlers and producers – and not consumers – to participate in the adoption of the market orders. See id. Those parties, according to the Court, were the ones who could obtain review of the orders, not the consumers, whom Congress had excluded from the entire process. Section 215, in contrast, does not contemplate ex ante cooperation between, for example, telephone companies and the government in deciding how production orders should be crafted and whether they should be approved. To the contrary, under § 215, the government unilaterally crafts orders that may then be approved or not by the FISC. Unlike in the case of the AMAA, there is no indication that Congress, in drafting § 215, intended that the phone companies be the only party
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entitled to obtain judicial review of the orders by providing for them to otherwise participate in the order‐issuing process.
Block is further distinguishable because the Court there emphasized the fact that “[h]andlers ha[d] interests similar to those of consumers” and could “therefore be expected to challenge unlawful agency action.” Id. at 352. Here, in contrast, the interests and incentives of the recipients of § 215 orders are quite different from those of the orders’ targets. As appellants point out, telecommunications companies have little incentive to challenge § 215 orders – first, because they are unlikely to want to antagonize the government, and second, because the statute shields them from any liability arising from their compliance with a § 215 order. See 50 U.S.C. § 1861(e). Any interests that they do have are distinct from those of their customers. The telephone service providers’ primary interest would be the expense or burden of complying with the orders; only the customers have a direct interest in the privacy of information revealed in their telephone records.
Indeed, courts since Block have interpreted this factor – whether Congress has extended a cause of action to a party whose interests are aligned with those of a party seeking to sue – as critical to the heavily fact‐bound Block decision.
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The D.C. Circuit has noted that “some discussion in Block . . . sweep[s] broadly” but has concluded that, for example, the AMAA does not preclude milk producers (as opposed to consumers) from obtaining judicial review of market orders, in part because “[u]nlike the consumers whose interests were coextensive with those of handlers in Block, the producers are the only party with an interest in ensuring that the price paid them is not reduced by too large a[n amount] paid to handlers.” Ark. Dairy Coop. Ass’n v. U.S. Dep’t of Agric., 573 F.3d 815, 823 (D.C. Cir. 2009) (internal citation omitted). In other words, whether a party with aligned interests can obtain judicial review is an important consideration in interpreting and applying Block.
(3) Legislative History Finally, the legislative history of the provision for challenging § 215 orders further supports appellants’ argument that Congress did not intend to preclude targets of the orders from bringing suit. Appellants point out that the amendment to § 215 that provided for judicial review of § 215 orders in the FISC was passed in response to Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004), vacated in part sub nom. Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006). At the same time it added the judicial review provision in § 215, Congress passed a
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provision for judicial review in the context of National Security Letters (“NSLs”) – a form of administrative subpoenas used to gather communications and records in national security matters. That subsection was added to address the court’s concerns in Doe that 18 U.S.C. § 2709, pursuant to which NSLs are issued, “effectively bar[red] or substantially deter[red] any judicial challenge to the propriety of an NSL request.” Doe, 334 F. Supp. 2d at 475. Congress’s primary purpose in adopting both of these provisions was apparently to clarify that judicial review was available to recipients of NSLs and § 215 orders – not to preclude review at the behest of the targets of orders. In fact, in Doe, the government argued that the NSL statute already implicitly provided for judicial review. See id. at 492‐93. The amendment, therefore, only “clarif[ied] that a FISA 215 order may be challenged and that a recipient of a 215 order may consult with the lawyer and the appropriate people necessary to respond to the order,” H.R. Rep. No. 109‐174, pt. 1, at 106 (statement of Chairman Sensenbrenner) – both concerns raised by the district court in Doe with respect to NSLs. The amendment was a clarification of the judicial review provision that already implicitly existed; in thus clarifying, it did not affirmatively take away a right to judicial review from another category of individuals not mentioned in the statute.
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The government argues that Congress “specifically considered, and rejected, an amendment that would have allowed Section 215 orders to be challenged not only in the FISC, but also in district court.” Appellees’ Br. 29. But that is an oversimplification of the sequence of events relating to an amendment proposed by Representative Nadler. First, the proposed amendment encompassed more than the issue of judicial review. The amendment primarily proposed a more rigorous standard for obtaining orders under § 215 than existed at the time, and the bulk of the debate on the amendment concerned what degree of suspicion should be required for issuance of a § 215 order. See H.R. Rep. No. 109‐174, pt. 1, at 128‐32, 135 (2005). Second, the amendment proposed judicial review in a district court by the recipients of § 215 orders – a category of persons already granted an avenue of review under § 215, through the FISC process. Id. at 128, 134. It did not address – again, presumably because Congress did not have reason to consider the question at that point – whether a person whose records were seized as a result of such an order would be able, upon learning of the order, to challenge it in district court. Indeed, Representative Nadler specifically noted that his amendment did not grant judicial review at the behest of the “target” of a § 215 order because such a target “doesn’t know about” the
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order. See id. at 128 (statement of Rep. Nadler) (“It doesn’t give the target of the order the ability to go to court. He doesn’t know about it.”); id. at 134 (statement of Rep. Nadler) (“[T]he fact is that . . . the target of the investigation never hears about this.”).
As Justice Scalia has reminded us, moreover, we should exercise caution in relying on this type of legislative history in attempting to discern Congress’s intent, because it is so often “impossible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of ‘history’ that bears the unanimous endorsement of the majority in each House: the text of the enrolled bill that became law.” Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 302 (2010) (Scalia, J., concurring) (emphasis in original). Congress’s rejection of the Nadler amendment cannot reliably be interpreted as a specific rejection of the opportunity for a § 215 target to obtain judicial review, under the APA or otherwise.
Finally, the government argues that Congress must have intended to preclude judicial review of § 215 orders, because if any customer of a company that receives a § 215 order may challenge such an order, lawsuits could be filed
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by a vast number of potential plaintiffs, thus “severely disrupt[ing] . . . the sensitive field of intelligence gathering for counter‐terrorism efforts.” Appellees’ Br. 30 (internal quotation marks omitted).
That argument, however, depends on the government’s argument on the merits that bulk metadata collection was contemplated by Congress and authorized by § 215. The risk of massive numbers of lawsuits challenging the same orders, and thus risking inconsistent outcomes and confusion about the legality of the program, occurs only in connection with the existence of orders authorizing the collection of data from millions of people. Orders targeting limited numbers of persons under investigation could be challenged only by the individuals targeted – who, it was expected, would never learn of the orders in the first place. It is only in connection with the government’s expansive use of § 215 (which, as will be seen below, was not contemplated by Congress) that these risks would create concern.
In any event, restricting judicial review of the legality of § 215 orders under the statute itself would do little to eliminate the specter of duplicative lawsuits challenging orders like the one at issue here. The government does not contend that those whose records are collected pursuant to § 215, assuming they have
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established standing, are somehow precluded from bringing constitutional challenges to those orders. The government would thus attribute to Congress a preclusion of statutory challenges that would not eliminate the supposed dangers of multiplicative lawsuits, while channeling those lawsuits toward constitutional issues.
Such an outcome would be anomalous. It would fly in the face of the doctrine of constitutional avoidance, which “allows courts to avoid the decision of constitutional questions” by providing “a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts.” Clark v. Martinez, 543 U.S. 371, 381 (2005) (emphasis in original). In contrast, the approach proffered by the government would preclude lawsuits challenging the legality of § 215 on statutory grounds, while leaving open the path to review of § 215 under the Constitution. While constitutional avoidance is a judicial doctrine, the principle should have considerable appeal to Congress: it would seem odd that Congress would preclude challenges to executive actions that allegedly violate Congress’s own commands, and thereby channel the complaints of those aggrieved by such actions into constitutional
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challenges that threaten Congress’s own authority. There may be arguments in favor of such an unlikely scheme, but it cannot be said that any such reasons are so patent and indisputable that Congress can be assumed, in the face of the strong presumption in favor of APA review, to have adopted them without having said a word about them.
B. Section 2712 and Implied Preclusion The other potentially relevant exception to the APA’s waiver of sovereign immunity looks to whether “any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” 5 U.S.C. § 702 (emphasis added). The government urges that 18 U.S.C. § 2712, passed in the same statute that contained § 215, is just such a statute, granting as it does a private right of action for money damages against the United States for violations of the Wiretap Act, the Stored Communications Act, and three particular FISA provisions that concern electronic surveillance, physical searches, and pen registers or trap and trace devices (but not § 215). See 18 U.S.C. § 2712(a); see also 50 U.S.C. §§ 1806(a), 1825(a), 1845(a). Section 2712 withdrew the general right to sue the United States under the Wiretap Act and the Stored Communications Act at the same time it added a right of action for money damages. Importantly, it also stated that
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“[a]ny action against the United States under this subsection shall be the exclusive remedy against the United States for any claims within the purview of this section.” 18 U.S.C. § 2712(d). According to the government, such provisions demonstrate that, where Congress did intend to allow a private right of action for violations of FISA, it did so expressly.
That the provision extending a right of action makes no mention of § 215, however, supports appellants’ argument, not the government’s. To be sure, “[w]hen Congress has dealt in particularity with a claim and [has] intended a specified remedy . . . to be exclusive, that is the end of the matter; the APA does not undo the judgment.” Match‐E‐Be‐Nash‐She‐Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2205 (2012) (second alteration in original) (internal quotation marks omitted). But § 2712 does not deal “in particularity” with § 215. Instead, the government would have us conclude “that in authorizing one person to bring one kind of suit seeking one form of relief, Congress barred another person from bringing another kind of suit seeking another form of relief.” Id. at 2209. Section 2712 makes no mention whatsoever of claims under § 215, either to permit them or to preclude them, and, as the Supreme Court stated in Patchak, “[w]e have never held, and see no cause to
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hold here, that some general similarity of subject matter can alone trigger a remedial statute’s preclusive effect.” Id. The “exclusive remedy” provision applies only to claims within the purview of the remedial section, which does not cover all of FISA but rather specifies those FISA provisions to which it applies. Had Congress intended § 2712’s exclusive right of action (and its preclusion of other remedies) to extend to § 215, it is fair to assume that it would have also enumerated that section – particularly considering the fact that both provisions were passed in the same statute.
Section 2712, moreover, explicitly withdraws the right to challenge the specific government actions taken under specific authorization, in connection with extending an explicit cause of action for monetary damages in connection with such actions. First, § 2712 shows that the Congress that enacted the PATRIOT Act understood very well how to withdraw the right to sue under the APA, and to create an exclusive remedy, when it wished to do so. Second, § 2712 manifestly does not create a cause of action for damages for violations of § 215, as it does with respect to those statutes of which it does preclude review under the APA.
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Section 2712, therefore, does not preclude appellants’ suit here. Nor do the two statutes, when viewed in combination, evince an intent of Congress to preclude suits by targets of § 215 orders.
C. Summary In short, the government relies on bits and shards of inapplicable statutes, inconclusive legislative history, and inferences from silence in an effort to find an implied revocation of the APA’s authorization of challenges to government actions. That is not enough to overcome the strong presumption of the general command of the APA against such implied preclusion. Congress, of course, has the ability to limit the remedies available under the APA; it has only to say so. But it has said no such thing here. We should be cautious in inferring legislative action from legislative inaction, or inferring a Congressional command from Congressional silence. At most, the evidence cited by the government suggests that Congress assumed, in light of the expectation of secrecy, that persons whose information was targeted by a § 215 order would rarely even know of such orders, and therefore that judicial review at the behest of such persons was a non‐ issue. But such an assumption is a far cry from an unexpressed intention to
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withdraw rights granted in a generally applicable, explicit statute such as the APA.
Accordingly, we disagree with the district court insofar as it held that appellants here are precluded from bringing suit against the government, and hold that appellants have a right of action under the APA. We therefore proceed to the merits of the case. III. Statutory Authorization
Although appellants vigorously argue that the telephone metadata program violates their rights under the Fourth Amendment to the Constitution, and therefore cannot be authorized by either the Executive or the Legislative Branch of government, or by both acting together, their initial argument is that the program simply has not been authorized by the legislation on which the government relies for the issuance of the orders to service providers to collect and turn over the metadata at issue. We naturally turn first to that argument.
Section 215 clearly sweeps broadly in an effort to provide the government with essential tools to investigate and forestall acts of terrorism. The statute permits the government to apply for “an order requiring the production of any tangible things . . . for an investigation . . . to protect against international
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terrorism or clandestine intelligence activities.” 50 U.S.C. § 1861(a)(1) (emphasis added). A § 215 order may require the production of anything that “can be obtained with a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation” or any other court order. Id. § 1861(c)(2)(D).
While the types of “tangible things” subject to such an order would appear essentially unlimited, such “things” may only be produced upon a specified factual showing by the government. To obtain a § 215 order, the government must provide the FISC with “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted [under guidelines approved by the Attorney General].” Id. § 1861(b)(2)(A); see id. § 1861(a)(2) (requiring that investigations making use of such orders be conducted under guidelines approved by the Attorney General). The basic requirements for metadata collection under § 215, then, are simply that the records be relevant to an authorized investigation (other than a threat assessment).
For all the complexity of the statutory framework, the parties’ respective positions are relatively simple and straightforward. The government emphasizes that “relevance” is an extremely generous standard, particularly in the context of
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the grand jury investigations to which the statute analogizes orders under § 215. Appellants argue that relevance is not an unlimited concept, and that the government’s own use (or non‐use) of the records obtained demonstrates that most of the records sought are not relevant to any particular investigation; the government does not seek the records, as is usual in a grand jury investigation, so as to review them in search of evidence bearing on a particular subject, but rather seeks the records to create a vast data bank, to be kept in reserve and queried if and when some particular set of records might be relevant to a particular investigation.
Echoing the district court’s statement that “‘[r]elevance’ has a broad legal meaning,” 959 F. Supp. 2d at 746, the government argues that the telephone metadata program comfortably meets the requisite standard. The government likens the relevance standard intended by Congress to the standard of relevance for grand jury and administrative subpoenas, and, to some extent, for civil discovery.
Both the language of the statute and the legislative history support the grand jury analogy. During the 2006 reauthorization debate, Senator Kyl recalled that, in passing the PATRIOT Act shortly after September 11, Congress had
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realized that “it was time to apply to terrorism many of the same kinds of techniques in law enforcement authorities that we already deemed very useful in investigating other kinds of crimes. Our idea was, if it is good enough to investigate money laundering or drug dealing, for example, we sure ought to use those same kinds of techniques to fight terrorists.” 152 Cong. Rec. S1607 (daily ed. Mar. 2, 2006) (statement of Sen. Kyl). He also remarked that “[r]elevance is a simple and well established standard of law. Indeed, it is the standard for obtaining every other kind of subpoena, including administrative subpoenas, grand jury subpoenas, and civil discovery orders.” Id. at S1606. And it is well established that “where Congress borrows terms of art . . . , it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.” Morissette v. United States, 342 U.S. 246, 250 (1952).
So much, indeed, seems to us unexceptionable. In adopting § 215, Congress intended to give the government, on the approval of the FISC, broad‐ ranging investigative powers analogous to those traditionally used in connection with grand jury investigations into possible criminal behavior.
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The government then points out that, under the accepted standard of relevance in the context of grand jury subpoenas, “courts have authorized discovery of large volumes of information where the requester seeks to identify within that volume smaller amounts of information that could directly bear on the matter.” Appellees’ Br. 31. The government asks us to conclude that it is “eminently reasonable to believe that Section 215 bulk telephony metadata is relevant to counterterrorism investigations.” Id. at 32. Appellants, however, dispute that metadata from every phone call with a party in the United States, over a period of years and years, can be considered “relevant to an authorized investigation,” by any definition of the term.
The very terms in which this litigation has been conducted by both sides suggest that the matter is not as routine as the government’s argument suggests. Normally, the question of whether records demanded by a subpoena or other court order are “relevant” to a proceeding is raised in the context of a motion to quash a subpoena. The grand jury undertakes to investigate a particular subject matter to determine whether there is probable cause to believe crimes have been committed, and seeks by subpoena records that might contain evidence that will
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help in making that determination.4 Given the wide investigative scope of a grand jury, the standard is easy to meet, but the determination of relevance is constrained by the subject of the investigation. In resolving a motion to quash, a court compares the records demanded by the particular subpoena with the subject matter of the investigation, however broadly defined.
Here, however, the parties have not undertaken to debate whether the records required by the orders in question are relevant to any particular inquiry. The records demanded are all‐encompassing; the government does not even suggest that all of the records sought, or even necessarily any of them, are relevant to any specific defined inquiry. Rather, the parties ask the Court to decide whether § 215 authorizes the “creation of a historical repository of information that bulk aggregation of the metadata allows,” Appellees’ Br. 32, because bulk collection to create such a repository is “necessary to the application
4 Although subpoenas may be used in aid of other court proceedings, we take the grand jury as our example because the powers of the grand jury are particularly wide‐ranging, and the standard of relevance or materiality of information sought is much more relaxed than, for example, in a trial, where to be relevant evidence must tend to make a fact “of consequence in determining the action,” Fed. R. Evid. 401(b), “more or less probable than it would be without the evidence,” id. 401(a).
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of certain analytic techniques,” Appellants’ Br. 23. That is not the language in
which grand jury subpoenas are traditionally discussed.
Thus, the government takes the position that the metadata collected – a
vast amount of which does not contain directly “relevant” information, as the
government concedes – are nevertheless “relevant” because they may allow the
NSA, at some unknown time in the future, utilizing its ability to sift through the
trove of irrelevant data it has collected up to that point, to identify information that is relevant.5 We agree with appellants that such an expansive concept of
“relevance” is unprecedented and unwarranted.
The statutes to which the government points have never been interpreted
to authorize anything approaching the breadth of the sweeping surveillance at issue here.6 The government admitted below that the case law in analogous
5 Section 215 lists three factors that would render a tangible thing sought “presumptively relevant” to an authorized investigation, see 50 U.S.C. § 1861(b)(2)(A), but the records of ordinary telephone company customers’ phone calls do not fall within any of those descriptions. 6 A recently disclosed, now discontinued program under which the Drug Enforcement Administration utilized administrative subpoenas obtained pursuant to 21 U.S.C. § 876 to collect and maintain a telephone metadata database may have demanded an interpretation approaching the breadth of the government’s interpretation of similar language here. See ECF No. 159 (Appellants’ Fed. R. App. P. 28(j) letter); ECF No. 161 (Appellees’ Fed. R. App. P.
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contexts “d[id] not involve data acquisition on the scale of the telephony metadata collection.” ACLU v. Clapper, No. 13 Civ. 3994 (S.D.N.Y. Aug. 26, 2013), ECF No. 33 (Mem. of Law of Defs. in Supp. of Mot. to Dismiss) at 24. That concession is well taken. As noted above, if the orders challenged by appellants do not require the collection of metadata regarding every telephone call made or received in the United States (a point asserted by appellants and at least nominally contested by the government), they appear to come very close to doing so. The sheer volume of information sought is staggering; while search warrants and subpoenas for business records may encompass large volumes of paper documents or electronic data, the most expansive of such evidentiary demands are dwarfed by the volume of records obtained pursuant to the orders in question here.
Moreover, the distinction is not merely one of quantity – however vast the quantitative difference – but also of quality. Search warrants and document subpoenas typically seek the records of a particular individual or corporation
28(j) letter). That program, which, according to both parties, has been discontinued, is not being challenged here, and we therefore need not opine as to whether the language of the statute pursuant to which the metadata were collected authorized that program.
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under investigation, and cover particular time periods when the events under investigation occurred. The orders at issue here contain no such limits. The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future. The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program.
Nevertheless, the government emphasizes the permissive standards applied to subpoenas, noting that, at least in the context of grand jury subpoenas, motions to quash on relevancy grounds are “denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.” United States v. R. Enters., Inc., 498 U.S. 292, 301
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(1991). That is because such subpoenas “are customarily employed to gather information and make it available to the investigative team of agents and prosecutors so that it can be digested and sifted for pertinent matter” and are therefore “often drawn broadly, sweeping up both documents that may prove decisive and documents that turn out not to be.” United States v. Triumph Capital Grp., 544 F.3d 149, 168 (2d Cir. 2008).
In that vein, the government points to cases in which courts have upheld subpoenas for broad categories of information and for “large‐scale collection[] of information.” Appellees’ Br. 33 (internal quotation marks omitted). For example, in In re Grand Jury Proceedings: Subpoenas Duces Tecum, 827 F.2d 301 (8th Cir. 1987), the Eighth Circuit denied Western Union’s motion to quash a subpoena that requested production by Western Union’s primary wire service agent in Kansas City of all money order applications for amounts over $1,000 over a more than two‐year period, and of a report summarizing all wire transactions it conducted over an approximate one‐year period. Despite Western Union’s argument that the subpoena would sweep in “records involving hundreds of innocent people,” the court stated that grand juries are not necessarily prohibited from engaging in “dragnet operation[s].” Id. at 305 (internal quotation marks
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omitted). In In re Subpoena Duces Tecum, 228 F.3d 341 (4th Cir. 2000), the Fourth Circuit also denied a motion to quash a subpoena issued to a doctor requiring production of, inter alia, all patient records and documentation concerning patients whose services were billed to Medicare, Medicaid, and a number of insurance companies, including the patients’ complete medical files, their billing records, office appointment books, sign‐in sheets, and telephone messages, over a period of at least seven years. That court held that the subpoena did not sweep too broadly, despite the high volume of documents it demanded, in part because of the scope of the fraud being investigated and the size of the doctor’s practice. Id. at 350‐51; see also Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 209 (1946) (“[R]elevancy and adequacy or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry.”).
But broad as those subpoenas were, the cases cited by the government only highlight the difference between the investigative demands at issue in those cases and the ones at issue here. Both of those examples, and all examples of which we are aware, are bounded either by the facts of the investigation or by a finite time limitation. The telephone metadata program requires that the phone companies
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turn over records on an “ongoing daily basis” – with no foreseeable end point, no
requirement of relevance to any particular set of facts, and no limitations as to
subject matter or individuals covered.7 Even in the Eighth Circuit case that the
government cites, moreover, although it upheld the subpoena at issue, the Eighth
Circuit suggested that the district court “consider the extent to which the
government would be able to identify in advance . . . patterns or characteristics
that would raise suspicion . . . designed to focus on illegal activity without taking
in an unnecessary amount of irrelevant material.” In re Grand Jury Proceedings:
Subpoenas Duces Tecum, 827 F.2d at 305‐06. Courts have typically looked to
constrain even grand jury subpoenas to a standard of reasonableness related to a
defined investigative scope; we have found excessively broad a subpoena
requiring production of all of an accountant’s files within a mere three filing
7 Drawing an analogy again to the context of administrative subpoenas, we note too that courts are “more reluctant to enforce subpoenas when agencies have sought records of third parties who were not targets of the agency’s investigation.” In re McVane, 44 F.3d 1127, 1137 (2d Cir. 1995). The overwhelming bulk of the metadata collected by the telephone metadata program, as the government itself concedes, concerns “third parties” in that sense of the word – individuals who are not targets of an investigation or suspected of engaging in any crime whatsoever, and who are not even suspected of having any contacts with any such targets or suspects. Their records are sought solely to build a repository for the future application of the investigative techniques upon which the program relies.
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cabinets, “without any attempt to define classes of potentially relevant documents or any limitations as to subject matter or time period,” because it swept in papers that there was no reason to believe were relevant. In re Horowitz, 482 F.2d 72, 79 (2d Cir. 1973). We therefore limited the subpoena’s time period absent the government’s making a minimal showing of relevance. Id. at 79‐80.
To the extent that § 215 was intended to give the government, as Senator Kyl proposed, the “same kinds of techniques to fight terrorists” that it has available to fight ordinary crimes such as “money laundering or drug dealing,” 152 Cong. Rec. S1607 (daily ed. Mar. 2, 2006) (statement of Sen. Kyl), the analogy is not helpful to the government’s position here. The techniques traditionally used to combat such ordinary crimes have not included the collection, via grand jury subpoena, of a vast trove of records of metadata concerning the financial transactions or telephone calls of ordinary Americans to be held in reserve in a data bank, to be searched if and when at some hypothetical future time the records might become relevant to a criminal investigation.
The government’s emphasis on the potential breadth of the term “relevant,” moreover, ignores other portions of the text of § 215. “Relevance”
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does not exist in the abstract; something is “relevant” or not in relation to a particular subject. Thus, an item relevant to a grand jury investigation may not be relevant at trial. In keeping with this usage, § 215 does not permit an investigative demand for any information relevant to fighting the war on terror, or anything relevant to whatever the government might want to know. It permits demands for documents “relevant to an authorized investigation.” The government has not attempted to identify to what particular “authorized investigation” the bulk metadata of virtually all Americans’ phone calls are relevant. Throughout its briefing, the government refers to the records collected under the telephone metadata program as relevant to “counterterrorism investigations,” without identifying any specific investigations to which such bulk collection is relevant. See, e.g., Appellees’ Br. 32, 33, 34.8 The FISC orders, too, refer only to “authorized investigations (other than threat assessments) being
8 While the government purports to have provided “examples” of “specific counter‐terrorism investigations,” see Appellees’ Br. 33, citing Joint App’x 254‐55, those examples serve only as instances in which the metadata already collected in bulk were able to be queried and resulted in identification of a previously unknown contact of known terrorists. The government does not contend that most of the metadata already collected were relevant to any of those particular investigations, let alone that it was able to so demonstrate prior to the collection of those metadata.
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conducted by the FBI . . . to protect against international terrorism,” see, e.g., 2006 Primary Order at 2; Joint App’x 127, 317, merely echoing the language of the statute. The PCLOB report explains that the government’s practice is to list in § 215 applications multiple terrorist organizations, and to declare that the records being sought are relevant to the investigations of all of those groups. PCLOB Report 59. As the report puts it, that practice is “little different, in practical terms, from simply declaring that they are relevant to counterterrorism in general. . . . At its core, the approach boils down to the proposition that essentially all telephone records are relevant to essentially all international terrorism investigations.” Id. at 59‐60. Put another way, the government effectively argues that there is only one enormous “anti‐terrorism” investigation, and that any records that might ever be of use in developing any aspect of that investigation are relevant to the overall counterterrorism effort.
The government’s approach essentially reads the “authorized investigation” language out of the statute. Indeed, the government’s information‐gathering under the telephone metadata program is inconsistent with the very concept of an “investigation.” To “investigate” something, according to the Oxford English Dictionary, is “[t]o search or inquire into; to
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examine (a matter) systematically or in detail; to make an inquiry or examination into.”9 8 Oxford English Dictionary 47 (2d ed. 2001). Section 215’s language thus contemplates the specificity of a particular investigation – not the general counterterrorism intelligence efforts of the United States government. But the records in question here are not sought, at least in the first instance, because the government plans to examine them in connection with a “systematic examination” of anything at all; the records are simply stored and kept in reserve until such time as some particular investigation, in the sense in which that word is traditionally used in connection with legislative, administrative, or criminal inquiries, is undertaken. Only at that point are any of the stored records examined. The records sought are not even asserted to be relevant to any on‐ going “systematic examination” of any particular suspect, incident, or group; they are relevant, in the government’s view, because there might at some future point be a need or desire to search them in connection with a hypothetical future inquiry.
9 The noun form “investigation” is similarly defined as “[t]he action of investigating; the making of a search or inquiry; systematic examination; careful and minute research.” 8 Oxford English Dictionary 47 (2d ed. 2001).
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The government’s approach also reads out of the statute another important textual limitation on its power under § 215. Section 215 permits an order to produce records to issue when the government shows that the records are “relevant to an authorized investigation (other than a threat assessment).” 50 U.S.C. § 1861(b)(2)(A) (emphasis added). The legislative history tells us little or nothing about the meaning of “threat assessment.” The Attorney General’s Guidelines for Domestic FBI Operations, however, tell us somewhat more. The Guidelines divide the category of “investigations and intelligence gathering” into three subclasses: assessments, predicated investigations (both preliminary and full), and enterprise investigations. See Attorney General’s Guidelines for Domestic FBI Operations 16‐18 (2008), https://www.ignet.gov/sites/default/files/files/invprg1211appg1.pdf. Assessments are distinguished from investigations in that they may be initiated without any factual predication. Id. at 17. The Guidelines cite the objective of preventing the commission of terrorist acts against the nation as an example of a proper assessment objective, stating that the FBI “must proactively draw on available sources of information to identify terrorist threats and activities.” Id. The methods used in assessments are “generally those of relatively low
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intrusiveness, such as obtaining publicly available information, checking government records, and requesting information from members of the public.” Id. at 17‐18. Because of that low level of intrusiveness, the Guidelines do not require supervisory approval for assessments, although FBI policy may require it in particular cases, depending on the assessment’s purpose and the methods being used. Id. at 18.
The FBI Domestic Investigations and Operations Guide elaborates on this scheme. It too provides that threat assessments “do not require a particular factual predication but do require an authorized purpose and clearly defined objective(s). Assessments may be carried out to detect, obtain information about, or prevent or protect against Federal crimes or threats to the national security or to collect foreign intelligence.” FBI Domestic Investigations and Operations Guide § 5.1 (2011), http://vault.fbi.gov/FBI%20Domestic%20Investigations%20and%20Operations%2 0Guide%20%28DIOG%29/fbi‐domestic‐investigations‐and‐operations‐guide‐diog ‐2011‐version/fbi‐domestic‐investigations‐and‐operations‐guide‐diog‐october‐15‐ 2011‐part‐01‐of‐03/view. Although no specific factual predicate is required, the
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Guide makes clear that assessments cannot be based on “arbitrary or groundless
speculation.” Id. It adds:
Although difficult to define, “no particular factual predication” is less than “information or allegation” as required for the initiation of a preliminary investigation (PI). For example, an Assessment may be conducted when: (i) there is reason to collect information or facts to determine whether there is a criminal or national security threat; and (ii) there is a rational and articulable relationship between the stated authorized purpose of the Assessment on the one hand and the information sought and the proposed means to obtain that information on the other.
Id.
In limiting the use of § 215 to “investigations” rather than “threat
assessments,” then, Congress clearly meant to prevent § 215 orders from being
issued where the FBI, without any particular, defined information that would
permit the initiation of even a preliminary investigation, sought to conduct an
inquiry in order to identify a potential threat in advance. The telephone
metadata program, however, and the orders sought in furtherance of it, are even
more remote from a concrete investigation than the threat assessments that –
however important they undoubtedly are in maintaining an alertness to possible
threats to national security – Congress found not to warrant the use of § 215
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orders. After all, when conducting a threat assessment, FBI agents must have
both a reason to conduct the inquiry and an articulable connection between the
particular inquiry being made and the information being sought. The telephone
metadata program, by contrast, seeks to compile data in advance of the need to
conduct any inquiry (or even to examine the data), and is based on no evidence
of any current connection between the data being sought and any existing
inquiry.
We agree with the PCLOB, which concluded that the government’s
rationale for the “relevance” of the bulk collection of telephone metadata
“undermines” the prohibition on using § 215 orders for threat assessments:
[Section 215] provides that records cannot be obtained for a “threat assessment,” meaning those FBI investigatory activities that “do not require a particular factual predicate.” By excluding threat assessments from the types of investigations that can justify an order, Congress directed that Section 215 not be used to facilitate the broad and comparatively untethered investigatory probing that is characteristic of such assessments. But by collecting the nation’s calling records en masse, under an expansive theory of their relevance to multiple investigations, the NSA’s program undercuts one of the functions of the “threat assessment” exclusion: ensuring that records are not acquired by the government without some reason to suspect a connection between those records and a specific, predicated terrorism investigation. While the rules
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governing the program limit the use of telephone records to searches that are prompted by a specific investigation, the relevance requirement in Section 215 restricts the acquisition of records by the government.
PCLOB Report 60 (emphases in original) (footnote omitted).10
The interpretation urged by the government would require a drastic
expansion of the term “relevance,” not only with respect to § 215, but also as that
term is construed for purposes of subpoenas, and of a number of national
security‐related statutes, to sweep further than those statutes have ever been
thought to reach. For example, the same language is used in
18 U.S.C. § 2709(b)(1) and 20 U.S.C. § 1232g(j)(1)(A), which authorize,
respectively, the compelled production of telephone toll‐billing and educational
records relevant to authorized investigations related to terrorism. There is no
10 The government also argues that, aside from their relevance to the subject matter of counterterrorism, the telephone metadata records are relevant to authorized investigations in that they are necessary for the government to apply certain investigative techniques – here, searching based on “selectors” through the government’s metadata repository. That argument proves too much. If information can be deemed relevant solely because of its necessity to a particular process that the government has chosen to employ, regardless of its subject matter, then so long as “the government develops an effective means of searching through everything in order to find something, . . . everything becomes relevant to its investigations” – and the government’s “technological capacity to ingest information and sift through it efficiently” would be the only limit to what is relevant. PCLOB Report 62 (emphases in original).
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evidence that Congress intended for those statutes to authorize the bulk collection of every American’s toll‐billing or educational records and to aggregate them into a database — yet it used nearly identical language in drafting them to that used in § 215. The interpretation that the government asks us to adopt defies any limiting principle. The same rationale that it proffers for the “relevance” of telephone metadata cannot be cabined to such data, and applies equally well to other sets of records. If the government is correct, it could use § 215 to collect and store in bulk any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records, and electronic communications (including e‐mail and social media information) relating to all Americans.
Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans. Perhaps such a contraction is required by national security needs in the face of the dangers of contemporary domestic and international terrorism. But we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language. There is no evidence of such a debate in the legislative history of § 215, and the
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language of the statute, on its face, is not naturally read as permitting investigative agencies, on the approval of the FISC, to do any more than obtain the sorts of information routinely acquired in the course of criminal investigations of “money laundering [and] drug dealing.”
We conclude that to allow the government to collect phone records only because they may become relevant to a possible authorized investigation in the future fails even the permissive “relevance” test. Just as “the grand jury’s subpoena power is not unlimited,” United States v. Calandra, 414 U.S. 338, 346 (1974), § 215’s power cannot be interpreted in a way that defies any meaningful limit. Put another way, we agree with appellants that the government’s argument is “irreconcilable with the statute’s plain text.” Appellants’ Br. 26. Such a monumental shift in our approach to combating terrorism requires a clearer signal from Congress than a recycling of oft‐used language long held in similar contexts to mean something far narrower. “Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not . . . hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns., 531 U.S. 457, 468 (2001). The language of § 215 is decidedly too ordinary for what the government would have us believe is such an
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extraordinary departure from any accepted understanding of the term “relevant to an authorized investigation.”
Finally, as it did with respect to the question of judicial review, the government again resorts to the claim that if Congress did not explicitly adopt the rule for which it argues, it did so implicitly. Here, the government argues that Congress has ratified the FISC’s interpretation of § 215, and thus the telephone metadata program, by reauthorizing § 215 in 2010 and 2011. We reject that argument.
First, the theory of congressional ratification of judicial interpretations of a statute by reenactment cannot overcome the plain meaning of a statute. “Where the law is plain, subsequent reenactment does not constitute an adoption of a previous administrative construction.” Demarest v. Manspeaker, 498 U.S. 184, 603 (1991).
Second, although “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re‐ enacts a statute without change,” Lorillard v. Pons, 434 U.S. 575, 580 (1978), there are limits to that presumption — particularly where, as here, knowledge of the program was intentionally kept to a minimum, both within Congress and among
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the public. We have said that, at least in the case of an administrative interpretation of a statute, for the doctrine of legislative ratification to apply, we must first “ascertain whether Congress has spoken clearly enough to constitute acceptance and approval of an administrative interpretation. Mere reenactment is insufficient.” Isaacs v. Bowen, 865 F.2d 468, 473 (2d Cir. 1989). In Atkins v. Parker, the Supreme Court applied the doctrine of legislative ratification where “Congress was . . . well aware of, and legislated on the basis of, . . . contemporaneous administrative practice,” concluding that it therefore “must be presumed to have intended to maintain that practice absent some clear indication to the contrary.” 472 U.S. 115, 140 (1985). In contrast, in a situation in which “there [wa]s nothing to indicate that [the interpretation of a regulation] was ever called to the attention of Congress,” and the statute’s reenactment “was not accompanied by any congressional discussion which throws light on its intended scope,” the Court has “consider[ed] the . . . re‐enactment to be without significance.” United States v. Calamaro, 354 U.S. 351, 359 (1957); see also Comm’r v. Glenshaw Glass Co., 348 U.S. 426, 431 (1955) (“Re‐enactment [of a statute] – particularly without the slightest affirmative indication that Congress ever had [a particular] decision before it – is an unreliable indicium at best.”).
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Third, as the above precedents suggest, the public nature of an interpretation plays an important role in applying the doctrine of legislative ratification. The Supreme Court has stated that “[w]here an agency’s statutory construction has been fully brought to the attention of the public and the Congress, and the latter has not sought to alter that interpretation although it has amended the statute in other respects, then presumably the legislative intent has been correctly discerned.” North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 535 (1982) (internal quotation marks omitted); see also United States v. Chestman, 947 F.2d 551, 560 (2d Cir. 1991). Congressional inaction is already a tenuous basis upon which to infer much at all, even where a court’s or agency’s interpretation is fully accessible to the public and to all members of Congress, who can discuss and debate the matter among themselves and with their constituents. But here, far from the ordinarily publicly accessible judicial or administrative opinions that the presumption contemplates, no FISC opinions authorizing the program were made public prior to 2013 — well after the two occasions of reauthorization upon which the government relies, and despite the fact that the FISC first authorized the program in 2006.
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Congress cannot reasonably be said to have ratified a program of which many members of Congress – and all members of the public – were not aware. In 2010, the Senate and House Intelligence Committees requested that the Executive Branch provide all members of Congress access to information about the program before the reauthorization vote. In response, the Executive Branch provided the Intelligence Committee chairs with a classified paper on the program, which was then made available to members of Congress. That availability, however, was limited in a number of ways. First, the briefing papers could only be viewed in secure locations, for a limited time period and under a number of restrictions. See Joint App’x 148‐165. The government does not dispute appellants’ assertion that members of Congress could not bring staff with them when they went to read the briefing papers, nor discuss the program with their staff. And, of course, no public debate on the program took place. In 2011, briefing papers were also provided to the Intelligence Committees, but only the Senate Committee shared the papers with other members of that body who were not committee members. The House Intelligence Committee did not share the papers at all with non‐members, leaving the non‐committee Representatives in
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the dark as to the program. See generally id. at 170‐73; see also Clapper, 959 F. Supp. 2d at 745.
To be sure, the government is correct that whether a particular interpretation was legislatively ratified ordinarily should not depend on the “number of legislators with actual knowledge of the government’s interpretation.” Appellees’ Br. 36. We do not insist, in the ordinary case, on evidence that members of Congress actually read and understood administrative or judicial decisions interpreting a statute to apply the doctrine of ratification. But this is far from the ordinary case. In the ordinary case in which we apply the Lorillard presumption, the administrative or judicial interpretation argued to have been ratified by Congress was available to the public in published sources. Concerned citizens and interest groups had every opportunity to bring interpretations that they believed were incorrect or undesirable to the attention of their representatives in the House and Senate, and to lobby for legislation rejecting those interpretations. To the extent that some members of Congress were unaware of the details of those interpretations, their ignorance itself very likely reflected the absence of any particular controversy surrounding them.
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In sharp contrast, the telephone metadata program was (for understandable reasons) shrouded in the secrecy applicable to classified information, and only a limited subset of members of Congress had a comprehensive understanding of the program or of its purported legal bases. There was certainly no opportunity for broad discussion in the Congress or among the public of whether the FISC’s interpretation of § 215 was correct.11 Finding the government’s interpretation of the statute to have been “legislatively ratified” under these circumstances would ignore reality. Practically speaking, it is a far stretch to say that Congress was aware of the FISC’s legal interpretation of § 215 when it reauthorized the statute in 2010 and 2011. We therefore cannot accept the argument that Congress, by reauthorizing § 215 without change in 2010 and 2011, thereby legislatively ratified the interpretation of § 215 urged by the government. The widespread controversy that developed, in and out of Congress, upon the public disclosure of the program makes clear that this is not a
11 Indeed, the discrepancy between the conclusion we reach herein and that reached by the FISC may, at least in part, be accounted for by our having received the benefit of an adversarial presentation of the issues. See post at pp. 6, 11 (Sack, J., concurring).
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situation in which Congress quietly but knowingly adopted the FISC’s interpretation of § 215 because there was no real opposition to that interpretation.
For all of the above reasons, we hold that the text of § 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program. We do so comfortably in the full understanding that if Congress chooses to authorize such a far‐reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously. Until such time as it does so, however, we decline to deviate from widely accepted interpretations of well‐established legal standards. We therefore disagree with the district court insofar as it held that appellants’ statutory claims failed on the merits, and vacate its judgment dismissing the complaint. IV. Constitutional Claims
In addition to arguing that the telephone metadata program is not authorized by § 215, appellants argue that, even if the program is authorized by statute, it violates their rights under the Fourth and First Amendments to the
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Constitution. The Fourth Amendment claim, in particular, presents potentially
vexing issues.12
Appellants contend that the seizure from their telephone service providers,
and eventual search, of records of the metadata relating to their telephone
communications violates their expectations of privacy under the Fourth
Amendment in the absence of a search warrant based on probable cause to
believe that evidence of criminal conduct will be found in the records. The
government responds that the warrant and probable cause requirements of the
Fourth Amendment are not implicated because appellants have no privacy rights
in the records. This dispute touches an issue on which the Supreme Court’s
jurisprudence is in some turmoil.
12 For that reason, we discuss infra some of the Fourth Amendment concerns that the program implicates. As to the First Amendment issues, appellants argue that the program infringes their First Amendment associational privacy and free speech rights, “substantially impair[ing]” those rights by “expos[ing] their telephonic associations to government monitoring and scrutiny.” Appellants’ Br. 53. They contend that the program must therefore survive “exacting scrutiny.” Id. at 58. The government responds, as to the merits of appellants’ First Amendment claim, that any such burdens are merely “incidental.” Appellees’ Br. 54. As noted infra, because we find that the telephone metadata program exceeds the bounds of what is authorized by § 215, we need not reach either constitutional issue, and we see no reason to discuss the First Amendment claims in greater depth.
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In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court departed from the property‐based approach to the Fourth Amendment that had governed since Olmstead v. United States, 277 U.S. 438 (1928), which depended upon whether an actual physical trespass of property had occurred. As explained in Justice Harlan’s concurring opinion, the Court held in Katz that a search occurs where “a person ha[s] exhibited an actual (subjective) expectation of privacy, and . . . the expectation [is] one that society is prepared to recognize as ‘reasonable.’” 389 U.S. at 361 (Harlan, J., concurring).
The Supreme Court has also long held, however, that individuals have no “legitimate expectation of privacy in information [they] voluntarily turn[] over to third parties.” Smith v. Maryland, 442 U.S. 735, 743‐44 (1979); see, e.g., California v. Greenwood, 486 U.S. 35 (1988) (no objectively reasonable expectation of privacy in garbage exposed to the public by being placed on a sidewalk); United States v. Miller, 425 U.S. 435 (1976) (no legitimate expectation of privacy in bank records). In Smith v. Maryland, the Court applied that doctrine to uphold the constitutionality of installing a pen register at a telephone company’s office that recorded the numbers dialed from a criminal suspect’s home telephone. 442 U.S. at 737, 745‐46. The Court held that the installation of the pen register was not a
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search for Fourth Amendment purposes because, by placing calls, individuals expose the telephone numbers they dial to the telephone company and therefore “assume[] the risk that the company [may] reveal to police the numbers . . . dialed.” Id. at 744. Similarly, it has long been commonplace for grand juries to subpoena an individual’s telephone records from the individual’s telephone service provider, in the absence of probable cause or a warrant issued by a judge. The acquisition of such records, it has been held, implicates no legitimate privacy interest of the subscriber, because the records are not his or hers alone. See, e.g., id. at 742‐44; Miller, 425 U.S. at 443; Couch v. United States, 409 U.S. 322, 334‐36 (1973). The subscriber cannot reasonably believe that the records are private, because he or she has voluntarily exposed the information contained in them to the telephone company, which uses them for its own business purpose of billing the subscriber.
The government argues, and the district court held, that this doctrine requires rejection of appellants’ claim that the acquisition of telephone metadata (as opposed to the contents of communications) violates the Fourth Amendment, or even implicates its protections at all. Appellants respond that modern
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technology requires revisitation of the underpinnings of the third‐party records doctrine as applied to telephone metadata.
Appellants’ argument invokes one of the most difficult issues in Fourth Amendment jurisprudence: the extent to which modern technology alters our traditional expectations of privacy. On the one hand, the very notion of an individual’s expectation of privacy, considered in Katz a key component of the rights protected by the Fourth Amendment, may seem quaint in a world in which technology makes it possible for individuals and businesses (to say nothing of the government) to observe acts of individuals once regarded as protected from public view. On the other hand, rules that permit the government to obtain records and other information that consumers have shared with businesses without a warrant seem much more threatening as the extent of such information grows.
Appellants point to the Supreme Court’s decision in United States v. Jones, 132 S. Ct. 945 (2012), as exemplifying the kind of challenge to apparently established law that they seek to bring. Jones does not address telephone or other business records, but arose in the somewhat analogous context of physical surveillance. Prior to Jones, in United States v. Knotts, 460 U.S. 276 (1983), in a
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ruling based in substantial part on the core notion that an individual has no expectation of privacy in what he exposes to the eyes of third parties, the Court held that a person has no expectation of privacy in his public movements, because he “voluntarily convey[s] to anyone who want[s] to look the fact that he [i]s traveling on particular roads in a particular direction, the fact of whatever stops he ma[kes], and the fact of his final destination.” Id. at 281‐82. The Court therefore ruled that, just as police agents may follow a suspect in public without a warrant or probable cause, the government’s use of a beeper to follow a suspect without a warrant was constitutional; the beeper merely “augment[ed]” the officers’ normal sensory faculties, but did nothing that an individual otherwise monitoring the suspect could not do without it. Id. at 282. The Court noted, however, in response to concern about the potential for twenty‐four hour surveillance without judicial supervision, that “if . . . dragnet type law enforcement practices . . . should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.” Id. at 284.
That opportunity came decades later, in Jones. In that case, the government had tracked an individual’s location over the course of 28 days using
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a GPS tracking device it had attached to his vehicle without first obtaining a warrant. 132 S. Ct. at 948. The D.C. Circuit held that, because an individual does not expose his location to the public over the course of an entire month, either actually or constructively, the proper framework from which to analyze the operation was not a variation on the third‐party doctrine but instead Katz’s reasonable expectation of privacy standard. United States v. Maynard, 615 F.3d 544, 555‐63 (D.C. Cir. 2010), aff’d on other grounds sub nom. Jones, 132 S. Ct. 945. It held that the defendant’s expectation of privacy had been violated, because the long‐term surveillance revealed a “mosaic” of information in which individuals had privacy interests, even in the absence of a privacy interest in discrete pieces of such information. Id. at 562‐63.
The Supreme Court affirmed the D.C. Circuit’s opinion, but on different grounds. It held that the operation was a search entitled to Fourth Amendment protection because the attachment of the GPS device constituted a technical trespass on the defendant’s vehicle. Jones, 132 S. Ct. at 949‐53. The Court’s majority opinion declined to reach the issue of whether the operation would have passed Katz’s “reasonableness” test, id. at 954, or whether the third‐party doctrine instead applied, id. at 952.
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As appellants note, however, five of the Justices appeared to suggest that there might be a Fourth Amendment violation even without the technical trespass upon which the majority opinion relied. Four of the Justices argued that the Court should have applied the Katz “reasonableness” test, and that the surveillance would not survive that test. Id. at 957‐58, 964 (Alito, J., concurring). Justice Sotomayor noted in another concurring opinion that “the majority opinion’s trespassory test may provide little guidance” for certain modern‐day surveillance techniques, for which physical trespass is often not necessary. Id. at 955 (Sotomayor, J., concurring). Consequently, she observed that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” noting that such an approach 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.” Id. at 957.
Appellants argue that the telephone metadata program provides an archetypal example of the kind of technologically advanced surveillance techniques that, they contend, require a revision of the third‐party records doctrine. Metadata today, as applied to individual telephone subscribers,
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particularly with relation to mobile phone services and when collected on an ongoing basis with respect to all of an individual’s calls (and not merely, as in traditional criminal investigations, for a limited period connected to the investigation of a particular crime), permit something akin to the 24‐hour surveillance that worried some of the Court in Jones. Moreover, the bulk collection of data as to essentially the entire population of the United States, something inconceivable before the advent of high‐speed computers, permits the development of a government database with a potential for invasions of privacy unimaginable in the past. Thus, appellants argue, the program cannot simply be sustained on the reasoning that permits the government to obtain, for a limited period of time as applied to persons suspected of wrongdoing, a simple record of the phone numbers contained in their service providers’ billing records.
Because we conclude that the challenged program was not authorized by the statute on which the government bases its claim of legal authority, we need not and do not reach these weighty constitutional issues. The seriousness of the constitutional concerns, however, has some bearing on what we hold today, and on the consequences of that holding.
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We note first that whether Congress has considered and authorized a program such as this one is not irrelevant to its constitutionality. The endorsement of the Legislative Branch of government provides some degree of comfort in the face of concerns about the reasonableness of the government’s assertions of the necessity of the data collection. Congress is better positioned than the courts to understand and balance the intricacies and competing concerns involved in protecting our national security, and to pass judgment on the value of the telephone metadata program as a counterterrorism tool. Moreover, the legislative process has considerable advantages in developing knowledge about the far‐reaching technological advances that render today’s surveillance methods drastically different from what has existed in the past, and in understanding the consequences of a world in which individuals can barely function without involuntarily creating metadata that can reveal a great deal of information about them. A congressional judgment as to what is “reasonable” under current circumstances would carry weight – at least with us, and, we assume, with the Supreme Court as well – in assessing whether the availability of information to telephone companies, banks, internet service providers, and the like, and the ability of the government to collect and process volumes of such data that would
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previously have overwhelmed its capacity to make use of the information, render obsolete the third‐party records doctrine or, conversely, reduce our expectations of privacy and make more intrusive techniques both expected and necessary to deal with new kinds of threats.
Finally, we are not unmindful that a full debate by Congress of the appropriateness of a program such as that now operated by the government may result in the approval of a program with greater safeguards for privacy, or with other limitations, that are not now in place and that could alter or even moot the issues presented by appellants.13 In the last Congress, for example, a bill to authorize a modified version of the telephone metadata program, supported by the Administration, passed the House of Representatives; a similar bill failed in the Senate after a majority of senators – but not the required 60 to cut off debate – sought to bring the bill to a vote. See USA FREEDOM Act, H.R. 3361, 113th Cong. (2014); USA FREEDOM Act, S. 2685, 113th Cong. (2014). As noted above, more recently, on April 30, 2015, a modified version of the USA FREEDOM Act, which would limit the bulk metadata program in various ways, was passed by
13 We note that, at oral argument, appellants’ counsel indicated that the adoption of certain measures would lead at least these appellants to withdraw their constitutional challenges.
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the House Judiciary Committee, see USA FREEDOM Act of 2015, H.R. 2048, 114th Cong. (2015), and a vote in that Chamber is expected later this month. An identical bill has been introduced in the Senate and referred to the Senate Judiciary Committee. See USA FREEDOM Act of 2015, S. 1123, 114th Cong. (2015).
We reiterate that, just as we do not here address the constitutionality of the program as it currently exists, we do not purport to express any view on the constitutionality of any alternative version of the program. The constitutional issues, however, are sufficiently daunting to remind us of the primary role that should be played by our elected representatives in deciding, explicitly and after full debate, whether such programs are appropriate and necessary. Ideally, such issues should be resolved by the courts only after such debate, with due respect for any conclusions reached by the coordinate branches of government. V. Preliminary Injunction
Finally, we consider the district court’s denial of appellants’ motion for a preliminary injunction. A party seeking a preliminary injunction must either show that he is likely to succeed on the merits; that he is likely to suffer irreparable harm in the absence of preliminary relief; that the balance of equities
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tips in his favor; and that an injunction is in the public interest, Winter v. NRDC, 555 U.S. 7, 20 (2008); or he may show irreparable harm and either a likelihood of success on the merits or “sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief,” Christian Louboutin S.A. v. Yves Saint Laurent Am. Holdings, Inc., 696 F.3d 206, 215 (2d Cir. 2012) (internal quotation marks omitted).
Here, as is clear from our analysis above, the district court erred in certain respects on several issues of law critical to deciding the legality of the government’s program. On a correct view of those issues, appellants have shown a likelihood – indeed, a certainty – of success on the merits of at least their statutory claims. Appellants argue that, because they have alleged a deprivation of constitutional rights, we should presume irreparable harm, and that the balance of equities tips in their favor, because the government does not have any legitimate interest in conducting unlawful surveillance.
At least at this point, however, we decline to conclude that a preliminary injunction is required, and leave it to the district court to reconsider, in the first instance, the propriety of preliminary relief in light of a correct understanding of
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the governing law. We note that at the present time, § 215 is scheduled to expire in just several weeks. The government vigorously contends that the program is necessary for maintaining national security, which of course is a public interest of the highest order. Allowing the program to remain in place for a few weeks while Congress decides whether and under what conditions it should continue is a lesser intrusion on appellants’ privacy than they faced at the time this litigation began. In light of the asserted national security interests at stake, we deem it prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape.
Moreover, given the necessity of congressional action, the statutory issues on which we rest our decision could become moot (at least as far as the future of the telephone metadata program is concerned), and the constitutional issues appellants continue to press radically altered, by events that will occur in a short time frame. If Congress decides to authorize the collection of the data desired by the government under conditions identical to those now in place, the program will continue in the future under that authorization. There will be time then to address appellants’ constitutional issues, which may be significantly altered by the findings made, and conclusions reached, by the political branches, and to
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decide what if any relief appellants are entitled to based on our finding that the program as it has operated to date is unlawful. If Congress decides to institute a substantially modified program, the constitutional issues will certainly differ considerably from those currently raised. If Congress fails to reauthorize § 215 itself, or reenacts § 215 without expanding it to authorize the telephone metadata program, there will be no need for prospective relief, since the program will end, and once again there will be time to address what if any relief is required in terms of the data already acquired by the government. We believe that such issues will be best addressed in the first instance by the district court in due course.
CONCLUSION This case serves as an example of the increasing complexity of balancing the paramount interest in protecting the security of our nation – a job in which, as the President has stated, “actions are second‐guessed, success is unreported, and failure can be catastrophic,” Remarks by the President on Review of Signals Intelligence – with the privacy interests of its citizens in a world where surveillance capabilities are vast and where it is difficult if not impossible to avoid exposing a wealth of information about oneself to those surveillance
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For the foregoing reasons, we conclude that the district court erred in ruling that § 215 authorizes the telephone metadata collection program, and instead hold that the telephone metadata program exceeds the scope of what Congress has authorized and therefore violates § 215. Accordingly, we VACATE the district court’s judgment dismissing the complaint and REMAND the case to the district court for further proceedings consistent with this opinion.
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14‐42‐cv ACLU, et al. v. Clapper, et al.
SACK, Circuit Judge, concurring:
I fully concur in Judge Lynchʹs opinion for the Court. I nonetheless take
the liberty of offering several additional observations about the import of todayʹs
decision.
Because our decision is based on our reading of a federal statute, not the
Constitution, Congress can in effect overrule it. The enactment of a statute
amending or supplanting the portion of section 215 that, until now, has been
interpreted to authorize the NSAʹs bulk collection program would likely do the
job, subject, of course, to a subsequent constitutional challenge in the courts.
Alternatively, Congress might simply terminate the program. Recent news
dispatches indicate that it is considering doing just that.1 And the plaintiffs have
suggested that their grievance could be addressed by a statutory amendment
1 See Jonathan Weisman & Jennifer Steinhauer, Patriot Act Faces Curbs Supported by Both Parties, N.Y. Times, May 1, 2015, at A1; see also, e.g., Ellen Nakashima, With Deadline Near, Lawmakers Introduce Bill to End NSA Program, Wash. Post, Apr. 28, 2015, http://www.washingtonpost.com/world/national‐security/with‐deadline‐near‐ lawmakers‐introduce‐bill‐to‐end‐nsa‐program/2015/04/28/8fd1cf6e‐edb4‐11e4‐a55f‐ 38924fca94f9_story.html; Spencer Ackerman, NSA Reform Bill Imperilled as it Competes with Alternative Effort in the Senate, The Guardian, Apr. 28, 2015, http://www.theguardian.com/us‐news/2015/apr/28/house‐nsa‐reform‐bill‐senate‐usa‐ freedom‐act; H.R. 1466, 114th Cong. (2015).
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replacing the bulk collection program with an arrangement under which the telephone companies will retain the metadata in question, subject to valid government subpoenas. See Argument Tr. at 7‐8 (Sept. 2, 2014) (statement by counsel for the appellant); Jonathan Weisman & Jennifer Steinhauer, Patriot Act Faces Curbs Supported by Both Parties, N.Y. Times, May 1, 2015, at A1 (reporting that, under ʺbipartisan bills in the House and Senate, the Patriot Act would be changed to prohibit bulk collection . . . . The data would instead be stored by the phone companies themselves, and could be accessed by intelligence agencies only after approval of theʺ Foreign Intelligence Surveillance Court).
In any event, as Judge Lynchʹs opinion makes clear, it is Congressʹs prerogative, not ours, to resolve the conflict underlying these issues in the first instance. Ante at 7, 90.
In that connection, Judge Lynchʹs opinion refers to ʺthe primary role that should be played by [Congress] in deciding, explicitly and after full debate, whether such programs [as those pursuant to which the NSA has collected telephone metadata] are appropriate and necessary.ʺ Ante at 92. I agree. I think it nonetheless appropriate to pause to ensure that that statement is not read to devalue or minimize the role of the courts in determining the meaning of any
2

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such legislation, its future application to particular acts or practices of the federal government and others, or its propriety under the Constitution. The courts are charged with the responsibility of making those judgments. They are, as an institution, tasked with the duty, in the context of cases or controversies properly brought before them, to seek to reconcile the never completely reconcilable tension between the individualʹs interest in privacy and right to civil liberties and the governmentʹs duty to protect American lives and property.2
The role of Congress under Article I of the Constitution and that of the courts under Article III, ʺin the face of the concerns about the reasonableness of the [] assertions [by the Executive Branch under Article II] of the necessity of the data collection,ʺ ante at 90, are, moreover, not entirely independent from one another. Congress has for more than thirty‐five years looked to the Foreign Intelligence Surveillance Court (the ʺFISCʺ), first established for such matters under the Foreign Intelligence Surveillance Act of 1978 (ʺFISAʺ), to adjudicate cases and controversies arising out of the application and administration of the Act. See ante at 6.
2 The writer has expressed general views on the subject elsewhere. See Robert D. Sack, Speech: Judicial Skepticism and the Threat of Terrorism, 31 W. New Eng. L. Rev. 1 (2009) (adapted from Law Day speech before the Federal Bar Council, New York City, May 1, 2008).
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The FISC, like the quotidian federal district courts and courts of appeals, is established under Article III of the Constitution.3 But because of its specialized role dealing with matters touching on national security concerns, it conducts its proceedings differently. Two of the fundamental characteristics of ordinary Article III courts that are often considered central to their mission are transparency (ʺopennessʺ) and a properly functioning adversary system. Neither transparency nor a true adversary system characterizes the operation of the FISC.
Thus, most Article III courts, including this Court, operate under a strong presumption that their papers and proceedings are open to the public. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571‐72 (1980).
The value of openness lies in the fact that people . . . can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system. Press‐Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 508 (1984) (emphasis omitted). ʺPeople in an open society do not demand infallibility from their
3 ʺThe judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.ʺ U.S. Const., Art. III, § 1.
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institutions, but it is difficult for them to accept what they are prohibited from
observing.ʺ Richmond Newspapers, Inc., 448 U.S. at 572.4
The FISC, by contrast, operates largely behind closed doors. While it may
do so at the cost of some public confidence, the courtʹs ability to do otherwise
would appear to be, at best, limited. Information cannot simultaneously be kept
secret and made public at the same time – at least not this side of quantum
physics.5
This conundrum is not unique to the FISC – it confronts any Article III
court addressing what purports to constitute state secrets or other information
the confidentiality of which is protectable by law. See, e.g., United States v.
Reynolds, 345 U.S. 1 (1953) (setting forth the method for judicial consideration of
4 The Supreme Courtʹs case law has been developed largely in the context of criminal cases. It likely also applies to civil proceedings. See, e.g., Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir. 2004) (applying principles of First Amendment rights of access to federal courts to conclude that there is a ʺqualified First Amendment right to inspect [civil] docket sheets, which provide an index to the records of judicial proceedingsʺ); Marc A. Franklin, et al., Mass Media Law: Cases and Materials 596 (8th ed. 2011) (ʺThe Supreme Court has not decided whether there is a constitutional right of access to civil trials, but lower courts have assumed that the First Amendment right to attend civil trials is at least as strong as the right to attend criminal trials.ʺ (citing, inter alia, Westmoreland v. CBS, 752 F.2d 16, 23 (2d Cir. 1984); Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984))). 5 To be sure, there may be aspects of FISC operations that simply do not warrant secret treatment. Cf. Weisman & Steinhauer, supra (reporting that proposed congressional legislation would require the declassification of all significant FISA court opinions). I doubt, though, that in light of the likely scope of these exceptions, they materially affect my overall observations about in camera FISC proceedings.
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civil cases touching on state secrets); United States v. Stewart, 590 F.3d 93, 125‐32
(2d Cir. 2009) (describing at length the methods employed when a criminal
defendant in federal district court seeks FISA documents); Doe v. CIA, 576 F.3d 95
(2d Cir. 2009) (civil) (describing this Courtʹs manner of conducting an appeal
involving state secrets). In such cases, courts typically operate publicly only to
the extent they think practicable after evaluating the basis of the governmentʹs
purported need for secrecy and the effects of such secrecy on the other parties
before them.
The absence of a robust adversary system in the FISC may be another
matter. It requires little beyond the common experience of bench and bar to
establish the general importance to courts and the parties before them of hearing
from all sides of a dispute. The Supreme Court has recognized that:
Adversary proceedings are a major aspect of our system of criminal justice. Their superiority as a means for attaining justice in a given case is nowhere more evident than in those cases, such as the ones at bar, where an issue must be decided on the basis of a large volume of factual materials, and after consideration of the many and subtle interrelationships which may exist among the facts reflected by these records. As the need for adversary inquiry is increased by the complexity of the issues presented for adjudication, and by the consequent inadequacy of ex parte procedures as a means for their accurate resolution, the displacement of well‐informed advocacy necessarily becomes less justifiable. Alderman v. United States, 394 U.S. 165, 183‐84 (1969).
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Considering the issue of advocacy in the context of deliberations involving
alleged state secrets, and, more broadly, the ʺleakʺ6 by Edward Snowden that led
to this litigation,7 calls to mind the disclosures by Daniel Ellsberg that gave rise to
the legendary ʺPentagon Papersʺ litigation.8 The district court and court of
appeals stages of the Pentagon Papers case unfolded in this courthouse some
forty‐four years ago. United States v. New York Times Co. (the ʺPentagon Papersʺ
case), 328 F. Supp. 324, 333 (S.D.N.Y.) (Gurfein, J.), remanded, 444 F.2d 544 (2d
6 I use quotation marks around the term ʺleakʺ for reasons adverted to in New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006) (Sack, J., dissenting):
[T]he use of the term ʺleakʺ to identify unauthorized disclosures in this context may be unhelpful. It misleadingly suggests a system that is broken. Some unauthorized disclosures may be harmful indeed. But others likely contribute to the general welfare . . . . Secretive bureaucratic agencies, like hermetically sealed houses, often benefit from a breath of fresh air. Id. at 183 (Sack, J., dissenting) (footnotes omitted).
7 The complaint was filed about one week after and based on the disclosure. See ACLU v. Clapper, No. 11‐cv‐7562, DI 1 (Complaint). Although the ʺleakʺ led to this litigation, our decision is not about the Snowden disclosures themselves nor should the significance of our rather complex analysis of the statute be confused with the significance vel non of the security breach or the NSA telephone metadata program.
8 A ʺLexisʺ search conducted by the writer on April 29, 2015 disclosed more than 40 articles comparing the two sets of unauthorized disclosures in ʺMajor Newspapers,ʺ including The Los Angeles Times, The Hartford Courant, The Globe and Mail (Canada), The Boston Globe, The San Francisco Chronicle and The Seattle Times. A further such ʺLexisʺ search of The New York Times also found multiple examples. See also, Jonathan Capehart, Snowden Is No Daniel Ellsberg, Wash. Post, July 2, 2013, at A15 (ʺI pleaded last month for an end to the breathless comparisons between Edward Snowden and Daniel Ellsberg.ʺ).
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Cir.) (en banc) (per curiam), revʹd, 403 U.S. 713 (1971) (per curiam). The issues in that case, like the concerns that led to the deliberations of the Church Committee, and then to FISAʹs enactment and the creation of the FISC, arose, as Judge Lynch puts it, during ʺthe early 1970s, in a climate not altogether unlike todayʹs.ʺ Ante at 5. His observation is reminiscent of Judge Gurfeinʹs somber contemporary dictum about the same era: ʺThese are troubled times.ʺ Pentagon Papers, 328 F. Supp. at 331.
The disclosures, the national security issues, and the challenges facing the Pentagon Papers district court and the FISC are different. There is, however, at least one aspect of the Pentagon Papers cases that may be instructive here.
The FISCʹs hearings are, as noted, held ex parte. The targets of their proceedings are ordinarily not represented by counsel. (Indeed it seems likely that targets are usually unaware of the existence of the proceedings or their subject.) In the Pentagon Papers case, the court held a hearing, part in public and part in camera, to determine the facts of the case and the whether further publication of the papers would endanger legitimate national security interests. In both the open and closed portions of the hearing, The New York Times enjoyed the assistance of highly competent counsel. The Times and its counsel already
8

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had access to the material that the government was attempting to keep from further public view; barring their presence in the otherwise closed hearing room would not have advanced the legitimate security interests of the United States. Their attendance at the hearing apparently turned out to be pivotal.
During the public portion of the hearing, there was little indication that Judge Gurfein was sympathetic to the Timesʹ position that further publication of the Papers, which were marked classified, was constitutionally protected or otherwise permissible. See David Rudenstine, The Day the Presses Stopped: A History of the Pentagon Papers Case 107‐52 (1996). As the public portion of the hearing closed, ʺthe government had reason to be confident that it would prevail, and the Times lawyers could take very little comfort from what had so far occurred.ʺ Id. at 152.
It was only upon the Timesʹ cross‐examination of the first witness in the subsequent closed‐door hearing, in which the Timesʹ counsel focused relentlessly on what, specifically, in the Papers would present a threat to the United States if disclosed and why, that Judge Gurfeinʹs apparent leaning began to shift towards the position of the Times. Id.; see also James C. Goodale, Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles 105‐07 (2013) (describing the
9

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participation of counsel for the Times at the closed‐door hearing). The Judgeʹs
own questioning of the witnesses9 evinced his emerging acceptance of the Timesʹ
position and his embrace of the nature of the governmentʹs burden. Only after
hearing extensive argument, examination, and cross‐examination, from both
sides, did Judge Gurfein conclude: ʺI am constrained to find as a fact that the in
camera proceedings at which representatives of the Department of State,
Department of Defense and the Joint Chiefs of Staff testified, did not convince
this Court that the publication of these historical documents would seriously
breach the national security.ʺ Pentagon Papers, 328 F. Supp. at 330. By common,
if not universal, consensus, the district courtʹs conclusion that the publication of
the Papers by the Times would not ʺinvolve a serious security danger,ʺ informed
9 By happy coincidence, also contributing to the ability of the district court effectively to address the issue of the national security implications of further publication was the fact that Judge Gurfein had spent four years in World War II and after as an officer, rising to the rank of Lieutenant Colonel in the O.S.S. (Office of Strategic Services). See Biographical Directory of Federal Judges – Gurfein, Murray Irwin, Federal Judicial Center, http://www.fjc.gov/servlet/nGetInfo?jid=930&cid=999&ctype=na&instate=na (last visited April 30, 2015). The O.S.S. was the predecessor of the Central Intelligence Agency. See History of the CIA, Central Intelligence Agency, https://www.cia.gov/about‐ cia/history‐of‐the‐cia/index.html (last visited April 30, 2015); see also Goodale, supra at 101 (describing Judge Gurfeinʹs use of his intelligence background during the hearing).
Notably, the possibility of giving the FISC improved access to relevant expertise is reflected in currently proposed legislation. See Weisman & Steinhauer, supra (ʺThe legislation would . . . create a panel of experts to advise the FISA court on privacy, civil liberties, and technology matters . . . .ʺ).
10

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as it was by the participation of legal representatives of all parties, was right.10
It may be worth considering that the participation of an adversary to the
government at some point in the FISCʹs proceedings could similarly provide a
significant benefit to that court. The FISC otherwise may be subject to the
understandable suspicion that, hearing only from the government, it is likely to
be strongly inclined to rule for the government. And at least in some cases it
may be that its decision‐making would be improved by the presence of counsel
opposing the governmentʹs assertions before the court. Members of each branch
of government have encouraged some such development.11
10 See Rudenstine, supra, at 326‐29. Some years later, Erwin Griswold, who, as the United States Solicitor General, argued the case in the Supreme Court, conceded as much. He wrote, ʺI have never seen any trace of a threat to the national security from the publication [of the Papers]. Indeed, I have never seen it even suggested that there was such an actual threat.ʺ Erwin N. Griswold, Secrets Not Worth Keeping: The Courts and Classified Information, Wash. Post, Feb. 15, 1989, at A25. He further observed: ʺIt quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.ʺ Id.
11 They include President Obama, Transcript of President Obamaʹs Jan. 17 Speech on NSA Reforms, Wash. Post, Jan. 17, 2014, http://www.washingtonpost.com/politics/full‐ text‐of‐president‐obamas‐jan‐17‐speech‐on‐nsa‐reforms/2014/01/17/fa33590a‐7f8c‐11e3‐ 9556‐4a4bf7bcbd84_story.html, judges who previously served on the FISC, see Charlie Savage, Nation Will Gain by Discussing Surveillance, Expert Tells Privacy Board, N.Y. Times, July 10, 2013, at A16; Judge James G. Carr, A Better Secret Court, N.Y. Times, July 23, 2013, at A21, and some members of Congress, see FISA Court Reform Act of 2013, H.R. 3228, 113th Cong. (2013); The U.S.A. Freedom Act, H.R. 2048, 114th Cong. (2015).
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Having said all that, I reiterate that we do not assert any institutional
capability to provide, recommend, or in the absence of a case or controversy,
pass on the propriety of FISCʹs deliberations. As Judge Lynch’s opinion makes
clear, it is Congress that must decide in the first instance under what
circumstance the government can obtain data touching upon conflicting national
security and personal privacy interests.
Recognition of the dangers to the fundamental rights of citizens that
inevitably arise when the nation attempts effectively to treat grave external
threats to lives and property was not dependent on the creation of telephone
metadata or the preparation of secret reports on the origin of the Vietnam War.
It is as old as the Republic.
Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and
But see Letter from Hon. John D. Bates, Director, Admin. Office of the U.S. Courts, to Hon. Dianne Feinstein, Chairman, Select Comm. on Intelligence, U.S. Senate (Jan. 13, 2014) (arguing that ʺ[t]he participation of a privacy advocate is unnecessary—and could prove counterproductive—in the vast majority of FISA matters, which involve the application of a probable cause or other factual standard to case‐specific facts and typically implicate the privacy interests of few persons other than the specified targetsʺ).
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political rights. To be more safe, they at length become willing to run the risk of being less free. The Federalist No. 8 (Alexander Hamilton). We judges have an often critical part to play in resolving these issues, but only by addressing them in individual cases, according to the law and Constitution, and as best we can.
13

 
 Case 1:13-cv-03994-WHP Document 27 Filed 08/26/13 Page 1 of 35

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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

Plaintiffs, v.

DECLARATION OF PROFESSOR
EDWARD W. FELTEN

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

Case No. 13-cv-03994 (WHP) ECF CASE

Defendants.

DECLARATION OF PROFESSOR EDWARD W. FELTEN I, Edward W. Felten, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following is true and correct: 1. The plaintiffs in this lawsuit have challenged what they term the “mass call-tracking” program of the National Security Agency, and they have asked me to explain the sensitive nature of metadata, particularly when obtained in the aggregate. Below, I discuss how advances in technology and the proliferation of metadata-producing devices, such as phones, have produced rich metadata trails. Many details of our lives can be gleaned by examining those trails, which often yield information more easily than do the actual content of our communications.

Case 1:13-cv-03994-WHP Document 27 Filed 08/26/13 Page 2 of 35
Superimposing our metadata trails onto the trails of everyone within our social group and those of everyone within our contacts’ social groups, paints a picture that can be startlingly detailed. 2. I emphasize that I do not in this declaration pass judgment on the use of metadata analysis in the abstract. It can be an extraordinarily valuable tool. But because it can also be an unexpectedly revealing one—especially when turned to the communications of virtually everyone in the country—I write in the hope that courts will appreciate its power and control its use appropriately.
Biography 3. My name is Edward W. Felten. I am Professor of Computer Science and Public Affairs, as well as Director of the Center for Information Technology Policy, at Princeton University. 4. I received a Bachelor of Science degree in Physics from the California Institute of Technology in 1985, a Master’s degree in Computer Science and Engineering from the University of Washington in 1991, and a Ph.D. in the same field from the University of Washington in 1993. I was appointed as an Assistant Professor of Computer Science at Princeton University in 1993, and was promoted to Associate Professor in 1999 and to full Professor in 2003. In 2006, I received an additional faculty appointment to Princeton’s Woodrow Wilson School of Public and International Affairs. 5. I have served as a consultant or technology advisor in the field of computer science for numerous companies, including Bell Communications Research, International Creative Technologies, Finjan Software, Sun Microsystems, FullComm and Cigital. I have authored numerous books, book chapters, journal articles, symposium articles, and other publications relating to computer science. Among my peer-reviewed publications are papers on the inference
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of personal behavior from large data sets1 and everyday objects,2 as well as work on the extraction of supposedly protected information from personal devices.3 6. I have testified several times before the United States Congress on computer technology issues. 7. In 2011 and 2012, I served as the first Chief Technologist at the U.S. Federal Trade Commission (“FTC”). In that capacity, I served as a senior policy advisor to the FTC Chairman, participated in numerous civil law enforcement investigations, many of which involved privacy issues, and acted as a liaison to the technology community and industry. My privacy-related work at the FTC included participating in the creation of the FTC’s major privacy report issued in March 2012,4 as well as advising agency leadership and staff on rulemaking, law enforcement, negotiation of consent orders, and preparation of testimony. 8. Among my professional honors are memberships in the National Academy of Engineering and the American Academy of Arts and Sciences. I am also a Fellow of the Association of Computing Machinery. A copy of my curriculum vitae is attached as Exhibit 1 to this declaration.
1 Joseph A. Calandrino, Ann Kilzer, Arvind Narayanan, Edward W. Felten & Vitaly Shmatikov, “You Might Also Like:” Privacy Risks of Collaborative Filtering, Proceedings of IEEE Symposium on Security and Privacy (May 2011), http://bit.ly/kUNh4c.
2 William Clarkson, Tim Weyrich, Adam Finkelstein, Nadia Heninger, J. Alex Halderman & Edward W. Felten, Fingerprinting Blank Paper Using Commodity Scanners, Proceedings of IEEE Symposium on Security and Privacy (May 2009), http://bit.ly/19AoMej.
3 J. Alex Halderman, Seth D. Schoen, Nadia Heninger, William Clarkson, William Paul, Joseph A. Calandrino, Ariel J. Feldman, Jacob Appelbaum & Edward W. Felten, Lest We Remember: Cold Boot Attacks on Encryption Keys, Proceedings of USENIX Security Symposium (August 2008), http://bit.ly/13Ux38w.
4 Federal Trade Commission, Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers (March 2012), http://1.usa.gov/HbhCzA.
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The Mass Call Tracking Program 9. On June 5, 2013, The Guardian disclosed an order issued by the Foreign Intelligence Surveillance Court (“FISC”) pursuant to Section 215 of the Patriot Act (the “Verizon Order”).5
This order compelled a Verizon subsidiary, Verizon Business Network Services (“Verizon”), to
produce to the National Security Agency (“NSA”) on “an ongoing daily basis . . . all call detail
records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”6 The
Director of National Intelligence subsequently acknowledged the authenticity of the Verizon Order.7
10. Following the disclosure of the Verizon Order, government officials indicated that the
NSA’s acquisition of call detail records is not limited to customers or subscribers of Verizon. In
particular, the NSA’s collection of this data encompasses telephone calls carried by the country’s three largest phone companies: Verizon, AT&T, and Sprint.8 Because these companies provide
at least one end of the vast majority of telecommunications connectivity in the country, these
5 Secondary Order, In re Application of the FBI for an Order Requiring the Production of Tangible Things from Verizon Bus. Network Servs., Inc. on Behalf of MCI Commc’n Servs., Inc. d/b/a Verizon Bus. Servs., No. BR 13-80 at 2 (FISA Ct. Apr. 25, 2013), available at http://bit.ly/11FY393.
6 Id. at 2 (emphasis added). 7 James R. Clapper, DNI Statement on Recent Unauthorized Disclosures of Classified Information, Office of the Director of National Intelligence (June 6, 2013), http://1.usa.gov/13jwuFc. 8 See Siobhan Gorman et al., U.S. Collects Vast Data Trove, Wall St. J., June 7, 2013, http://on.wsj.com/11uD0ue (“The arrangement with Verizon, AT&T and Sprint, the country’s three largest phone companies means, that every time the majority of Americans makes a call, NSA gets a record of the location, the number called, the time of the call and the length of the conversation, according to people familiar with the matter. . . . AT&T has 107.3 million wireless customers and 31.2 million landline customers. Verizon has 98.9 million wireless customers and 22.2 million landline customers while Sprint has 55 million customers in total.”).
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statements suggest that the NSA is maintaining a record of the metadata associated with nearly every telephone call originating or terminating in the United States. 11. Assuming that there are approximately 3 billion calls made every day in the United States, and also assuming conservatively that each call record takes approximately 50 bytes to store, the mass call tracking program generates approximately 140 gigabytes of data every day, or about 50 terabytes of data each year. 12. Assuming (again conservatively) that a page of text takes 2 kilobytes of storage, the program generates the equivalent of about 70 million pages of information every day, and about 25 billion pages of information every year. 13. Members of Congress have disclosed that this mass call tracking program has been in place for at least seven years, since 2006.9 14. On July 19, 2013, the day that the Verizon Order was set to expire, the Director of National Intelligence disclosed that the FISC had renewed the NSA’s authority to collect telephony metadata in bulk.10 15. As noted above, the Verizon Order requires the production of “call detail records” or “telephony metadata.” According to the order itself, that term encompasses, among other things, the originating and terminating telephone number and the time and duration of any call. Call detail records also typically include information about the location of the parties to the call. See 47 C.F.R. § 64.2003 (2012) (defining “call detail information” as “[a]ny information that
9 See Dan Roberts & Spencer Ackerman, Senator Feinstein: NSA Phone Call Data Collection in Place ‘Since 2006,’ Guardian, June 6, 2013, http://bit.ly/13rfxdu; id. (Senator Saxby Chambliss: “This has been going on for seven years.”); see also ST-09-0002 Working Draft – Office of the Inspector General, National Security Agency & Central Security Service (Mar. 24, 2009), http://bit.ly/14HDGuL.
10 Press Release, Foreign Intelligence Surveillance Court Renews Authority to Collect Telephony Metadata, Office of the Director of National Intelligence (July 19, 2013), http://1.usa.gov/12ThYlT.
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pertains to the transmission of specific telephone calls, including, for outbound calls, the number called, and the time, location, or duration of any call and, for inbound calls, the number from which the call was placed and the time, location, or duration of any call”). 16. Although this latter definition of “call detail information” includes data identifying the location where calls are made or received, I will not address mobile phone location information in this declaration. While senior intelligence officials have insisted that they have the legal authority under Section 215 to collect mobile phone location information, they have stated that the NSA is not collecting phone location information “under this program.”11 17. The information sought from Verizon also includes “session identifying information”— e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc. These are unique numbers that identify the user or device that is making or receiving a call. Although users who want to evade surveillance can make it difficult to connect these numbers to their individual identities, for the vast majority of ordinary users these numbers can be connected to the specific identity of the user and/or device. 18. The information sought from Verizon also includes the “trunk identifier” of telephone calls. This provides information about how a call was routed through the phone network, which naturally reveals information about the location of the parties. For example, even if the government never obtains cell site location information about a call,12 trunk identifier
11 See Siobhan Gorman & Julian E. Barnes, Officials: NSA Doesn’t Collect CellphoneLocation Records, Wall St. J., June 16, 2013, http://on.wsj.com/13MnSsp; Pema Levy, NSA FISA Metadata Surveillance: Is The Government Using Cell Phones To Gather Location Data?, Int’l Bus. Times, Aug. 2, 2013, http://bit.ly/18WKXOV.
12 Cell site location information (“CSLI”) reflects the cell tower and antenna sector a phone is connected to when communicating with a wireless carrier’s network. Most carriers log and retain CSLI for the start and end of each call made or received by a phone, and some carriers log CSLI
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information revealing that a domestic call was carried by a cable from Hawaii to the mainland
United States will reveal that the caller was in the state of Hawaii at the time the call was placed.
19. In the present case, government officials have stated that the NSA retains telephony metadata gathered under the Verizon Order, and others similar to it, for five years.13 Although
officials have insisted that the orders issued under the telephony metadata program do not
compel the production of customers’ names, it would be trivial for the government to correlate
many telephone numbers with subscriber names using publicly available sources. The
government also has available to it a number of legal tools to compel service providers to produce their customer’s information, including their names.14
Metadata Is Easy to Analyze 20. Telephony metadata is easy to aggregate and analyze. Telephony metadata is, by its
nature, structured data. Telephone numbers are standardized, and are expressed in a predictable
format: In the United States, a three digit area code, followed by a three digit central office
exchange code, and then a four digit subscriber number. Likewise, the time and date information
for text messages and data connections as well. Wireless carriers can also obtain CSLI by “pinging” a phone whenever it is turned on, even if it is not engaged in an active call. The precision of CSLI varies according to several factors, and “[f]or a typical user, over time, some of that data will inevitably reveal locational precision approaching that of GPS.” The Electronic Communications Privacy Act (ECPA), Part 2: Geolocation Privacy and Surveillance: Hearing Before the Subcomm. on Crime, Terrorism, Homeland Sec. & Investigations of the H. Comm. On the Judiciary, 113th Cong. (2013) (statement of Matt Blaze, Associate Professor, University of Pennsylvania), http://1.usa.gov/1awvgOa.
13 See Letter from Ronald Weich, Assistant Attorney General, to Hon. Dianne Feinstein & Hon. Saxby Chambliss, Feb. 2, 2011, http://1.usa.gov/1cdFJ1G (enclosing Report on the National Security Agency’s Bulk Collection Programs for USA PATRIOT Act Reauthorization); Siobhan Gorman & Julian E. Barnes, Officials: NSA Doesn’t Collect Cellphone-Location Records, Wall St. J., June 16, 2013, http://on.wsj.com/13MnSsp.
14 See 18 U.S.C. § 2709 (national security letter); 18 U.S.C. § 2703(c), (d) (court order for records concerning electronic communication service).
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associated with the beginning and end of each call will be stored in a predictable, standardized format. 21. By contrast, the contents of telephone calls are not structured. Some people speak English, others Spanish, French, Mandarin, or Arabic. Some people speak using street slang or in a pidgin dialect, which can be difficult for others to understand. Conversations also lack a common structure: Some people get straight to the point, others engage in lengthy small talk. Speakers have different accents, exhibit verbal stutters and disfluencies. Although automated transcription of speech has advanced, it is still a difficult and error-prone process. 22. In contrast, the structured nature of metadata makes it very easy to analyze massive datasets using sophisticated data-mining and link-analysis programs. That analysis is greatly facilitated by technological advances over the past 35 years in computing, electronic data storage, and digital data mining. Those advances have radically increased our ability to collect, store, and analyze personal communications, including metadata. 23. Innovations in electronic storage today permit us to maintain, cheaply and efficiently, vast amounts of data. The ability to preserve data on this scale is, by itself, an unprecedented development—making possible the maintenance of a digital history that was not previously within the easy reach of any individual, corporation, or government. 24. This newfound data storage capacity has led to new ways of exploiting the digital record. Sophisticated computing tools permit the analysis of large datasets to identify embedded patterns and relationships, including personal details, habits, and behaviors. As a result, individual pieces of data that previously carried less potential to expose private information may now, in the aggregate, reveal sensitive details about our everyday lives—details that we had no intent or expectation of sharing.
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25. IBM’s Analyst’s Notebook and Pen-Link are two such computing tools. Both are widely
used by law enforcement and intelligence agencies for this purpose.15
26. IBM’s Analyst Notebook product is a multi-purpose intelligence analysis tool that
includes specific telephony metadata analysis features, which are “routinely” used to analyze
large amounts of telephony metadata.16 IBM even offers training courses entirely focused on
using Analyst’s Notebook to analyze telephone call records.17
27. Pen-Link is a tool that is purpose-built for processing and analyzing surveillance data. It
is capable of importing subscriber Call Detail Record (“CDR”) data from the proprietary formats
15 Public Safety & Law Enforcement Operations, International Business Machines (last visited Aug. 22, 2013), http://ibm.co/1avGItq (“IBM® i2® solutions help law enforcers to turn huge volumes of crime data into actionable insights by delivering tools for tactical lead generation, intelligence analysis, crime analysis and predictive analysis.”); see also Defense and National Security Operations, International Business Machines (last visited Aug. 22, 2013), http://ibm.co/18nateN (“IBM i2 solutions for military and national security organizations have been used across the world to process and analyze the vast quantities of information that they collect, to generate actionable intelligence and to share insights that help identify, predict and prevent hostile threats.”); see also Pen-Link, Unique Features of Pen-Link v8 at 16 (April 17, 2008), http://bit.ly/153ee9g (“Many U.S. Federal Law Enforcement and Intelligence agencies have acquired agency-wide site license contracts for the use of Pen-Link in their operations throughout the United States…Pen-Link systems are also becoming more frequently used by U.S. intelligence efforts operating in several other countries.”).
16 Case Studies: Edith Cowan University, IBM i2 Solutions Help University Researchers Catch a Group of Would-Be Hackers, International Business Machines (Mar. 27, 2013), http://ibm.co/13J2o36 (“Analyzing this volume of data is nothing new to many law enforcement users who routinely analyze tens of thousands of telephone records using IBM® i2® Analyst’s Notebook®.”).
17 Course Description: Telephone Analysis Using i2 Analyst’s Notebook, International Business Machines (last visited Aug. 22, 2013), http://ibm.co/1d5QlB8 (“This intermediate hands-on 3-day workshop focuses on the techniques of utilizing i2 Analyst's Notebook to conduct telephone toll analysis…Learn to import volumes of call detail records from various phone carriers, analyze those records and identify clusters and patterns in the data. Using both association and temporal charts, discover how to use different layouts and more advanced tools to analyze telephonic data quickly and effectively.”).
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used by the major telephone companies,18 it can import and export call data to several federal surveillance databases,19 as well as interact with commercial providers of public records databases such as ChoicePoint and LexisNexis. Pen-Link can perform automated “call pattern analysis,” which “automatically identifies instances where particular sequences of calls occur, when they occur, how often they occur, and between which numbers and names.”20 As the company notes in its own marketing materials, this feature “would help the analyst determine how many times Joe paged Steve, then Steve called Barbara, then Steve called Joe back.”21
Figure 1: Screenshot of IBM’s Analyst Notebook.22
18 See Pen-Link, Unique Features of Pen-Link v8 at 4 (Apr. 17, 2008), http://bit.ly/153ee9g (describing the capability to import 170 different data formats, used by phone companies to provide call detail records).
19 Id. at 4. 20 Id. at 7. 21 Id. 22 Image taken from Data Analysis and Visualization for Effective Intelligence Analysis, International Business Machines (last visited Aug. 22, 2013), http://ibm.co/16qT3hw.
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28. The contents of calls are far more difficult to analyze in an automated fashion due to their unstructured nature. The government would first have to transcribe the calls and then determine which parts of the conversation are interesting and relevant. Assuming that a call is transcribed correctly, the government must still try to determine the meaning of the conversation: When a surveillance target is recorded saying “the package will be delivered next week,” are they talking about an order they placed from an online retailer, a shipment of drugs being sent through the mail, or a terrorist attack? Parsing and interpreting such information, even when performed manually, is exceptionally difficult. To do so in an automated way, transcribing and data-mining the contents of hundreds of millions of telephone calls per day is an even more difficult task. 29. It is not surprising, then, that intelligence and law enforcement agencies often turn first to metadata. Examining metadata is generally more cost-effective than analyzing content. Of course, the government will likely still have analysts listen to every call made by the highestvalue surveillance targets, but the resources available to the government do not permit it to do this for all of the calls of 300 million Americans.
The Creation of Metadata Is Unavoidable 30. As a general matter, it is practically impossible for individuals to avoid leaving a metadata trail when engaging in real-time communications, such as telephone calls or Internet voice chats. 31. After decades of research (much of it supported by the U.S. government), there now exist many tools that individuals and organizations can use to protect the confidentiality of their communications content. Smartphone applications are available that let individuals make encrypted telephone calls and send secure text messages.23 Freely available software can be used
23 Somini Sengupta, Digital Tools to Curb Snooping, N.Y. Times, July 17, 2013, http://nyti.ms/12JKz1s (describing RedPhone and Silent Circle).
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to encrypt email messages and instant messages sent between computers, which can frustrate government surveillance efforts traditionally performed by intercepting communications as they are transmitted over the Internet. 32. However, these secure communication technologies protect only the content of the conversation and do not protect the metadata. Government agents that intercept an encrypted email may not know what was said, but they will be able to learn the email address that sent the message and the address that received it as well as the size of the message and when it was sent. Likewise, Internet metadata can reveal the parties making an encrypted audio call and the time and duration of the call, even if the voice contents of the call are beyond the reach of a wiretap. 33. There also exist security technologies specifically designed to hide metadata trails, but those technologies do not work quickly enough to allow real-time communication. The general technique for hiding the origin and destination information for an internet communication involves sending data through a series of intermediaries before it reaches the destination, thus making it more difficult for an entity such as a government agency to learn both the source and destination of the communication. (Such data is conventionally encrypted so that the intermediaries cannot capture it; and a series of intermediaries is used so that no one intermediary knows the identities of both endpoints.) 34. The most popular and well-studied of these metadata hiding systems is The Tor Project, which was originally created by the U.S. Naval Research Lab, and has since received significant funding from the State Department. One significant and widely acknowledged limitation of Tor is the noticeable delay introduced by using the tool. Web browsing conducted through Tor is much slower than through a direct connection to the Internet, as all data must be sent through a series of Tor relays, located in different parts of the world. These volunteer-run relays are
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oversubscribed—that is, the demands on the few relays from hundreds of thousands of Tor users are greater than the relays can supply, leading to slowdowns due to “traffic jams” at the relay. 35. Browsing the web using Tor can be painfully slow, in some cases requiring several seconds or longer to load a page. Real-time audio and video communications require a connection with minimal delay, which Tor cannot deliver. Internet telephony and video conferencing services are simply unusable over metadata-protecting systems like Tor. 36. As a result, although individuals can use security technologies to protect the contents of their communications, there exist significant technical barriers that make it difficult, if not impossible, to hide communications metadata, particularly for real-time communications services like Internet telephony and video conferencing. 37. Over the last three decades, and especially with the widespread adoption of mobile phones in the past decade, our reliance on telecommunications has significantly increased. Mobile phones are today ubiquitous, and their use necessarily requires reliance on a service provider to transmit telephone calls, text messages, and other data to and fro. These communications inevitably produce telephony metadata, which is created whenever a person places a call. There is no practical way to prevent the creation of telephony metadata, or to erase it after the fact. The only reliable way to avoid creating such metadata is to avoid telephonic communication altogether.
Telephony Metadata Reveals Content 38. Telephony metadata can be extremely revealing, both at the level of individual calls and, especially, in the aggregate.
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39. Although this metadata might, on first impression, seem to be little more than
“information concerning the numbers dialed,”24 analysis of telephony metadata often reveals
information that could traditionally only be obtained by examining the contents of
communications. That is, metadata is often a proxy for content.
40. In the simplest example, certain telephone numbers are used for a single purpose, such
that any contact reveals basic and often sensitive information about the caller. Examples include
support hotlines for victims of domestic violence25 and rape,26 including a specific hotline for
rape victims in the armed services.27 Similarly, numerous hotlines exist for people considering
suicide,28 including specific services for first responders,29 veterans,30 and gay and lesbian
teenagers.31 Hotlines exist for suffers of various forms of addiction, such as alcohol,32 drugs, and
gambling.33
24 Administration White Paper, Bulk Collection of Telephony Metadata Under Section 215 of the USA Patriot Act 15 (Aug. 9, 2013), http://huff.to/1ey9ua5.
25 National Domestic Violence Hotline, The Hotline (last visited Aug. 22, 2013), http://www.thehotline.org.
26 National Sexual Assault Hotline, RAINN: Rape, Abuse & Incest National Network (last visited Aug. 22, 2013), http://www.rainn.org/get-help/national-sexual-assault-hotline.
27 About the Telephone Helpline, DOD Safe Helpline (last visited Aug. 22, 2013), https://www.safehelpline.org/about-safe-helpline.
28 District of Columbia/Washington D.C. Suicide & Crisis Hotlines, National Suicide Hotlines (last visited Aug. 22, 2013), http://www.suicidehotlines.com/distcolum.html.
29 Get Help Now! Contact us to Get Confidential Help via Phone or Email, Safe Call Now (last visited Aug. 22, 2013), http://safecallnow.org.
30 About the Veterans Crisis Line, Veterans Crisis Line (last visited Aug. 22, 2013), http://www.veteranscrisisline.net/About/AboutVeteransCrisisLine.aspx.
31 We Provide Crisis Intervention and Suicide Prevention for LGBTQ Youth, The Trevor Project (last visited Aug. 22, 2013), thttp://www.thetrevorproject.org.
32 Alcohol Addiction Helpline, Alcohol Hotline (last visited Aug. 22, 2013), http://www.alcoholhotline.com.
33 What is Problem Gambling?, National Council on Problem Gambling (last visited Aug. 22, 2013), http://bit.ly/cyosu.
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41. Similarly, inspectors general at practically every federal agency—including the NSA34— have hotlines through which misconduct, waste, and fraud can be reported, while numerous state tax agencies have dedicated hotlines for reporting tax fraud.35 Hotlines have also been established to report hate crimes,36 arson,37 illegal firearms38 and child abuse.39 In all these cases, the metadata alone conveys a great deal about the content of the call, even without any further information. 42. The phone records indicating that someone called a sexual assault hotline or a tax fraud reporting hotline will of course not reveal the exact words that were spoken during those calls, but phone records indicating a 30-minute call to one of these numbers will still reveal information that virtually everyone would consider extremely private. 43. In some cases, telephony metadata can reveal information that is even more sensitive than the contents of the communication. In recent years, wireless telephone carriers have partnered with non-profit organizations in order to permit wireless subscribers to donate to charities by sending a text message from their telephones. These systems require the subscriber to send a specific text message to a special number, which will then cause the wireless carrier to add that
34 Barton Gellman, NSA Statements to the Post, Wash. Post, Aug. 15, 2013, http://wapo.st/15LliAB.
35 Report Tax Fraud – Tax Fraud Hotline, North Carolina Department of Revenue (last visited Aug. 22, 2013), http://www.dor.state.nc.us/taxes/reportfraud.html.
36 Report Hate Crimes, LAMBDA GLBT Community Services (last visited Aug. 22, 2013), http://www.lambda.org/hatecr2.htm.
37 ATF Hotlines – Arson Hotline, Bureau of Alcohol, Tobacco, Firearms and Explosives (last visited Aug. 22, 2013), http://www.atf.gov/contact/hotlines/index.html.
38 ATF Hotlines – Report Illegal Firearms Activity, Bureau of Alcohol, Tobacco, Firearms and Explosives (last visited Aug. 22, 2013), http://www.atf.gov/contact/hotlines/index.html.
39 Childhelp National Child Abuse Hotline, Childhelp (last visited Aug. 22, 2013), http://www.childhelp.org/pages/hotline-home.
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donation to the subscriber’s monthly telephone bill. For example, by sending the word HAITI to 90999, a wireless subscriber can donate $10 to the American Red Cross. 44. Such text message donation services have proven to be extremely popular. Today, wireless subscribers can use text messages to donate to churches,40 to support breast cancer research,41 and to support reproductive services organizations like Planned Parenthood.42 Similarly, after a policy change in 2012 by the Federal Election Commission, political candidates like Barack Obama and Mitt Romney were able to raise money directly via text message.43 45. In all these cases, the most significant information—the recipient of the donation—is captured in the metadata, while the content of the message itself is less important. The metadata alone reveals the fact that the sender was donating money to their church, to Planned Parenthood, or to a particular political campaign. 46. Although it is difficult to summarize the sensitive information that telephony metadata about a single person can reveal, suffice it to say that it can expose an extraordinary amount about our habits and our associations. Calling patterns can reveal when we are awake and asleep; our religion, if a person regularly makes no calls on the Sabbath, or makes a large number of calls on Christmas Day; our work habits and our social aptitude; the number of friends we have; and even our civil and political affiliations.
40 Several Ways to Give, The Simple Church (2013), http://bit.ly/1508Mgw; Other Ways to Give, North Point Church (last visited Aug. 22, 2013), http://bit.ly/16S3IkO.
41 Donate by Text, Susan G. Komen for the Cure (last visited Aug. 22, 2013), http://sgk.mn/19AjGP7.
42 Help Support a New Future for Illinois Women and Families, Planned Parenthood of Illinois (last visited Aug. 22, 2013), http://bit.ly/1bXI2TX.
43 Dan Eggen, Text to ‘GIVE’ to Obama: President’s Campaign Launches Cellphone Donation Drive, Wash. Post, Aug. 23, 2012, http://bit.ly/16ibjCZ.
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Aggregated Telephony Metadata Is Even More Revealing 47. When call metadata is aggregated and mined for information across time, it can be an even richer repository of personal and associational details. 48. Analysis of metadata on this scale can reveal the network of individuals with whom we communicate—commonly called a social graph. By building a social graph that maps all of an organization’s telephone calls over time, one could obtain a set of contacts that includes a substantial portion of the group’s membership, donors, political supporters, confidential sources, and so on. Analysis of the metadata belonging to these individual callers, by moving one “hop” further out, could help to classify each one, eventually yielding a detailed breakdown of the organization’s associational relationships. 49. For instance, metadata can help identify our closest relationships. Two people in an intimate relationship may regularly call each other, often late in the evening. If those calls become less frequent or end altogether, metadata will tell us that the relationship has likely ended as well—and it will tell us when a new relationship gets underway. More generally, someone you speak to once a year is less likely to be a close friend than someone you talk to once a week. 50. Even our relative power and social status can be determined by calling patterns. As The Economist observed in 2010, “People at the top of the office or social pecking order often receive quick callbacks, do not worry about calling other people late at night and tend to get more calls at times when social events are most often organized (sic), such as Friday afternoons.”44
44 Mining Social Networks: Untangling the Social Web, Economist, Sep. 2, 2010, http://econ.st/9iH1P7.
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51. At times, by placing multiple calls in context, metadata analysis can even reveal patterns and sensitive information that would not be discoverable by intercepting the content of an individual communication. 52. Consider the following hypothetical example: A young woman calls her gynecologist; then immediately calls her mother; then a man who, during the past few months, she had repeatedly spoken to on the telephone after 11pm; followed by a call to a family planning center that also offers abortions. A likely storyline emerges that would not be as evident by examining the record of a single telephone call. 53. Likewise, although metadata revealing a single telephone call to a bookie may suggest that a surveillance target is placing a bet, analysis of metadata over time could reveal that the target has a gambling problem, particularly if the call records also reveal a number of calls made to payday loan services. 54. With a database of telephony metadata reaching back five years, many of these kinds of patterns will emerge once the collected phone records are subjected to even the most basic analytic techniques. 55. With an organization such as the ACLU, aggregated metadata can reveal sensitive information about the internal workings of the organization and about its external associations and affiliations. The ACLU’s metadata trail reflects its relationships with its clients, its legislative contacts, its members, and the prospective whistleblowers who call the organization. Second-order analysis of the telephony metadata of the ACLU’s contacts would then reveal even greater details about each of those contacts. For example, if a government employee suddenly begins contacting phone numbers associated with a number of news organizations and then the ACLU and then, perhaps, a criminal defense lawyer, that person’s identity as a prospective
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whistleblower could be surmised. Or, if the government studied the calling habits of the ACLU’s members, it could assemble a detailed profile of the sorts of individuals who support the ACLU’s mission. 56. I understand from the plaintiffs that they sometimes represent individuals in so-called “John Doe” lawsuits, where the individuals filing suit request anonymity—and are granted it by the courts—because they are juveniles or because they wish to conceal sensitive medical or psychiatric conditions. In such cases, analysis of aggregated metadata might reveal the anonymous litigant. If, for example, the lawyers in the case have only a handful of contacts in common other than mutual co-workers, and one or more of the lawyers generally call the same one of those common contacts shortly before or after hearings or deadlines in the lawsuit, this would imply the identity of the anonymous litigant. If the attorneys’ calling patterns suggest more than one possible identity for the “John Doe,” metadata analysis of the candidate individuals could verify the identity of the “John Doe,” by correlating facts about the individuals with facts detailed in the lawsuit—for example, that he lives in a particular area (based on the area code of his phone or those of the majority of his contacts), that he has a particular job (based on calls made during work hours), that he has a particular medical condition (based on calls to medical clinics or specialists), or that he holds particular religious or political views (based on telephone donations, calls to political campaigns, or contact with religious organizations). 57. Metadata analysis could even expose litigation strategies of the plaintiffs. Review of the ACLU’s telephony metadata might reveal, for example, that lawyers of the organization contacted, for example, an unusually high number of individuals registered as sex offenders in a particular state; or a seemingly random sample of parents of students of color in a racially
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segregated school district; or individuals associated with a protest movement in a particular city or region. 58. In short, aggregated telephony metadata allows the government to construct social graphs and to study their evolution and communications patterns over days, weeks, months, or even years. Metadata analysis can reveal the rise and fall of intimate relationships, the diagnosis of a life-threatening disease, the telltale signs of a corporate merger or acquisition, the identity of a prospective government whistleblower, the social dynamics of a group of associates, or even the name of an anonymous litigant.
Mass Collection of Metadata and Data-Mining Across Many Individuals 59. Advances in the area of “Big Data” over the past few decades have enabled researchers to observe even deeper patterns by mining large pools of metadata that span many telephone subscribers. 60. Researchers have studied databases of call records to analyze the communications reciprocity in relationships,45 the differences in calling patterns between mobile and landline subscribers,46 and the social affinity and social groups of callers.47 61. Researchers have discovered that individuals have unique calling patterns, regardless of which telephone they are using,48 they have figured out how to predict the kind of device that is
45 Lauri Kovanen, Jari Saramaki & Kimmo Kaski, Reciprocity of Mobile Phone Calls, Dynamics of Socio-Economic Systems (Feb. 3, 2010), http://arxiv.org/pdf/1002.0763.pdf.
46 Heath Hohwald, Enrique Frias-Martinez & Nuria Oliver, User Modeling for Telecommunication Applications: Experiences and Practical Implications 8, (Data Mining and User Modeling Group, Telefonica Research, 2013), http://bit.ly/1d7WkUU (“Interestingly, Monday is the day with most calls for landline users, while Friday is the day with most calls for mobile users. . . Mobile users spend less time on the phone than landline users.”).
47 Sara Motahari, Ole J. Mengshoel, Phyllis Reuther, Sandeep Appala, Luca Zoia & Jay Shah, The Impact of Social Affinity on Phone Calling Patterns: Categorizing Social Ties from Call Data Records, The 6th SNA-KDD Workshop (Aug. 12, 2012), http://b.gatech.edu/1d6i4RY.
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making the calls (a telephone or a fax machine),49 developed algorithms capable of predicting whether the phone line is used by a business or for personal use,50 identified callers by social group (workers, commuters, and students) based on their calling patterns,51 and even estimated the personality traits of individual subscribers.52
62. The work of these researchers suggests that the power of metadata analysis and its
potential impact upon the privacy of individuals increases with the scale of the data collected and
analyzed. It is only through access to massive datasets that researchers have been able to identify
or infer new and previously private facts about the individuals whose calling records make up the
telephone databases. Just as multiple calls by the same person reveal more than a single call, so
too does a database containing calling data about millions of people reveal more information
about the individuals contained within it than a database with calling data about just one person.
As such, a universal database containing records about all Americans’ communications will
reveal vastly more information, including new observable facts not currently known to the
48 Corrina Cortes, Daryl Pregibon & Chris Volinsky, Communities of Interest, AT&T Shannon Research Labs, http://www.research.att.com/~volinsky/papers/portugal.ps.
49 Haim Kaplan, Maria Strauss & Mario Szegedy, Just the Fax – Differentiating Voice and Fax Phone Lines Using Call Billing Data, AT&T Labs, http://bit.ly/19Aa8Ua.
50 Corinna Cortes & Daryl Pregibon, Giga-Mining, AT&T Labs-Research, http://bit.ly/153pMcI.
51 Richard A. Becker, Ramon Caceres, Karrie Hanson, Ji Meng Loh, Simon Urbanek, Alexander Varshavsky & Chris Volinsky, Clustering Anonymized Mobile Call Detail Records to Find Usage Groups, AT&T Labs-Research, http://soc.att.com/16jmKdz.
52 Rodrigo de Oliveira, Alexandros Karatzoglou, Pedro Concejero, Ana Armenta & Nuria Oliver, Towards a Psychographic User Model from Mobile Phone Usage, CHI 2011 Work-inProgress (May 7–12, 2011), http://bit.ly/1f51mOy; see also Yves-Alexandre de Montjoye, Jordi Quoidbach, Florent Robic & Alex (Sandy) Pentland, Predicting People Personality Using Novel Mobile Phone-Based Metrics. Social Computing, Behavioral-Cultural Modeling and Prediction (2013), http://bit.ly/1867vWU.
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research commW1ity, because no researcher has access to the kind of dataset that the government is presumed to have. 63 . A common theme is seen in many of these examples of "big data" analysis of metadata. The analyst uses metadata about many individuals to discover patterns of behavior that are indicative of some attribute of an individual. The analyst can then apply these patterns to the metadata of an individual user, to infer the likely attributes of that user. In this way, the effect of collecting metadata about one individual is magnified when information is collected across the whole population. 64. The privacy impact of collecting all communications metadata about a single person for long periods of time is qualitatively different than doing so over a period of days. Similarly, the privacy impact of assembling the call records of every American is vastly greater than the impact of collecting data about a single person or even groups of people. Mass collection not only allows the government to learn information about more people, but it also enables the government to learn new, previously private facts that it could not have learned simply by collecting the information about a few, specific individuals.

Dated: August 23 , 2013

Edward W. Felten

22

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EXHIBIT 1

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Edward W. Felten
Professor of Computer Science and Public Affairs Director, Center for Information Technology Policy
Princeton University Sherrerd Hall, Room 302
Princeton NJ 08544 (609) 258-5906
(609) 964-1855 fax felten@cs.princeton.edu
Education
Ph.D. in Computer Science and Engineering, University of Washington, 1993. Dissertation title: “Protocol Compilation: High-Performance Communication for Parallel Programs.” Advisors: Edward D. Lazowska and John Zahorjan.
M.S. in Computer Science and Engineering, University of Washington, 1991. B.S. in Physics, with Honors, California Institute of Technology, 1985.
Employment
Professor of Computer Science and Public Affairs, Princeton University, 2006-present.
Chief Technologist, U.S. Federal Trade Commission, 2011-2012.
Professor of Computer Science, Princeton University, 2003-2006. Associate Professor of Computer Science, Princeton University, 1999-2003. Assistant Professor of Computer Science, Princeton University, 1993-99. Senior Computing Analyst, Caltech Concurrent Computing Project, California Institute
of Technology, 1986-1989.
Director, Center for Information Technology Policy, Princeton University, 2005-present.
Elysium Digital LLC and various law firms. Consulting and expert testimony in technology litigation, 1998-present
U.S. Federal Trade Commission: consulting regarding spam policy and investigation, 2004, 2006.
U.S. Dept. of Justice, Antitrust Division: consulting and testimony in Microsoft antitrust case, 1998-2002..
Electronic Frontier Foundation. Consulting in intellectual property / free speech lawsuits, 2001-2010.
Certus Ltd.: consultant in product design and analysis, 2000-2002. Cigital Inc.: Technical Advisory Board member, 2000-2007.

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Cloakware Ltd.: Technical Advisory Board member, 2000-2003. Propel.com: Technical Advisory Board member, 2000-2002. NetCertainty.com: Technical Advisory Board member, 1999-2002. FullComm LLC: Scientific Advisory Board member, 1999-2001. Sun Microsystems: Java Security Advisory Board member, 1997-2001. Finjan Software: Technical Advisory Board member, 1997-2002. International Creative Technologies: consultant in product design and analysis, 1997-98. Bell Communications Research: consultant in computer security research, 1996-97.
Honors and Awards
National Academy of Engineering, 2013. American Academy of Arts and Sciences, 2011 ACM Fellow, 2007. EFF Pioneer Award, 2005. Scientific American Fifty Award, 2003. Alfred P. Sloan Fellowship, 1997. Emerson Electric, E. Lawrence Keyes Faculty Advancement Award, Princeton
University School of Engineering, 1996. NSF National Young Investigator award, 1994. Outstanding Paper award, 1997 Symposium on Operating Systems Principles. Best Paper award, 1995 ACM SIGMETRICS Conference. AT&T Ph.D. Fellowship, 1991-93. Mercury Seven Foundation Fellowship, 1991-93.
Research Interests
Information security. Privacy. Technology law and policy. Internet software. Intellectual property policy. Using technology to improve government. Operating systems. Interaction of security with programming languages and operating systems. Distributed computing. Parallel computing architecture and software.
Professional Service
Professional Societies and Advisory Groups
ACM U.S. Public Policy Committee, Vice Chair, 2008-2010, 2012-present. DARPA Privacy Panel, 2010-2012. Transportation Security Administration, Secure Flight Privacy Working Group, 2005. National Academies study committee on Air Force Information Science and Technology Research, 2004-present. Electronic Frontier Foundation, Advisory Board, 2004-2007. ACM U.S. Public Policy Committee, 2004-present (Executive Committee, 2005-present)

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ACM Advisory Committee on Security and Privacy, 2002-2003. DARPA Information Science and Technology (ISAT) study group, 2002-2004. Co-chair, ISAT study committee on “Reconciling Security with Privacy,” 2001-2002. National Academy study committee on Foundations of Computer Science, 2001-2004.
Program Committees World Wide Web Conference, 2006. USENIX General Conference, 2004. Workshop on Foundations of Computer Security, 2003. ACM Workshop on Digital Rights Management, 2001. ACM Conference on Computer and Communications Security, 2001. ACM Conference on Electronic Commerce, 2001. Workshop on Security and Privacy in Digital Rights Management, 2001. Internet Society Symposium on Network and Distributed System Security, 2001. IEEE Symposium on Security and Privacy, 2000. USENIX Technical Conference, 2000. USENIX Windows Systems Conference, 2000. Internet Society Symposium on Network and Distributed System Security, 2000. IEEE Symposium on Security and Privacy, 1998. ACM Conference on Computer and Communications Security, 1998. USENIX Security Symposium, 1998. USENIX Technical Conference, 1998. Symposium on Operating Systems Design and Implementation, 1996.
Boards Electronic Frontier Foundation, Board of Directors, 2007-2010. DARPA Information Science and Technology study board, 2001-2003. Cigital Inc.: Technical Advisory Board. Sun Microsystems, Java Security Advisory Council. Cloakware Ltd.: Technical Advisory Board. Propel.com: Technical Advisory Board. Finjan Software: Technical Advisory Board. Netcertainty: Technical Advisory Board. FullComm LLC: Scientific Advisory Board.
University and Departmental Service
Committee on Online Courses, 2012-present Director, Center for Information Technology Policy, 2005-present. Committee on the Course of Study, 2009-present. SEAS Strategic Planning, 2004.
Member, Executive Committee Co-Chair, Interactions with Industry area. Co-Chair, Engineering, Policy, and Society area. Faculty Advisory Committee on Policy, 2002-present. Council of the Princeton University Community, 2002-present (Executive Committee) Faculty Advisory Committee on Athletics, 1998-2000.

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Computer Science Academic Advisor, B.S.E. program, class of 1998 (approx. 25 students)
Faculty-Student Committee on Discipline, 1996-98. Faculty-Student Committee on Discipline, Subcommittee on Sexual Assault and
Harrassment, 1996-98.
Students Advised
Ph.D. Advisees: Harlan Yu (Ph.D. 2012). Dissertation: Designing Software to Shape Open Government
Policy. Ariel J. Feldman (Ph.D. 2012). Dissertation: Privacy and Integrity in the Untrusted
Cloud. Joseph A. Calandrino (Ph.D. 2012). Dissertation: Control of Sensitive Data in Systems
with Novel Functionality. William B. Clarkson (Ph.D. 2012). Dissertation: Breaking Assumptions: Distinguishing
Between Seemingly Identical Items Using Cheap Sensors. Technical staff member at Google. Matthias Jacob (Ph.D. 2009). Technical staff member at Nokia. J. Alex Halderman (Ph.D. 2009). Dissertation: Security Failures in Non-traditional Computing Environments. Assistant Professor of Computer Science, University of Michigan. Shirley Gaw (Ph.D. 2009). Dissertation: Ideals and Reality: Adopting Secure Technologies and Developing Secure Habits to Prevent Message Disclosure. Technical staff member at Google. Brent Waters (Ph.D. 2004). Dissertation: Security in a World of Ubiquitous Recording Devices. Assistant Professor of Computer Science, University of Texas. Robert A. Shillingsburg (Ph.D. 2004). Dissertation: Improving Distributed File Systems using a Shared Logical Disk. Retired; previously a technical staff member at Google. Michael Schneider (Ph.D. 2004). Dissertation: Network Defenses against Denial of Service Attacks. Researcher, Supercomputing Research Center, Institute for Defense Analyses. Minwen Ji (Ph.D. 2001). Dissertation: Data Distribution for Dynamic Web Content. Researcher, HP Labs. Dirk Balfanz (Ph.D. 2000). Dissertation: Access Control for Ad Hoc Collaboration. Technical staff member at Google. Dan S. Wallach (Ph.D. 1998). Dissertation: A New Approach to Mobile Code Security. Associate Professor of Computer Science, Rice University.
Significant Advisory Role: Drew Dean (Ph.D. 1998). Advisor: Andrew Appel. Program Manager at DARPA. Stefanos Damianakis (Ph.D. 1998). Advisor: Kai Li. President and CEO, Netrics, Inc.

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Pei Cao (Ph.D. 1996). Advisor: Kai Li. Staff technologist at Facedbook. Lujo Bauer (Ph.D. 2003). Advisor: Andrew Appel. Research Scientist, School of
Computer Science, Carnegie Mellon University.

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Publications
Books and Book Chapters
[1] Enabling Innovation for Civic Engagement. David G. Robinson, Harlan Yu, and Edward W. Felten. In Open Government, Daniel Lathrop and Laurel Ruma, eds., O’Reilly, 2010.
[2] Securing Java: Getting Down to Business with Mobile Code. Gary McGraw and Edward W. Felten. John Wiley and Sons, New York 1999.
[3] Java Security: Web Browsers and Beyond. Drew Dean, Edward W. Felten, Dan S. Wallach, and Dirk Balfanz. In "Internet Besieged: Countering Cyberspace Scofflaws," Dorothy E. Denning and Peter J. Denning, eds. ACM Press, New York, 1997.
[4] Java Security: Hostile Applets, Holes and Antidotes. Gary McGraw and Edward Felten. John Wiley and Sons, New York, 1996
[5] Dynamic Tree Searching. Steve W. Otto and Edward W. Felten. In "High Performance Computing", Gary W. Sabot, ed., Addison Wesley, 1995.
Journal Articles
[6] Government Data and the Invisible Hand. David Robinson, Harlan Yu, William Zeller, and Edward W. Felten. Yale Journal of Law and Technology, vol. 11, 2009.
[7] Mechanisms for Secure Modular Programming in Java. Lujo Bauer, Andrew W. Appel, and Edward W. Felten. Software – Practice and Experience, 33:461-480, 2003.
[8] The Digital Millennium Copyright Act and its Legacy: A View from the Trenches. Illinois Journal of Law, Technology and Policy, Fall 2002.
[9] The Security Architecture Formerly Known as Stack Inspection: A Security Mechanism for Language-based Systems. Dan S. Wallach, Edward W. Felten, and Andrew W. Appel. ACM Transactions on Software Engineering and Methodology, 9:4, October 2000.
[10] Statically Scanning Java Code: Finding Security Vulnerabilities. John Viega, Tom Mutdosch, Gary McGraw, and Edward W. Felten. IEEE Software, 17(5), Sept./Oct. 2000.
[11] Client-Server Computing on the SHRIMP Multicomputer. Stefanos N. Damianakis, Angelos Bilas, Cezary Dubnicki, and Edward W. Felten. IEEE Micro 17(1):8-18, February 1997.
[12] Fast RPC on the SHRIMP Virtual Memory Mapped Network Interface. Angelos Bilas and Edward W. Felten. IEEE Transactions on Parallel and Distributed Computing, February 1997.

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[13] Implementation and Performance of Integrated Application-Controlled File Caching, Prefetching and Disk Scheduling. Pei Cao, Edward W. Felten, Anna R. Karlin, and Kai Li. ACM Transactions on Computer Systems, Nov 1996.
[14] Virtual Memory Mapped Network Interface Designs. Matthias A. Blumrich, Cezary Dubnicki, Edward W. Felten, Kai Li, and Malena Mesarina. IEEE Micro, 15(1):2128, February 1995.
Selected Symposium Articles
[15] Social Networking with Frientegrity: Privacy and Integrity with an Untrusted Provider. Ariel J. Feldman, Aaron Blankstein, Michael J. Freedman, and Edward W. Felten. Proc. USENIX Security Symposium, Aug. 2012.
[16] Bubble Trouble: Off-Line De-Anonymization of Bubble Forms. Joseph A. Calandrino, William Clarkson, and Edward W. Felten. Proc. USENIX Security Symposium, Aug. 2011
[17] You Might Also Like: Privacy Risks of Collaborative Filtering. Joseph A. Calandrino, Ann Kilzer, Arvind Narayanan, Edward W. Felten, and Vitaly Shmatikov. Proc. IEEE Symposium on Security and Privacy, May 2011.
[18] SPORC: Group Collaboration Using Untrusted Cloud Resources. Ariel J. Feldman, William P. Zeller, Michael J. Freedman, and Edward W. Felten. Proc. Symposium on Operating Systems Design and Implementation, 2010.
[19] SVC: Selector-Based View Composition for Web Frameworks. William Zeller and Edward W. Felten. Proc. USENIX Conference on Web Application Development, 2010.
[20] Defeating Vanish with Low-Cost Sybil Attacks Against Large DHTs. Scott Wolchok, Owen S. Hofmann, Nadia Heninger, Edward W. Felten, J. Alex Halderman, Christopher J. Rossbach, Brent Waters, and Emmet Witchel. Proc. 17th Network and Distributed System Security Symposium, 2010.
[21] Can DREs Provide Long-Lasting Security? The Case of Return-Oriented Programming and the AVC Advantage. Stephen Checkoway, Ariel J. Feldman, Brian Kantor, J. Alex Halderman, Edward W. Felten, and Hovav Shacham, Proc. Electronic Voting Technology Workshop, 2009.
[22] Some Consequences of Paper Fingerprinting for Elections. Joseph A. Calandrino, William Clarkson, and Edward W. Felten. Proc. Electronic Voting Technology Workshop, 2009.
[23] Software Support for Software-Independent Auditing. Gabrielle A. Gianelli, Jennifer D. King, Edward W. Felten, and William P. Zeller. Proc. Electronic Voting Technology Workshop, 2009.
[24] Fingerprinting Blank Paper Using Commodity Scanners. William Clarkson, Tim Weyrich, Adam Finkelstein, Nadia Heninger, J. Alex Halderman, and Edward W. Felten. Proc. ACM Symposium on Security and Privacy, May 2009.

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[25] Lest We Remember: Cold Boot Attacks on Encryption Keys. J. Alex Halderman, Seth D. Schoen, Nadia Heninger, William Clarkson, William Paul, Joseph A. Calandrino, Ariel J. Feldman, Jacob Appelbaum, and Edward W. Felten. Proc. Usenix Security Symposium, 2008.
[26] In Defense of Pseudorandom Sample Selection. Joseph A. Calandrino, J. Alex Halderman, and Edward W. Felten. Proc. Electronic Voting Technology Workshop, 2008.
[27] Security Analysis of the Diebold AccuVote-TS Voting Machine. Ariel J. Feldman, J. Alex Halderman, and Edward W. Felten. Proc. Electronic Voting Technology Workshop, 2007.
[28] Machine-Assisted Election Auditing. Joseph A. Calandrino, J. Alex Halderman, and Edward W. Felten. Proc. Electronic Voting Technology Workshop, 2007.
[29] Lessons from the Sony CD DRM Episode. J. Alex Halderman and Edward W. Felten. Proc. Usenix Security Symposium, 2006.
[30] A Convenient Method for Securely Managing Passwords. J. Alex Halderman, Brent R. Waters, and Edward W. Felten. Proc. 14th World Wide Web Conference, 2005.
[31] New Client Puzzle Outsourcing Techniques for DoS Resistance. Brent R. Waters, Ari Juels, J. Alex Halderman, and Edward W. Felten. ACM Conference on Computer and Communications Security. November 2004.
[32] Privacy Management for Portable Recording Devices. J. Alex Halderman, Brent R. Waters, and Edward W. Felten. 3rd Workshop on Privacy in Electronic Society. November 2004.
[33] Receiver Anonymity via Incomparable Public Keys. Brent R. Waters, Edward W. Felten, and Amit Sahai. ACM Conference on Computer and Communications Security. November 2003.
[34] Attacking an Obfuscated Cipher by Injecting Faults. Matthias Jacob, Dan Boneh, and Edward W. Felten. ACM Workshop on Digital Rights Management, November 2002.
[35] A General and Flexible Access-Control System for the Web. Lujo Bauer, Michael A. Schneider, and Edward W. Felten. 11th USENIX Security Symposium, August 2002.
[36] Informed Consent in the Mozilla Browser: Implementing Value-Sensitive Design. Batya Friedman, Daniel C. Howe, and Edward W. Felten. Hawaii International Conference on System Sciences, January 2002. (Best Paper award, organizational systems track.)
[37] Reading Between the Lines: Lessons from the SDMI Challenge. Scott A. Craver, John P. McGregor, Min Wu, Bede Liu, Adam Stubblefield, Ben Swartzlander, Dan S. Wallach, Drew Dean, and Edward W. Felten. USENIX Security Symposium, August 2001.

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[38] Cookies and Web Browser Design: Toward Realizing Informed Consent Online. Lynette I. Millett, Batya Friedman, and Edward W. Felten. Proc. of CHI 2001 Conference on Human Factors in Computing Systems, April 2001.
[39] Timing Attacks on Web Privacy. Edward W. Felten and Michael A. Schneider. Proc. of 7th ACM Conference on Computer and Communications Security, Nov. 2000.
[40] Archipelago: An Island-Based File System for Highly Available and Scalable Internet Services. USENIX Windows Systems Symposium, August 2000.
[41] Proof-Carrying Authentication. Andrew W. Appel and Edward W. Felten. Proc. of 6th ACM Conference on Computer and Communications Security, Nov. 1999.
[42] An Empirical Study of the SHRIMP System. Matthias A. Blumrich, Richard D. Alpert, Yuqun Chen, Douglas W. Clark, Stefanos, N. Damianakis, Cezary Dubnicki, Edward W. Felten, Liviu Iftode, Margaret Martonosi, Robert A. Shillner, and Kai Li. Proc. of 25th International Symposium on Computer Architecture, June 1998.
[43] Performance Measurements for Multithreaded Programs. Minwen Ji, Edward W. Felten, and Kai Li. Proc. of 1998 SIGMETRICS Conference, June 1998.
[44] Understanding Java Stack Inspection. Dan S. Wallach and Edward W. Felten. Proc. of 1998 IEEE Symposium on Security and Privacy, May 1998.
[45] Extensible Security Architectures for Java. Dan S. Wallach, Dirk Balfanz, Drew Dean, and Edward W. Felten. Proc. of 16th ACM Symposium on Operating Systems Principles, Oct. 1997. Outstanding Paper Award.
[46] Web Spoofing: An Internet Con Game. Edward W. Felten, Dirk Balfanz, Drew Dean, and Dan S. Wallach. Proc. of 20th National Information Systems Security Conference, Oct. 1997.
[47] Reducing Waiting Costs in User-Level Communication. Stefanos N. Damianakis, Yuqun Chen, and Edward W. Felten. Proc. of 11th Intl. Parallel Processing Symposium, April 1997.
[48] Stream Sockets on SHRIMP. Stefanos N. Damianakis, Cezary Dubnicki, and Edward W. Felten. Proc. of 1st Intl. Workshop on Communication and Architectural Support for Network-Based Parallel Computing, February 1997. (Proceedings available as Lecture Notes in Computer Science #1199.)
[49] Early Experience with Message-Passing on the SHRIMP Multicomputer. Richard D. Alpert, Angelos Bilas, Matthias A. Blumrich, Douglas W. Clark, Stefanos Damianakis, Cezary Dubnicki, Edward W. Felten, Liviu Iftode, and Kai Li. Proc. of 23rd Intl. Symposium on Computer Architecture, 1996.
[50] A Trace-Driven Comparison of Algorithms for Parallel Prefetching and Caching. Tracy Kimbrel, Andrew Tomkins, R. Hugo Patterson, Brian N. Bershad, Pei Cao, Edward W. Felten, Garth A. Gibson, Anna R. Karlin, and Kai Li. Proc. of 1996 Symposium on Operating Systems Design and Implementation.
[51] Java Security: From HotJava to Netscape and Beyond. Drew Dean, Edward W. Felten, and Dan S. Wallach. Proc. of 1996 IEEE Symposium on Security and Privacy.

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[52] Integrated Parallel Prefetching and Caching. Tracy Kimbrel, Pei Cao, Edward W. Felten, Anna R. Karlin, and Kai Li. Proc. of 1996 SIGMETRICS Conference.
[53] Software Support for Virtual Memory-Mapped Communication. Cezary Dubnicki, Liviu Iftode, Edward W. Felten, and Kai Li. Proc. of Intl. Parallel Processing Symposium, April 1996.
[54] Protected, User-Level DMA for the SHRIMP Network Interface. Matthias A. Blumrich, Cezary Dubnicki, Edward W. Felten, and Kai Li. Proc. of 2nd Intl. Symposium on High-Performance Computer Architecture, Feb. 1996
[55] Improving Release-Consistent Shared Virtual Memory using Automatic Update . Liviu Iftode, Cezary Dubnicki, Edward W. Felten, and Kai Li. Proc. of 2nd Intl. Symposium on High-Performance Computer Architecture, Feb. 1996
[56] Synchronization for a Multi-Port Frame Buffer on a Mesh-Connected Multicomputer. Bin Wei, Gordon Stoll, Douglas W. Clark, Edward W. Felten, and Kai Li. Parallel Rendering Symposium, Oct. 1995.
[57] A Study of Integrated Prefetching and Caching Strategies. Pei Cao, Edward W. Felten, Anna R. Karlin, and Kai Li. Proc. of 1995 ACM SIGMETRICS Conference. Best Paper award.
[58] Evaluating Multi-Port Frame Buffer Designs for a Mesh-Connected Multicomputer. Gordon Stoll, Bin Wei, Douglas W. Clark, Edward W. Felten, Kai Li, and Patrick Hanrahan. Proc. of 22nd Intl. Symposium on Computer Architecture.
[59] Implementation and Performance of Application-Controlled File Caching. Pei Cao, Edward W. Felten, and Kai Li. Proc. of 1st Symposium on Operating Systems Design and Implementation, pages 165-178, November 1994.
[60] Application-Controlled File Caching Policies. Pei Cao, Edward W. Felten, and Kai Li. Proc. of USENIX Summer 1994 Technical Conference, pages 171-182, 1994.
[61] Virtual Memory Mapped Network Interface for the SHRIMP Multicomputer. Matthias A. Blumrich, Kai Li, Richard D. Alpert, Cezary Dubnicki, Edward W. Felten, and Jonathan S. Sandberg. Proc. of Intl. Symposium on Computer Architecture, 1994.
[62] Performance Issues in Non-Blocking Synchronization on Shared-Memory Multiprocessors. Juan Alemany and Edward W. Felten. Proceedings of Symposium on Principles of Distributed Computing, 1992.
[63] Improving the Performance of Message-Passing Applications by Multithreading. Edward W. Felten and Dylan McNamee. Proceedings of Scalable High-Performance Computing Conference (SHPCC), 1992.
[64] A Highly Parallel Chess Program. Edward W. Felten and Steve W. Otto. 1988 Conference on Fifth Generation Computer Systems.
Selected Other Publications

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[65] Strangers in a Strange Land. Review of Blown to Bits: Your Life, Liberty, and Happiness after the Digital Explosion, by Abelson, Ledeen, and Lewis. American Scientist, 97:4. July/August 2009.
[66] Lest We Remember: Cold-Boot Attacks on Encryption Keys. J. Alex Halderman, Seth D. Schoen, Nadia Heninger, William Clarkson, William Paul, Joseph A. Calandrino, Ariel J. Feldman, Jacob Appelbaum, and Edward W. Felten. Communications of the ACM, 52(5):91-98. May 2009.
[67] Security Analysis of the Diebold AccuVote-TS Voting Machine. Ariel J. Feldman, J. Alex Halderman, and Edward W. Felten. Sept. 2006.
[68] Digital Rights Management, Spyware, and Security. Edward W. Felten and J. Alex Halderman, IEEE Security and Privacy, Jan./Feb. 2006.
[69] Inside RISKS: DRM and Public Policy. Edward W. Felten. Communications of the ACM, 48:7, July 2005.
[70] Understanding Trusted Computing: Will its Benefits Outweigh its Drawbacks? Edward W. Felten. IEEE Security and Privacy, May 2003.
[71] A Skeptical View of DRM and Fair Use. Edward W. Felten. Communications of the ACM 46(4):56-61, April 2003.
[72] Consumer Privacy and Government Technology Mandates in the Digital Media Marketplace. Testimony before U.S. Senate Commerce Committee. September 2003.
[73] Secure, Private Proofs of Location. Brent R. Waters and Edward W. Felten. Submitted for publication, 2003.
[74] An Efficient Heuristic for Defense Against Distributed Denial of Service Attacks using Route-Based Distributed Packet Filtering. Michael A. Schneider and Edward W. Felten. Submitted for publication, 2003.
[75] Written testimony to House Commerce Committee, Subcommittee on Courts, the Internet, and Intellectual Property, oversight hearing on “Piracy of Intellectual Property on Peer to Peer Networks.” September 2002.
[76] Written testimony to Senate Judiciary Committee hearings on “Competition, Innovation, and Public Policy in the Digital Age: Is the Marketplace Working to Protect Digital Creativity?” March 2002.
[77] Informed Consent Online: A Conceptual Model and Design Principles. Batya Friedman, Edward W. Felten, and Lynette I. Millett. Technical Report 2000-12-2, Dept. of Computer Science and Engineering, University of Washington, Dec. 2000.
[78] Mechanisms for Secure Modular Programming in Java. Lujo Bauer, Andrew W. Appel, and Edward W. Felten. Technical Report CS-TR-603-99, Department of Computer Science, Princeton University, July 1999.
[79] A Java Filter. Dirk Balfanz and Edward W. Felten. Technical Report 567-97, Dept. of Computer Science, Princeton University, October 1997.

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[80] Inside RISKS: Webware Security. Edward W. Felten. Communications of the ACM, 40(4):130, 1997.
[81] Simplifying Distributed File Systems Using a Shared Logical Disk.Robert A. Shillner and Edward W. Felten. Princeton University technical report TR-524-96.
[82] Contention and Queueing in an Experimental Multicomputer: Analytical and Simulation-based Results. Wenjia Fang, Edward W. Felten, and Margaret Martonosi. Princeton University technical report TR-508-96.
[83] Design and Implementation of NX Message Passing Using SHRIMP Virtual Memory Mapped Communication. Richard D. Alpert, Cezary Dubnicki, Edward W. Felten, and Kai Li. Princeton University technical report TR-507-96.
[84] Protocol Compilation: High-Performance Communication for Parallel Programs. Edward W. Felten. Ph.D. dissertation, Dept. of Computer Science and Engineering, University of Washington, August 1993.
[85] Building Counting Networks from Larger Balancers. Edward W. Felten, Anthony LaMarca, and Richard Ladner. Univ. of Washington technical report UW-CSE-9304-09.
[86] The Case for Application-Specific Communication Protocols. Edward W. Felten. Univ. of Washington technical report TR-92-03-11.
[87] A Centralized Token-Based Algorithm for Distributed Mutual Exclusion. Edward W. Felten and Michael Rabinovich. Univ. of Washington technical report TR-92-02-02.
[88] Issues in the Implementation of a Remote Memory Paging System. Edward W. Felten and John Zahorjan. Univ. of Washington technical report TR-91-03-09.

 
 Case 1:13-cv-03994-WHP Document 28 Filed 08/26/13 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

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

Case No. 13-cv-03994 (WHP) ECF Case

DECLARATION OF MICHAEL GERMAN I, Michael German, hereby declare and state as follows: 1. I am a resident of the Commonwealth of Virginia over the age of 18 and am principally employed in the District of Columbia. I have personal knowledge of the facts stated in this declaration. 2. I am a Senior Policy Counsel on National Security, Immigration, and Privacy at the American Civil Liberties Union (“ACLU”), where I have worked since 2006. In my work at the ACLU, I am an advocate on issues related to national security and government transparency,
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and I am the ACLU’s principal advocate on issues related to “whistleblowers,” or individuals inside of government who wish to expose government wrongdoing (including illegality, waste, fraud, or abuse) through appropriate and legal channels. I have expertise in this area in part because I am a former federal whistleblower myself.
3. The ACLU is dedicated to defending the rights guaranteed in the Constitution and Bill of Rights, including the free-speech rights of government employees and the public’s right to government information produced for public benefit and at public expense. Often, government employees and contractors are the only people in positions to disclose government waste, fraud, abuse, and illegality, and they therefore must be empowered to responsibly report these matters to the appropriate oversight officials within the executive branch—as well as to Congress, the courts and the public—without fear of reprisal. This is particularly true in the national-security context, where inappropriate or excessive use of classification can be used to hide government activities from congressional, judicial, and public oversight, and where the laws protecting whistleblowers from reprisal are weakest.
4. The ACLU lobbies in Congress and directly to executive-branch agencies to strengthen the legal protections for whistleblowers, and to provide effective due-process mechanisms for adjudicating government employees’ and contractors’ complaints of reprisal for having reporting waste, fraud, abuse, and illegality. The ACLU supported the Whistleblower Protections Enhancement Act of 2012, and encouraged the executive branch to promulgate Presidential Police Directive 19, which is designed to expand protections for employees of the intelligence agencies.
5. Because the ACLU is a prominent organization working on these issues, whistleblowers often contact the ACLU directly, seeking advice, representation, or both.
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Because of my background as a whistleblower, many whistleblowers contact me directly to seek my guidance. In these cases, I assist prospective whistleblowers in obtaining legal advice from ACLU litigators or from public-interest groups outside the ACLU, such as the National Whistleblower Center, the Project on Government Oversight, the James Madison Project, and the Government Accountability Project, among others. I may also introduce them to congressional staff, or give them advice on which committees or members of Congress work on the issues they are concerned about or oversee the agencies in which they work. Many times I ask them if they are willing to lose their jobs in the process of bringing a problem to light. If they say “no,” I often advise them that the legal protections existing today are insufficient to protect them from retaliation and they should carefully consider their decision. In some cases they do not report the misconduct as a result.
6. I sought assistance from the ACLU when I left the FBI and reported problems in the FBI counterterrorism program to Congress and the public. The ACLU also represented former FBI linguist Sibel Edmunds, who was improperly fired by the FBI after reporting problems in the agency’s translation program. The ACLU of Southern California represented Federal Air Marshal Frank Terreri, who was suspended after raising concerns about policy changes that made it easier to identify Federal Air Marshals while on duty protecting air traffic. The ACLU has also assisted many other whistleblowers who have never been publicly identified.
PERSONAL WHISTLEBLOWING HISTORY 7. In June 1988, after graduating from Northwestern University Law School, I entered on duty as a Special Agent at the Federal Bureau of Investigation (“FBI”). During my career at the FBI, I had a clean disciplinary record and a consistent record of superior performance appraisals, and I received a Medal of Valor from the Los Angeles Federal Bar
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Association, and a First African Methodist Episcopal Church FAME Award. In addition, through my work as an undercover agent, I successfully infiltrated domestic terrorist organizations, recovered dozens of illegal firearms and explosive devices, successfully investigated unsolved bombings, prevented acts of terrorism, and helped win criminal conviction against terrorists.
8. In 2002, I made a protected disclosure through my chain of command about management failures and violations of law in an FBI counterterrorism investigation. In particular, I learned in August 2002 that part of a meeting between subjects of an FBI investigation in which I was involved had been illegally recorded, in violation of Title III wiretap laws, by an FBI cooperating witness. On September 10, 2002, I sent a letter documenting the illegality of which I was aware up my chain of command. Almost immediately, I suffered retaliation from superior officers; later, I learned that retaliatory investigations, which were shown to be meritless, had been initiated against me because of the misconduct I reported. In November 2002, I reported the entirety of the matter to the Office of the Inspector General (“OIG”) in the Department of Justice (“DOJ”). In 2004, I resigned from the FBI as a result of the retaliation I suffered after reporting the misconduct.
9. After two years of attempting to have the misconduct and deficiencies that I witnessed addressed within the FBI and DOJ, I chose to report the matter to Congress. As a result of the efforts of Senators Chuck Grassley, Arlen Specter, and Patrick Leahy, among others, the OIG ultimately released a report documenting the investigation precipitated by the illegality I reported within the FBI. The report confirms many of the allegations in my original complaint. In 2008, I testified before the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security about my whistleblowing experience within the FBI.
EXPERIENCE WITH WHISTLEBLOWERS AS ACLU POLICY COUNSEL
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10. Since joining the ACLU in 2006, I have specialized in advocacy related to federal law enforcement. The primary focus of my work is the role of whistleblowers in exposing government wrongdoing, waste, fraud, and abuse. I estimate that 15 to 25 percent of my professional time is spent on this focus.
11. According to a May 2009 report by the DOJ Office of the Inspector General, Review of the Federal Bureau of Investigation’s Disciplinary System, a survey of FBI employees indicated that 18 percent of respondents said that they “never” reported incidents of possible misconduct of which they had been made aware. Additionally, 28 percent of respondents in nonsupervisory positions (GS-13 grade level or below) indicated that they “never” reported incidents of possible misconduct of which they had been made aware. The report indicated that the second-most-common reason for FBI employees failing to report misconduct incidents was fear of professional retaliation.
12. In my professional capacity, I regularly receive calls from government employees seeking advice on how to “blow the whistle” appropriately, safely, and effectively within different government agencies. In general, my relationships with these individuals are not confined to a single contact, but consist of continuing and ongoing discussions about various attempts to report misconduct and avoid retaliation that may last years at a time. The potential whistleblowers typically do not know their rights under the law, or the proper methods to report waste, fraud, abuse, or illegality within their agencies. They often do not know the responsibilities of the Inspectors General of their agencies, or how to report a complaint to those officials. Finally, they often do not know how they may bring the matter to the attention of members of Congress, and need assistance in identifying the proper committee or member to which they can report their concerns. Even after reporting through these avenues, however,
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Case 1:13-cv-03994-WHP Document 28 Filed 08/26/13 Page 6 of 12
whistleblowers often need continuing assistance if, for example, the Inspectors General or congressional staff do not properly follow up to investigate the matters. Additionally, after initial reporting, whistleblowers often begin to suffer retaliation as a result of their protected disclosures. I often work with congressional staff and with staff of the Inspector General offices to address the concerns presented by federal whistleblowing.
13. In addition, sometimes individuals within the government contact me about government misconduct but cannot explain themselves fully because doing so would reveal classified information. These individuals usually are seeking safe avenues for communicating and reporting information that may be classified without committing a crime. In my experience, most of these individuals contact me because they are unaware of avenues within the government for reporting misconduct related to classified matters without exposure to adverse retaliation. In my professional experience, less than ten percent of federal-government whistleblowing involves classified information.
14. In most cases, my role in advising potential whistleblowers is to provide guidance about the available avenues for reporting government misconduct, waste, fraud, or abuse, based on my experience and expertise, as well as to assist individuals in retaining legal counsel should the individual desire it.
15. In my experience, government employees who have witnessed possible incidents of misconduct fear that they will suffer professional retaliation if they report those incidents through administrative channels.
16. In the context of whistleblowing, I am aware of various forms of professional retaliation that have occurred in the past and that commonly dissuade individuals from coming forward with information about possible government misconduct, waste, fraud, or abuse. Such
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retaliation includes, but is not limited to: harassment; retaliatory investigations; internal disciplinary actions; adverse change of job duties or responsibilities; physical-location transfers; termination; and filing of criminal charges.
17. Additionally, individuals who hold security clearances from the federal government risk losing their clearance status by reporting misconduct. I am aware of numerous cases in which whistleblowers lost security clearances after reporting incidents of misconduct, or had their security clearances threatened. Employees and contractors of the FBI and intelligence agencies have little ability to defend themselves against security-clearance retaliation, and in most cases cannot maintain employment with these agencies without a clearance.
18. In my experience, one of the most dissuasive acts of professional retaliation that potential whistleblowers fear is the threat of administrative investigation. I am aware of numerous instances in which government employees chose not to report misconduct because they feared being subjected to investigations unrelated to the subject of their potential reporting. I have often heard potential whistleblowers express the concern that “no one is administratively pure,” which means that no federal employee believes him- or herself to be immune to retaliatory actions if he or she were to report misconduct.
19. Typically, individuals who contact me seeking information about how to safely and legally report government misconduct are fearful that their efforts will be exposed before they decide on a course of action, and are afraid of retaliation that could damage or end their careers. Often, potential whistleblowers are perplexed and frustrated that attempts to report incidents internally are met with resistance and inaction. Many indicate that they believe there are few (and sometimes no) avenues for open communication, advice, or resources about how to
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report government misconduct without exposing themselves to adverse employment consequences.
20. When contacted by individuals interested in reporting government misconduct through official channels, I regularly inform them that, based on my personal and professional experiences, simply reporting misconduct commonly leads to dismissal and other serious professional retaliation, and that they must be prepared for those potential consequences.
21. In my experience, most government whistleblowers are dedicated federal employees who have rarely found themselves in a position to challenge the government previously. Not uncommonly, individuals who contact me about potential avenues for whistleblowing are contacting the ACLU for the first time. Many times, such individuals have said to me that contacting me and my employer were actions of “last resort,” because they feel that they have nowhere else to turn for guidance.
22. Many of the whistleblowers who contact me expect that their initial report of waste, fraud, abuse, or illegality will be appreciated and addressed appropriately by agency management. They are often shocked to find that they have become targets of retaliation instead, and need to report both the original complaint and a complaint of retaliation outside their agency to an Inspector General to seek protection. Unfortunately, going outside the agencies often intensifies the retaliation, and the Inspectors General are unable, and sometimes unwilling, to protect whistleblowers or properly investigate their allegations. This stage of the whistleblower process is often the most difficult for the individuals that I advise. Whistleblowers are mostly dedicated public servants who expect that the agencies they work for share their interest in serving the public welfare with honesty and integrity, and they are deeply disappointed when they find otherwise. Whistleblowers are also often ostracized by their peers, who fear that
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assisting, sympathizing or even just associating with whistleblowers will harm their own careers. Whistleblowers tend to expect that their members of Congress will be interested in their stories, but often they cannot even get congressional staff to meet with them or respond to their emails. The few that do ultimately receive some public recognition for their efforts have likely already lost their jobs or their status within the agencies and, if they are members of the intelligence community, are treated as persona non grata, making them unemployable even by private contractors. Whistleblowers who choose to fight retaliation are often forced to endure years and years of litigation, at great personal expense and with little likelihood of success. These are dedicated public servants who are willing to put themselves at great risk to ensure all government agencies are held to account, but this dedication to the public interest often takes an incredible personal toll.
23. Almost universally, potential whistleblowers seeking advice from me are seeking confidentiality as to both the fact and substance of our communications. Often, individuals will contact me using personal phone numbers or email addresses in order to avoid revealing the fact of conversations with me to colleagues or superior officials within the government. Most potential whistleblowers have already raised their concerns internally, and thus understand that any public advocacy based on their accounts will be easily identified with them and could lead to adverse professional consequences.
24. My role as an advocate on whistleblower issues depends on the use of the telephone to communicate with potential whistleblowers, as opposed to other available mediums, such as email. Many of the people considering whistleblowing are extremely conflicted about the course of action to take because of their desire to serve their country by ensuring that the law is upheld, combined with their personal fears over the consequences of reporting actions that they
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believe to be wrong. These conversations are emotional and difficult, and their inherent intimacy often makes them ill-suited to be conducted through electronic means. In addition, because of the sensitivity of the subject matter, most individuals who contact me about becoming a whistleblower seek to avoid creating an electronic record of their concerns and conflicts before they make the ultimate decision to come forward to report what they know.
25. In my opinion, many individuals fear that they will be discovered reaching outside a government agency to seek advice about exposing wrongdoing. These individuals are extraordinarily sensitive to the risks involved in reporting misconduct and the possibility of retaliation should they be identified as whistleblowers. As a result, I estimate that the vast majority of federal-government wrongdoing is not reported, and that most federal employees who have witnessed wrongdoing choose to “suffer in silence” as a result.
JUDGMENTS ABOUT THE EFFECT OF SECTION 215 CALL TRACKING ON THE WILLINGNESS OF FEDERAL WHISTLEBLOWERS TO CONTACT THE ACLU 26. Through news reporting and professional discussions, I am familiar with the U.S.
government’s bulk collection of telephony metadata under Section 215 of the Patriot Act directed at customers of Verizon Business Network Services (“Verizon”).
27. I have personally reviewed a contract between the ACLU and Verizon for telephone services. From my review, I understand that Verizon is the phone-service provider for my Washington, D.C. office phone and for my cellular telephone, which is provided by my employer, the ACLU.
28. Knowledge of the frequency, duration, and timing of calls from government employees to me, or vice versa, would reveal the substance of our relationship because it would indicate that they were considering reporting government misconduct and seeking advice from me and my colleagues about how to legally go about that course of action. A small pattern of
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calls between me and a federal employee would lead to a reasonable inference that the individual had knowledge of government wrongdoing, irrespective of whether the content of those calls was known.
29. Because of the professional sensitivity and risks involved for federal employees who are considering becoming whistleblowers, it is my judgment that the Section 215 calltracking program will cause some individuals to remain silent rather than contact me or the ACLU in order to discuss their options in reporting violations. Knowledge that all of their communications with me or the ACLU are being logged by the government would present a substantial reason for individuals who are undecided about reporting violations but fearful of retaliation from reaching out for advice.
30. As a result, some individuals may decide not to seek advice from me or the ACLU about how to safely and legally report government wrongdoing, and some instances of government wrongdoing will likely go unreported.
31. Without direct contact with whistleblowers, my ability to advocate for greater protections for those who report waste, fraud, abuse, and illegality would be severely hampered. In order to design reforms that protect those conscientious employees and contractor who choose to report government wrongdoing, knowledge of how the system works, or doesn’t work, is critical. Since the FBI and intelligence agencies are exempted from the Whistleblower Protection Act, internal executive-branch procedures are the only protection for employees of those agencies. As the agency mechanisms to protect whistleblowers are in a constant state of adjustment, being able to determine which practices provide relief and which create a false promise of security only comes from observing how they work for actual whistleblowers. My work for the ACLU in other national-security fields, including intelligence oversight and
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classification reform, would also be severely damaged by whistleblowers' reluctance to contact

me. Finally, that reluctance would hamper the ACLU's pursuit of its core missions of protecting

individual victims of government misconduct and ensuring that the public receives information

about that misconduct from those who have witnessed it.

32. In sum, the Section 215 call-tracking program compromises my ability to gather

information and give advice that is relevant and necessary to my role and the ACLU's mission of

assisting whistleblowers in safely and legally reporting government misconduct, waste, fraud, or

abuse.

* , *

33. Pursuant to 28 U.S.C. § 1746, I hereby declare and state under the penalty of perjury that the foregoing is true and correct.

Date: August 26, 2013

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 Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 1 of 52

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION; NEW YORK CIVIL LIBERTIES UNION; and NEW YORK CIVIL LIBERTIES UNION FOUNDATION,
Plaintiffs,
v.
JAMES R. CLAPPER, in his official capacity as Director of National Intelligence; KEITH B. ALEXANDER, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service; CHARLES T. HAGEL, in his official capacity as Secretary of Defense; ERIC H. HOLDER, in his official capacity as Attorney General of the United States; and ROBERT S. MUELLER III, in his official capacity as Director of the Federal Bureau of Investigation,
Defendants.

13 Civ. 3994 (WHP) ECF Case

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS THE COMPLAINT

STUART F. DELERY Assistant Attorney General
JOSEPH H. HUNT Director
ANTHONY J. COPPOLINO Deputy Director
JAMES J. GILLIGAN Special Litigation Counsel
MARCIA BERMAN Senior Trial Counsel
BRYAN DEARINGER Trial Attorney U.S. Department of Justice
Washington, D.C.

PREET BHARARA United States Attorney for the Southern District of New York
DAVID S. JONES TARA M. La MORTE JOHN D. CLOPPER CHRISTOPHER HARWOOD Assistant United States Attorneys 86 Chambers Street, 3rd Floor Tel. No. (212) 637-2739 (Jones) Fax No. (212) 637-2730 david.jones6@usdoj.gov tara.lamorte2@usdoj.gov john.clopper@usdoj.gov christopher.harwood@usdoj.gov

Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 2 of 52

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT……………………………………………………………….. 1

STATEMENT OF FACTS……………………………………………………………………… 2

A. Statutory Background.......................................................................................... 2

B. The Collection of Telephony Metadata Records Authorized by the FISC…….. 4

C. Plaintiffs’ Allegations…………………………………………………………… 7

ARGUMENT………………………………………………………………………………..….. 9

POINT I:

THE COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFFS HAVE NOT ESTABLISHED THEIR STANDING .…………………………… 9

A. The Requirements of Article III Standing ..…………………………………..…. 9

B. Plaintiffs Allege Injuries That Are Speculative and Conjectural, Not Certainly Impending……………………………………………………………. 11

POINT II: CONGRESS IMPLIEDLY PRECLUDED JUDICIAL REVIEW OF PLAINTIFFS’ STATUTORY CLAIM .………………………………………. 14

POINT III: THE GOVERNMENT’S BULK COLLECTION OF TELEPHONY METADATA IS AUTHORIZED UNDER SECTION 215…………………… 19

A. The Telephony Metadata Collected Under the FISC’s Orders Are “Relevant” to Authorized National Security Investigations ..…………………. 20

1. Congress Intended Section 215 To Incorporate a Broad Concept of Relevance, Drawn from the Legal Meaning Applied in Grand Jury, Civil, and Administrative Proceedings, That Also Takes Into Account the Special Characteristics of the Terrorism Investigations to Which It Applies……………………… 21

2. Congress Has Legislatively Ratified the Construction of Section 215 as Allowing for the Bulk Collection of Telephony Metadata Records………………………………………….. 26

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3. Telephony Metadata Are “Relevant” Within the Meaning of Section 215 Because Bulk Collection of the Data Enhances the Government’s Ability To Detect Terrorist Operatives and Prevent Terrorist Attacks………………….… 28

B. Nothing in the Text of Section 215 Prohibits the Collection of Records “as They Are Generated”………………………………………….. 29

POINT IV:

THE GOVERNMENT’S COLLECTION OF TELEPHONY METADATA DOES NOT VIOLATE PLAINTIFFS’ FOURTH AMENDMENT RIGHTS .…………………………………………………….. 31

A. Plaintiffs Have No Fourth Amendment Privacy Interest in Telephony Metadata……………………………………………………………………….. 31

B. The Government’s Acquisition of Metadata Is Reasonable…………………… 35

POINT V:

PLAINTIFFS HAVE NOT PLAUSIBLY ALLEGED THAT THE GOVERNMENT’S COLLECTION OF TELEPHONY METADATA VIOLATES THE FIRST AMENDMENT ……………………………………. 37

A. Plaintiffs’ Failure To Allege An Actionable Fourth Amendment Claim Is Also Fatal To Their First Amendment Claim ................................................ 37

B. Plaintiffs Make No Allegations That the Government’s Collection of Telephony Metadata Is Intended to Curtail Protected Expressive or Associational Activity……………………………………………………….… 39

CONCLUSION……………………………………………………………………………….. 40

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TABLE OF AUTHORITIES

Cases

Page(s)

ACLU Found. of S. California v. Barr, 952 F.2d 457 (D.C. Cir. 1991) ................................................................................................ 38

Am. Civil Liberties Union v. Nat'l Sec. Agency, 493 F.3d 644 (6th Cir. 2007) .................................................................................................. 38

Ashcroft v. Iqbal,, 556U.S. 662 (2009).......................................................................................................... passim

Atkins v. Parker, 472 U.S. 115 (1985)................................................................................................................ 28

Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822 (2002)................................................................................................................ 36

Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984) …………………….........……………. 16, 19

Block v. N. Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273 (1983)................................................................................................................ 16

C.I.A. v. Sims, 471 U.S. 159 (1985)................................................................................................................ 25

Carrillo Huettel, LLP v. U.S. S.E.C., 2011 WL 601369 (S.D. Cal. Feb. 11, 2011) .......................................................................... 22

Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002).................................................................................................. 5, 6

Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013) ................................................................................................... passim

Conopco, Inc. v. Roll Int'l, 231 F.3d 82 (2d Cir. 2000) ..................................................................................................... 5

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .......................................................................................................... 9, 10

Dew v. United States, 192 F.3d 366 (2d Cir. 1999) .................................................................................................. 19

E.E.O.C. v. Shell Oil Co., 466 U.S. 54 (1984) .......................................................................................................... 21, 28

iii

Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 5 of 52
F.A.A. v. Cooper, 132 S. Ct. 1441 (2012) .......................................................................................................... 15
F.T.C. v. Invention Submission Corp., 965 F.2d 1086 (D.C. Cir. 1992) ............................................................................................ 22
FDIC v. Meyer, 510 U.S. 471 (1994) .............................................................................................................. 15
Forest Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009) ...............................................................................................................28
Gordon v. Warren Consol. Bd. of Educ., 706 F.2d 778 (6th Cir. 1983) ................................................................................................. 38
Goshawk Dedicated Ltd. v. Am. Viatical Servs., LLC, 2007 WL 3492762 (N.D. Ga. Nov. 5, 2007) .......................................................................... 22
Guest v. Leis, 255 F.3d 325 (6th Cir. 2001) ...................................................................................................33
Haig v. Agee, 453 U.S. 280 (1981).......................................................................................................... 28, 36
In re Adelphia Commc'ns Corp., 338 B.R. 546 (Bankr. S.D.N.Y. 2005) .................................................................................... 22
In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d) 830 F. Supp. 2d 114 (E.D. Va. 2011) ............................................................................... 19, 33
In re Application of the United States, 632 F. Supp. 2d 202 (E.D.N.Y. 2008) .................................................................................... 30
In re Application of U.S. for an Order for Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F. Supp. 2d 448 (S.D.N.Y. 2006) ........................................ 30
In re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 551 F.3d 1004 (Foreign Int. Surv. Ct. Rev. 2008) .................................................................. 36
In re Grand Jury Proceedings, 616 F.3d 1186 (10th Cir. 2010) .............................................................................................. 21
In re Grand Jury Proceedings: Subpoenas Duces Tecum, 827 F.2d 301 (8th Cir. 1987) .............................................................................................22, 35
In re Motion for Release of Court Records, 526 F. Supp. 2d 484 (Foreign Intel. Surv. Ct. 2007) ................................................................ 3
iv

Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 6 of 52
In re Subpoena Duces Tecum, 228 F.3d 341 (4th Cir. 2000) .................................................................................................. 22
Jabara v. Kelley, 476 F. Supp. 561 (E.D. Mich. 1979)....................................................................................... 38
Jewel v. Nat'l Sec. Agency, 2013 WL 3829405 (N.D. Cal. July 23, 2013)..........................................................................17
Katz v. United States, 389 U.S. 347 (1967)................................................................................................................ 32
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111(2d Cir. 2010)....................................................................................................... 7
Laird v. Tatum, 408 U.S. 1 (1972).............................................................................................................. 14, 39
Langford v. Chrysler Motors Corp., 513 F.2d 1121 (2d Cir. 1975).................................................................................................. 19
Lorillard v. Pons, 434 U.S. 575 (U.S. 1978)........................................................................................................ 28
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).......................................................................................................... 10, 14
Maryland v. King, 133 S. Ct. 1958 (2013) ...................................................................................................... 35, 36
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012) ....................................................................................................... 15-16
McLean v. United States, 566 F.3d 391 (4th Cir. 2009) .................................................................................................. 23
Medtronic Sofamor Danek, Inc. v. Michelson, 229 F.R.D. 550 (W.D. Tenn. 2003) ........................................................................................ 22
Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)................................................................................................................ 39
Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990).......................................................................................................... 36, 37
Minnesota v. Carter, 525 U.S. 83 (1998) ................................................................................................................ 35
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Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 7 of 52
N.L.R.B. v. Am. Med. Response, Inc., 438 F.3d 188 (2d Cir. 2006).............................................................................................. 21, 23
N.L.R.B. v. Amax Coal Co., 453 U.S. 322 (1981).................................................................................................................22
Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).......................................................................................................... 25, 29
Oneida Indian Nation of New York v. State of N.Y., 691 F.2d 1070 (2d Cir. 1982).................................................................................................. 27
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978).................................................................................................................21
PBGC. ex rel. St. Vincent Catholic Med. Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705 (2d Cir. 2013) ................................................................................. 9
Port Washington Teachers' Ass'n v. Bd. of Educ. of Port Washington Union free Sch. Dist., 478 F.3d 494 (2d Cir. 2007).................................................................................................... 14
Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008) .................................................................................................. 33
Rakas v. Illinois, 439 U.S. 128 (1978)................................................................................................................ 35
Redd v. City of Enter., 140 F.3d 1378 (11th Cir. 1998) .............................................................................................. 38
Reporters Comm. for Freedom of Press v. Am. Tel. & Tel. Co., 593 F.2d 1030 (D.C. Cir. 1978) .................................................................................. 38, 39, 40
S.E.C. v. Jerry T. O'Brien, Inc., 467 U.S. 735 (1984)................................................................................................................ 34
Smith v. Bowersox, 159 F.3d 345 (8th Cir. 1998) .................................................................................................. 23
Smith v. Maryland, 442 U.S. 735 (1979)......................................................................................................... passim
Socialist Workers Party v. Attorney Gen. of U.S., 510 F.2d 253 (2d Cir. 1974).................................................................................................... 39
Steagald v. United States, 451 U.S. 204 (1981)................................................................................................................ 35
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Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998).................................................................................................................. 10
United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989) .................................................................................................. 39
United States v. Anderson-Bagshaw, 2012 WL 774964 (N.D. Ohio Mar. 8, 2012) ...........................................................................34
United States v. Forrester, 512 F.3d 500 (9th Cir. 2008) .................................................................................................. 33
United States v. Gering, 716 F.2d 615 (9th Cir. 1983) ...................................................................................................38
United States v. Hill, 459 F.3d 966 (9th Cir. 2006) .................................................................................................. 22
United States v. Jones, 132 S. Ct. 945 (2012) ........................................................................................................ 32, 34
United States v. Kennedy, 81 F. Supp. 2d 1103 (D. Kan. 2000) ....................................................................................... 33
United States v. Martinez-Fuerte, 428 U.S. 543 (1976).......................................................................................................... 36, 37
United States v. Mayer, 503 F.3d 740 (9th Cir. 2007) .................................................................................................. 38
United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010) ................................................................................................ 34
United States v. Merrick Sponsor Corp., 421 F.2d 1076 (2d Cir. 1970)................................................................................................... 5
United States. v. Miller, 425 U.S. 435 (1976) ……………………………………………………………. 18-19, 33, 34
United States v. Mitchell, 445 U.S. 535 (1980) ……………………………………………………………………….. 15
United States v. R. Enterprises, Inc., 498 U.S. 292 (1991).......................................................................................................... 21, 23
United States v. Ramsey, 431 U.S. 606 (1977).................................................................................................................38
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United States v. Rigmaiden, 2013 WL 1932800 (D. Ariz. May 8, 2013) ........................................................................... 35
United States v. Shabani, 513 U.S. 10 (1994).................................................................................................................. 23
United States v. Smith, 426 F.3d 567 (2d Cir. 2005) .................................................................................................. 36
United States v. Upham, 168 F.3d 532 (1st Cir. 1999) ................................................................................................... 22
Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982).................................................................................................................. 9
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995).......................................................................................................... 35, 36
Whitmore v. Arkansas, 495 U.S. 149 (1990)................................................................................................................ 10
Zurcher v. Stanford Daily, 436 U.S. 547 (1978).......................................................................................................... 38, 39
STATUTES 5 U.S.C. § 701......................................................................................................................... 15, 18 5 U.S.C. § 702........................................................................................................................... 8, 15 18 U.S.C. § 2703........................................................................................................................... 30 18 U.S.C. § 2712...................................................................................................................... 16,17 50 U.S.C. § 1801........................................................................................................................... 18 50 U.S.C. § 1803..........................................................................................................................3, 4 50 U.S.C. § 1806..................................................................................................................... 17, 18 50 U.S.C. § 1821 …………………………………………………………………………….…. 18 50 U.S.C. § 1825 …………………………………………………………………………… 17, 18 50 U.S.C. § 1841 …………………………………………………………………………..…… 18 50 U.S.C. § 1845 …………………………………………………………………………… 17, 18
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50 U.S.C. § 1861.................................................................................................................... passim 50 U.S.C. § 1862....................................................................................................................... 7, 26 50 U.S.C. § 1871....................................................................................................................... 7, 27 50 U.S.C.. § 1881a ........................................................................................................................ 12
RULES AND REGULATIONS 47 C.F.R. § 42.6 ............................................................................................................................ 30 FEDERAL RULES OF CIVIL PROCEDURE Fed. R. Civ. P. 12(b)(6)................................................................................................................... 7 Fed. R. Civ. P. 26(b)(1)................................................................................................................. 24
FEDERAL RULES OF CRIMINAL PROCEDURE Fed. R. Crim. P. 41(e)(2)(B) ......................................................................................................... 22
LEGISLATIVE MATERIAL S. 2369, 109th Cong., 2d Sess. (2006) ..........................................................................................24 S. Rep. No. 109-85 (2005) …………………………………………………………………..…. 26 S. Rep. No. 111-92 (2009) …………………………………………………………………..…. 28 S. Rep. No. 112-13 (2011) ………………………………………………………………...…… 28 H.R. Rep. No. 94-1656 (1976) ..................................................................................................... 16 H.R. Rep. 109-174 (2005)........................................................................................... 18, 23, 25, 26 151 Cong. Rec. S13636 (Dec. 15, 2005) ..................................................................................... 23 151 Cong. Rec. S14275-01 (2005) .............................................................................................. 24 152 Cong. Rec. H581-02 (2006) .................................................................................................. 24 152 Cong. Rec. S1325 (Feb. 15, 2006) ........................................................................................ 25 152 Cong. Rec. S1379 (Feb. 16, 2006)..........................................................................................23
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Case 1:13-cv-03994-WHP Document 33 Filed 08/26/13 Page 11 of 52 152 Cong. Rec. S1598-03 (2006) .......................................................................................... 23, 24 156 Cong. Rec. H838 (Feb. 25, 2010) ......................................................................................... 27 156 Cong. Rec. S2109 (Mar. 25, 2010) ........................................................................................ 27 OTHER AUTHORITIES D. Kris & J. Wilson, National Security Investigations & Prosecutions (2d ed. 2012) ……… 4, 17
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PRELIMINARY STATEMENT Plaintiffs seek to invalidate an important element of the Government’s efforts to protect the Nation from the very real and unrelenting threat of terrorist attack. Specifically, Plaintiffs challenge the Government’s bulk collection of “telephony metadata,” business records created by (and belonging to ) telecommunications service providers that include such information as the time and duration of calls made, and the numbers dialed, but not the content of anyone’s calls, or their names and addresses. Collection of these records, which has been repeatedly authorized by the Foreign Intelligence Surveillance Court (FISC) as consistent with governing law, permits National Security Agency (NSA) analysts, acting under strict controls imposed by FISC orders, to detect communications between foreign terrorists and any of their contacts located in the United States. Plaintiffs maintain that this activity is unauthorized by the Foreign Intelligence Surveillance Act (FISA), and violates the First and Fourth Amendments. For the reasons discussed herein, the Court lacks jurisdiction to entertain these claims, and Plaintiffs fail in any event to state claims on which relief can be granted. Thus, the Complaint should be dismissed. First, Plaintiffs’ Complaint fails to establish their standing to sue, as their alleged injuries are entirely speculative. The FISC’s orders limit review of the metadata for intelligence purposes to those records responsive to queries conducted using identifiers (e.g., telephone numbers) chosen based on reasonable, articulable suspicion that they are associated with foreign terrorist organizations approved for targeting by the FISC. There is no non-speculative basis to expect that queries of the metadata under this standard will return information about calls either made by Plaintiffs, or made to them by others. Thus, Plaintiffs’ allegations that records of their calls could be used to glean sensitive information about their work and clients, and that persons with whom they collaborate could be “chilled” by that prospect from contacting them, are wholly conjectural. Second, Congress impliedly precluded review of Plaintiffs’ statutory claim, that the

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bulk collection of telephony metadata exceeds the Government’s authority under FISA. FISA’s detailed statutory scheme for judicial review of specified intelligence activities conducted under its purview reflects a Congressional purpose to preclude third parties such as Plaintiffs from mounting FISA-based challenges to FISC business records orders in federal district court.
Apart from these jurisdictional deficiencies, the Government’s collection of telephony metadata is lawful under FISA and the Constitution, and the Complaint states no plausible claim to the contrary. As the FISC repeatedly has found (as recently as last month), telephony metadata are relevant to authorized counter-terrorism investigations, and their collection by the Government is authorized by FISA. Plaintiffs also fail to state a Fourth Amendment claim. There has been no search or seizure of their property or effects, and, as the Supreme Court held in Smith v. Maryland, 442 U.S. 735 (1979), telephone subscribers have no protected privacy interest in the type of information at issue here. In addition, even if the Government’s conduct implicated a protected Fourth Amendment interest, the bulk collection of telephony metadata would be “reasonable” and permissible in light of the strong national interest in preventing terrorist attacks, and the minimal intrusion on individual privacy. Finally, Plaintiffs fail to state a First Amendment claim, because intelligence-gathering conducted in a manner consistent with the Fourth Amendment, for purposes unrelated to the suppression of protected speech or association, does not violate the First Amendment. For these reasons, elaborated below, the Court should reject Plaintiffs’ effort to preclude the use of this important intelligence tool.
STATEMENT OF FACTS A. Statutory Background Congress enacted FISA to authorize and regulate certain governmental surveillance of communications and other activities conducted for purposes of gathering foreign intelligence. In enacting FISA, Congress also created the FISC, an Article III court of 11 appointed U.S. district
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judges with authority to consider applications for and grant orders authorizing electronic surveillance and other forms of intelligence-gathering by the Government. 50 U.S.C. § 1803(a); see In re Motion for Release of Court Records, 526 F. Supp. 2d 484, 486 (F.I.S.C. 2007).
At issue here is the “business records” provision of FISA, 50 U.S.C. § 1861, enacted by section 215 of the USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001) (“Section 215”). Section 215 authorizes the FISC to issue an order for the “production of any tangible things (including books, records, papers, documents, and other items) for an investigation [1] to obtain foreign intelligence information not concerning a United States person or [2] to protect against international terrorism” (provided, in the case of a counter-terrorism investigation of a “United States person,” that “such investigation … is not conducted solely upon the basis of activities protected by the first amendment to the Constitution”). 50 U.S.C. § 1861(a)(1). The records must be of a type obtainable by either a grand jury subpoena, or an order issued by a U.S. court directing the production of records or tangible things. Id. § 1861(c)(2)(D).
The Government’s application for an order under Section 215 must include, among other things, a statement of facts showing that there are “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation … to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism.” Id. § 1861(b)(2)(A). The investigation must be authorized and conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor thereto). Id. § 1861(a)(2)(A), (b)(2)(A). Information acquired from the records or other tangible items received in response to a Section 215 order “concerning any United States person may be used and disclosed by [the Government] without the consent of [that] person only in accordance with … minimization procedures,” adopted by the Attorney General and enumerated in the Government’s application, that “minimize the retention, and prohibit the dissemination, of
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nonpublicly available information concerning unconsenting United States persons consistent with the [Government’s] need … to obtain, produce, and disseminate foreign intelligence information.” Id. § 1861(b)(2)(B), (g)(2), (h). The FISC must find that these requirements have been met before it issues the requested order, which in turn must direct that the minimization procedures described in the application be followed. Id. § 1861(c)(1).
Section 215 includes a scheme providing for judicial review of a business records order, but only in limited circumstances. Specifically, it allows “[a] person receiving a production order [to] challenge the legality of that order” by filing a petition with the “review pool” of FISC judges designated under 50 U.S.C. § 1803(e)(1) to review production orders under Section 215. Id. § 1861(f)(1), (2)(A)(i). A “pool” judge considering a petition to modify or set aside a production order may grant the petition if the judge finds that the order does not meet the requirements of Section 215 or “is otherwise unlawful.” Id. § 1861(f)(2)(B). Thus, a production order can be set aside if it exceeds the authority conferred by Section 215 or is unconstitutional. 1 D. Kris & J. Wilson, National Security Investigations & Prosecutions § 19:10 at 714 (2d ed. 2012) (“Kris & Wilson”). Either the Government or a recipient of a production order may appeal the decision of the pool judge to the FISC Court of Review, with review available thereafter on writ of certiorari in the Supreme Court. 50 U.S.C. § 1861(f)(3); see id. § 1803(b). Section 215’s carefully circumscribed provisions for judicial review were added when Congress reauthorized the USA PATRIOT Act in 2006, and these provisions authorized contested litigation before the FISC for the first time. 1 Kris & Wilson §5:5, 19:7 (2d ed. 2012). The FISA does not provide for review of Section 215 orders at the behest of third parties.
B. The Collection of Telephony Metadata Records Authorized by the FISC Plaintiffs challenge the Government’s exercise of authority, as reflected in a secondary order of the FISC, to collect telephony metadata records in bulk. Compl. ¶ 30, citing In re
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Application of the FBI for an Order Requiring the Production of Tangible Things [etc.], Dkt. No. BR 13-80, Secondary Order 1-2 (F.I.S.C. Apr. 25, 2013) (the “Secondary Order”) (Exhibit 1, hereto). The Secondary Order was issued in conjunction with, and on the same day as, a primary order in which the FISC granted the Government’s application for production of these records, finding “reasonable grounds to believe that the [records] sought are relevant to authorized investigations … being conducted by the FBI … to protect against terrorism.” In re Application of the FBI for an Order Requiring the Production of Tangible Things [etc.], Dkt. No. BR 13-80, Primary Order 1-2 (F.I.S.C. Apr. 25, 2013) (the “Primary Order”) (Exhibit 2, hereto). 1
These Orders directed the daily production to NSA of electronic copies of “all call detail records, or ‘telephony metadata,’” created by a recipient telecommunications service provider for calls to, from, or wholly within the United States. Primary Order at 3-4; Secondary Order at 1-2. “Telephony metadata” is defined by the Orders as “comprehensive communications routing information” including but not limited to “originating and terminating telephone number[s], International Mobile Subscriber Identity (IMSI) number[s], International Mobile Station Equipment Identity (IMEI) number[s], trunk identifier[s], telephone calling card numbers, and time and duration of call.” Primary Order at 3 n.1. By the express terms of the Orders, “[t]elephony metadata does not include the name, address, or financial information of a subscriber or customer.” Id.; Secondary Order at 2. The Court’s Orders do not permit the Government to listen to or record the contents of any telephone conversations.
As required by FISA, the terms of the Primary Order direct the Government to comply with “minimization procedures” that strictly limit the extent to which information received under
1 The Court may consider the Secondary Order on this motion, as it is specifically referenced in and integral to the Complaint. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The Court may take judicial notice of the publicly available portions of the Primary Order as an official judicial act. See Conopco, Inc. v. Roll Int’l, 231 F.3d 82, 86 n.3 (2d Cir. 2000); United States v. Merrick Sponsor Corp., 421 F.2d 1076, 1079 n.2 (2d Cir. 1970).
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the FISC’s Orders can be reviewed, used, or disseminated, and prevent Government personnel from indiscriminately sifting through the data. See 50 U.S.C § 1861(b)(2)(B), (g)-(h); Primary Order at 4-14. The metadata must be stored by NSA in secure networks with access restricted to authorized personnel who have received appropriate training. Primary Order at 4-5. NSA analysts may “query” (electronically search) the metadata “for purposes of obtaining foreign intelligence information” – that is, to identify terrorism-related communications – only when there is reasonable, articulable suspicion, based on specific facts, that the “identifier” (e.g., a telephone number) used to query the database is associated with a specific foreign terrorist organization that was previously identified to and approved for targeting by the FISC. Primary Order at 6-8; DNI Statement on Recent Unauthorized Disclosures of Classified Information (June 6, 2013) (“DNI Statement”) (Exhibit 3, hereto) at 2.2 Only a small number of NSA officials designated by the Primary Order are authorized to make findings of reasonable, articulable suspicion, and NSA’s Office of General Counsel (OGC) must review such findings for numbers reasonably believed to be used by United States persons, to ensure the findings are not based on activities protected by the First Amendment. Primary Order at 7-9. Although the FISC has authorized the collection and maintenance of large amounts of metadata, only those records responsive to queries based on approved identifiers may be disseminated. See id. at 12-13. Therefore, “only a small fraction of the records are ever reviewed.” DNI Statement at 2.
The results of these “contact-chaining queries,” Primary Order at 6, following analysis by NSA, may be shared with the FBI and allow Government investigators to discover persons, including persons (and associates of persons) located in the United States, who have been in contact with known or suspected terrorist organizations and may themselves be engaged in
2 The Court may consider this statement on the Government’s motion to dismiss because it is a document “of which [P]laintiffs had possession and relied on in bringing suit.” Chambers, 282 F.3d at 152 (internal quotation marks and citation omitted); see Compl. ¶ 31.
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terrorist activity. DNI Statement at 1-2; see Primary Order at 4. However, before the NSA may disseminate information about a U.S. person outside the agency, a high-ranking NSA official “must determine that the information identifying the U.S. person is in fact related to counterterrorism information and is necessary to understand the counterterrorism information or assess its importance.” Primary Order at 13. The FBI, in turn, must handle the information it receives from NSA in accordance with the minimization procedures set forth in The Attorney General’s Guidelines for Domestic Operations. Id. at 4.
The NSA’s activities under the FISC’s Orders are subject, in addition, to an extensive regime of internal reporting, audits, and oversight; regular consultation with the NSA Office of the Inspector General, and the Department of Justice, to assess compliance with the FISC’s Orders; and monthly reports to the FISC including, inter alia, a discussion of NSA’s application of the “reasonable, articulable suspicion” standard and the number of times that query results containing U.S. person information have been shared with anyone outside NSA. Id. at 4-16. As acknowledged in the Complaint, ¶ 31, the FISC must renew Government’s authority to collect telephony metadata under its orders every 90 days. See Primary Order at 17 (setting expiration date of collection authority); Secondary Order at 4 (same).3
C. Plaintiffs’ Allegations4 Plaintiffs are non-profit organizations that engage in civil rights litigation, education, and lobbying. Compl. ¶¶ 6-9, 24. They allege that the Government has engaged in “dragnet
3 FISA also requires the Government to report to Congress regarding the use of its Section 215 authority, including copies of significant FISC orders and the Government’s supporting pleadings. 50 U.S.C. §§ 1862, 1871.
4 For purposes of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the well-pleaded factual allegations of a complaint must be accepted as true. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010). Defendants reserve the right, however, to contest Plaintiffs’ allegations, and/or their ability to prove their allegations without implicating protected state secrets, as may be necessary or appropriate in further proceedings.
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acquisition” of telephony metadata concerning their communications, id. ¶¶ 1-2, 30, although they acknowledge that the collection of the metadata is court-authorized. Id. ¶¶ 2, 22, 23, 31.
Plaintiffs contend that the telephony metadata provide the government with “a comprehensive record” of “sensitive and often privileged” information about their communications with “journalists, current and potential clients, legislators and legislative staff, and members of the public,” concerning “Plaintiffs’ advocacy, representation of clients, and efforts to lobby Congress.” Compl. ¶¶ 3, 24-25, 35. These include communications with potential witnesses and informants, whistleblowers, and lobbyists who consider their associations with Plaintiffs confidential. Id. ¶¶ 26-27. Plaintiffs specifically allege that the telephony metadata maintained by the Government “could readily be used to identify those who contact Plaintiffs for legal assistance or to report human-rights or civil-liberties violations, as well as those whom Plaintiffs contact in connection with their work.” Id. ¶¶ 1, 35. Therefore, the Government’s maintenance of these records, according to Plaintiffs, “is likely to have a chilling effect on whistleblowers and others who would otherwise contact Plaintiffs.” Id. ¶¶ 3, 35. Plaintiffs make no allegations, however, that the Government has reviewed metadata of any of their communications, whether pursuant to queries based on reasonable, articulable suspicion that particular telephone numbers (or other identifiers) are associated with specific foreign terrorist organizations approved for targeting by the FISC, or otherwise.
Plaintiffs contend that this court-sanctioned collection of telephony metadata exceeds the authority conferred by Section 215, and violates the First and Fourth Amendments. Id. ¶¶ 3638. They bring suit under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, predicating jurisdiction on, inter alia, the waiver of sovereign immunity codified in the Administrative Procedure Act, 5 U.S.C. § 702. Id. ¶ 4. Plaintiffs seek a declaration that the telephony metadata collection is unlawful; a permanent injunction against future collection of telephony metadata
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concerning their communications, whether under the Secondary Order “or any successor thereto”; and an order directing the Government “to purge from [its] possession” all such metadata collected to date. Id. at 10 (Prayer for Relief ¶¶ 2-5).
ARGUMENT Under the pleading standards set forth in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), to survive a motion to dismiss a complaint must contain “sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Mere “labels and conclusions,” and “naked assertion[s] devoid of further factual enhancement,” are not sufficient. Rather, considering only the well-pleaded, non-conclusory allegations of a complaint, and “assum[ing] their veracity,” the court must determine whether they “plausibly give rise to an entitlement to relief.” Id. at 678-79 (internal quotations omitted), see id. at 680-81; PBGC ex rel. St. Vincent Catholic Med. Ctr. Ret. Plan v. Morgan Stanley Inv. Mgmt., Inc., 712 F.3d 705, 717 (2d Cir. 2013) (“St. Vincent”). To reach the level of plausibility, the well-pleaded facts “must demonstrate ‘more than a sheer possibility that a defendant has acted unlawfully.’” St. Vincent, 712 F.3d at 717 (quoting Iqbal, 556 U.S. at 678). Facts that “are merely consistent with” a defendant’s liability “stop[ ] short of the line between possibility and plausibility.” Iqbal, 556 U.S. at 678; St. Vincent, 712 F.3d at 717. The Complaint in this case falls well short of that line, and must be dismissed. POINT I: THE COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFFS
HAVE NOT ESTABLISHED THEIR STANDING A. The Requirements of Article III Standing “The judicial power of the United States” is limited by Article III of the Constitution “to the resolution of ‘cases’ and ‘controversies.’” Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982). “No principle is more fundamental to the judiciary’s proper role in our system of government.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (internal quotation marks and citation omitted). A
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demonstration by plaintiffs of their standing to sue “is an essential and unchanging part of the case-or-controversy requirement,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), “serv[ing] to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013) (citations omitted). The “standing inquiry has been especially rigorous when reaching the merits of the dispute would force [a court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Id. at 1147 (citations and quotations omitted). Similarly, as the Supreme Court recently observed in Amnesty Int’l, it has “often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs.” Id.
To establish Article III standing, Plaintiffs must seek relief from an injury that is “‘concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’” Id. Although “imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes – that the injury is certainly impending.” Id. (citations and internal quotation marks omitted); see also id. (“‘threatened injury must be certainly impending to constitute injury in fact,’” and “‘[a]llegations of possible future injury’ are not sufficient” (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990), and citing multiple additional cases)); see also DaimlerChrysler, 547 U.S. at 345. If Plaintiffs cannot carry the threshold jurisdictional burden of adequately pleading their standing to sue, see Defenders of Wildlife, 504 U.S. at 561, then “the [C]ourt cannot proceed” and must dismiss the case. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).
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B. Plaintiffs Allege Injuries That Are Speculative and Conjectural, Not Certainly Impending_________________________ _______
The Complaint should be dismissed because Plaintiffs have failed to plausibly allege an injury meeting Article III’s standards. As discussed below, Plaintiffs’ allegations of the consequences they will suffer as a result of the challenged intelligence-gathering activities depend on speculation that the Government has reviewed, or might in future review, call detail records of their communications, and that persons who would otherwise contact Plaintiffs by telephone may be “chilled” from doing so by that conjectural prospect. Such speculation is insufficient for purposes of Article III, and, as a result, Plaintiffs lack standing.
Plaintiffs’ allegations of injury stem from their assertion that for purposes of civil rights litigation, education, and lobbying they engage in “sensitive” and “privileged” communications with clients, witnesses, whistleblowers, and other persons who consider their associations and “even the fact of their discussions” with Plaintiffs to be confidential. Compl. ¶¶ 3, 6-9, 24-27. They allege that metadata records of their calls “could readily be used to identify those who contact Plaintiffs for legal assistance or to report human-rights or civil-liberties violations, as well as those whom Plaintiffs contact in connection with their work.” Id. ¶ 35. On the basis that records of their calls “could readily be used” for this purpose, Plaintiffs allege further that the Government’s acquisition of such records “is likely to have a chilling effect on people who would otherwise contact Plaintiffs.” Id. These allegations are too conjectural to demonstrate that “the threatened injur[ies] [are] certainly impending.” Amnesty Int’l, 133 S. Ct. at 1147.
Plaintiffs’ first alleged harm, the potential use of call detail records to identify persons with whom Plaintiffs speak, cannot support their standing. Government personnel could identify persons with whom Plaintiffs speak by phone, either individually or collectively, only by retrieving and reviewing the metadata records of calls to or from Plaintiffs (and then taking the next step of ascertaining the identities of the subscribers whose numbers are memorialized in the
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records). But under the FISC’s Orders, Government personnel may only review records
responsive to queries initiated using identifiers that are believed, based on reasonable, articulable
suspicion, to be associated with specific foreign terrorist organizations approved for targeting by
the FISC. See supra at 6; Primary Order at 7. The Complaint contains no allegations, much less
well-pleaded, non-conclusory allegations, that the Government has accessed or reviewed
metadata records of Plaintiffs’ calls as a result of queries made under the “reasonable, articulable
suspicion” standard (or otherwise). Thus, it is sheer speculation to suggest that metadata records
of calls to or from Plaintiffs either have been or ever will be retrieved or reviewed through
queries of the database, much less mined by the Government “to learn sensitive and privilege information about [Plaintiffs’] work and clients.” Compl. ¶ 3.5
The Supreme Court’s decision in Amnesty Int’l addressed a similar standing question and
establishes that Plaintiffs’ reliance on speculation concerning the reach of Government
intelligence-gathering activities is insufficient to demonstrate their standing. In Amnesty Int’l,
various humans rights, labor, and media organizations challenged the constitutionality of the
FISA Amendments Act of 2008, which expanded the Government’s authority to intercept the
communications of non-U.S. persons located abroad. 133 S. Ct. at 1144. The organizations
alleged that they interacted and engaged in sensitive communications with persons who were
likely to be considered by the Government as potential terrorists, or persons of interest in
5 In a 2011 FISC opinion recently declassified and publicly released by the Government (concerning the adequacy of the Government’s minimization procedures for Internet communications data collected under authority of section 702 of FISA, 50 U.S.C. § 1881a), the FISC alluded to a 2009 opinion in which it found that, due to “misperceptions by the FISC” and “inaccurate statements made in the government’s submissions,” the “NSA had been routinely running queries of [telephony] metadata [collected under Section 215] using query terms that did not meet the required standard.” October 3, 2011, FISC Memorandum Opinion and Order (Bates, J.) at 16 n.14 (available at http://icontherecord.tumblr.com/tagged/declassified). Any allegation by Plaintiffs, however, that past incidents of non-compliance with the “reasonable, articulable suspicion” standard make it likely that records of their calls have been or will be reviewed, would be equally speculative, and insufficient under Article III.
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terrorism investigations. See id. at 1145-46. They further alleged that they would suffer harms as a result of the Government surveillance program, including a compromised ability to “locate witnesses, cultivate sources, obtain information, and communicate confidential information,” and a need to undertake various costly measures to avoid possible surveillance. Id.
The Supreme Court, however, held that none of these alleged harms was sufficient to confer standing, because it was “speculative whether the Government will imminently target communications to which respondents are parties.” Id. at 1148. Rather, the Court held that the plaintiffs’ harm rested on a “speculative chain of possibilities,” including “that the Government [would] target the communications of non-U.S. persons with whom they communicate,” that the Government would succeed in intercepting those communications, and that the plaintiffs would be parties to the particular communications the Government intercepts. Id. at 1148-50. So, too, here. The idea that the course of unspecified Government counter-terrorism investigations would lead to particular telephone numbers; that these numbers would be reasonably suspected of association with unidentified foreign terrorist organizations; that these numbers would be used to formulate queries of the collected telephony metadata; and that these queries would retrieve metadata records of Plaintiffs’ calls that the Government would in turn review, is just as speculative as the allegations of harm that were rejected as insufficient in Amnesty Int’l.
Equally unavailing as a claim of injury is the asserted possibility that others might refrain from communicating with Plaintiffs because they fear disclosure of their associations with Plaintiffs. Plaintiffs allege that, because the metadata records of their calls “could readily be used to identify” those with whom Plaintiffs communicate, individuals who would otherwise contact Plaintiffs will “likely” be chilled from doing so. Compl. ¶ 35. Plaintiffs’ burden, however, is to allege facts plausibly suggesting that their injury is certainly impending. Iqbal, 556 U.S. at 678; Amnesty Int’l. 133 S. Ct. at 1147. The “naked assertion,” Iqbal, 556 U.S. at
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678, that unnamed individuals who regard their communications with Plaintiffs as “confidential” may be so unnerved by the idea of the Government reviewing telephony metadata that they will refrain from calling Plaintiffs does not suffice. The Complaint is “devoid of further factual enhancement” that elevates this allegation from the field of mere possibility to the required crest of plausibility. Id. That is especially so because the occurrence of the alleged injury “depends on the unfettered choices made by independent actors not before the court[ ] … whose exercise of broad and legitimate discretion the court[ ] cannot presume . . . to predict.” Defenders of Wildlife, 504 U.S. at 562. In this event, it becomes the Plaintiffs’ burden “to adduce facts showing that those choices have been or will be made in such manner” as to produce cognizable harm, id. (emphasis added), which the Complaint does not even endeavor to do. See also Port Washington Teachers’ Ass’n v. Bd. of Educ., 478 F.3d 494, 499 (2d Cir. 2007) (teachers’ union lacked standing to challenge policy on reporting student pregnancies where they failed to show that “students will bring suit against [them] for [making] any such disclosure[s]”).
In addition, even if as yet unnamed third persons refrained from contacting Plaintiffs out of fear that their association with Plaintiffs could be revealed, that would not constitute an injury attributable to the Government’s actions. Rather, such a decision by third parties would instead be the product of subjective and speculative fears on the part of those individuals that the Government might retrieve and review metadata records of their calls with Plaintiffs. As such it would not be “fairly traceable” to the Government’s exercise of authority under Section 215. Amnesty Int’l, 133 S. Ct. at 1152 & n.7, citing Laird v. Tatum, 408 U.S. 1, 10-14 (1972).
For all of the above reasons, the Complaint should be dismissed for lack of standing. POINT II: CONGRESS IMPLIEDLY PRECLUDED JUDICIAL REVIEW OF
PLAINTIFFS’ STATUTORY CLAIM Congress has impliedly precluded judicial review of the type of statutory claim Plaintiffs assert – that is, a claim by telephone subscribers that the provision of telephony metadata to the
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Government, pursuant to a FISC order, violates Section 215. See Compl. ¶ 36. Thus, Plaintiffs cannot rely on the waiver of sovereign immunity codified in the Administrative Procedure Act (APA), 5 U.S.C. § 702; see Compl. ¶ 4, to supply the needed waiver for their statutory claim. The APA’s waiver of sovereign immunity does not apply where, as here, Congress has granted consent to suit in specified circumstances or fora, or by specified parties, under another statute, and thus impliedly foreclosed the relief sought. 5 U.S.C. § 702. Nor does the APA authorize suit where “statutes preclude judicial review,” as Section 215 clearly does. Id. § 701(a)(1). Plaintiffs’ statutory claim must therefore be dismissed.
“It is elementary that the United States, as sovereign, is immune from suit save as it consents to be sued . . . .” United States v. Mitchell, 445 U.S. 535, 538 (1980) (internal quotations omitted); see also FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”). “A waiver of sovereign immunity cannot be implied but must be unequivocally expressed.” Mitchell, 445 U.S. at 538 (internal quotations omitted). Any ambiguity is construed in favor of immunity. FAA v. Cooper, 132 S. Ct. 1441, 1448 (2012). Ambiguity exists if there is a “plausible interpretation” of the statute that would not authorize the relief sought. Id.
As a general matter, section 702 of the APA grants the Government’s consent to suit in actions “seeking relief other than money damages.” It is subject to a number of significant exceptions, however, two of which apply here. First, section 702 itself provides that “[n]othing herein … confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” 5 U.S.C. § 702. Second, mirroring the first exception, the APA provides that its chapter on judicial review, including section 702, does not apply “to the extent that … statutes preclude judicial review.” 5 U.S.C. § 701(a)(1).
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The first exception “prevents plaintiffs from exploiting the APA’s waiver to evade limitations on suit contained in other statutes.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2204-05 (2012). As Congress explained when it enacted the APA’s waiver of immunity, this “important carve-out,” id. at 2204, makes clear that section 702 was “not intended to permit suit in circumstances where statutes forbid or limit the relief sought,” that is, where “Congress has consented to suit and the remedy provided is intended to be the exclusive remedy.” H.R. Rep. No. 94-1656, at 12-13 (1976), 1976 WL 14066, * 12-13. “For example, . . . a statute granting the United States’ consent to suit, i.e., the Tucker Act, ‘impliedly forbids’ relief other than the [damages] remedy provided by the Act.” Id. Thus, “‘[w]hen Congress has dealt in particularity with a claim and [has] intended a specified remedy’—including its exceptions—to be exclusive, that is the end of the matter; the APA does not undo the judgment.” Pottawatomi Indians, 132 S. Ct. at 2205 (quoting Block v. North Dakota ex rel. Bd. of Univ. and Sch. Lands, 461 U.S. 273, 286, n. 22 (1983)).
To much the same effect, section 701(a)(1) of the APA withdraws section 702’s waiver of immunity where “statutes preclude judicial review.” § 701(a)(1) (“This chapter applies, according to the provisions thereof, except to the extent that (1) statutes preclude judicial review”). “Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984). “[W]hen a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded.” Id.; see Pottawatomi Indians, 132 S. Ct. at 2213.
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Here, a provision of the USA PATRIOT Act that permits specified suits against the United States impliedly forbids Plaintiffs’ statutory claim for equitable relief. Pub. L. No. 10756, § 223, 115 Stat. 294 (2001), codified at 18 U.S.C. § 2712. Section 2712, titled “Civil actions against the United States,” authorizes suits against the United States to recover money damages for willful violations of the Wiretap Act, the Stored Communications Act (SCA), and three particular provisions of FISA. 18 U.S.C. § 2712(a). The three specified provisions of FISA are sections 106(a), 305(a), and 405(a), which respectively impose restrictions on the use and disclosure of information obtained from electronic surveillance, physical searches, and pen registers or trap and trace devices authorized under FISA. See 50 U.S.C. §§ 1806(a), 1825(a), 1845(a). Significantly, violations of the parallel “use” provision of Section 215, 50 U.S.C. § 1861(h), which restricts the Government’s use and disclosure of tangible things received in response to a production order, are not made actionable under section 2712.6 Congress further stipulated that an action under § 2712 shall be the exclusive remedy against the United States for claims falling within its purview. Id. § 2712(d). Section 2712 thus deals with claims for misuses of information obtained under FISA in great detail, including the intended remedy, and Plaintiffs cannot rely on section 702 to bring a claim for violation of FISA’s terms that Congress did not provide for under 18 U.S.C. § 2712. Pottawatomi Indians, 132 S. Ct. at 2205.
The same conclusion was reached by another district court in a suit challenging alleged NSA “dragnet” surveillance after the 9/11 attacks. Jewel v. NSA, 2013 WL 3829405 (N.D. Cal. July 23, 2013). The court in Jewel held that § 2712, “by allowing suits against the United States only for damages based on three provisions of [FISA], impliedly bans suits against the United
6 The enactment of section 223 of the USA PATRIOT Act in 2001 preceded enactment of 50 U.S.C. § 1861(h) in 2006. 1 Kris & Wilson § 19:11 at 718. Congress has not since amended § 2712 to include violations of § 1861(h) as a basis for suit. In fact, when Congress amended Section 215 to add subsection (h), it also added the review provision at subsection (f), but made review available only to persons to whom Section 215 orders are directed.
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States that seek injunctive relief under any provision of FISA.” Id. at *12. Accordingly, the plaintiffs there could not rely on section 702 of the APA as a waiver of sovereign immunity for their FISA-based claim for injunctive relief. Id. The same result is required in this case.
Section 215 also reflects an intent by Congress to foreclose the statutory claim asserted here, by this type of plaintiff, in this forum, and thus qualifies as a “statute[] [that] preclude[s] judicial review.” 5 U.S.C. § 701(a)(1). Section 215 carefully delineates who may seek review of a production order and in what court, specifying that “[a] person receiving a production order” may challenge its legality “by filing a petition with [the FISC review] pool” to “modify or set [it] aside.” 50 U.S.C. § 1861(f)(2)(A)(i), (B). Making the preclusive intent of this provision even clearer, Congress punctuated it with the instruction that “[a]ny production … order not explicitly modified or set aside consistent with [subection 1861(f)],” that is, on pool review of a provider petition, “shall remain in effect.” Id. § 1861(f)(2)(D). Thus, Congress clearly limited the right to contest the legality of Section 215 production orders to recipients of such orders who file petitions for review with the FISC. Indeed, when Congress authorized providers to petition the FISC for review of Section 215 orders, it rejected an amendment that would have allowed such review in federal district court. See H. R. Rep. 109-174 at 128-29, 134, 137. 7
Like the statutory scheme under § 2712, Section 215 indicates that Congress meant to exclude a suit such as the instant one, brought by parties that are not recipients of a production order, in federal district court, not the FISC, seeking equitable relief in a challenge to the
7 Further telling is Congress’s decision to not authorize motions to suppress information obtained from a Section 215 order. When the United States or a state intends to use evidence obtained or derived from electronic surveillance, physical searches, or use of pen register or trapand-trace (PR/TT) devices authorized under FISA in judicial or administrative proceedings against a person, FISA permits that person to contest the legality of the evidence through a suppression motion. 50 U.S.C. §§ 1806(e), 1825(f), 1845(e). But tangible things acquired under Section 215 are not the products of electronic surveillance, physical searches, or use of PR/TT devices. See 50 U.S.C. § 1801(f) (defining electronic surveillance), § 1821(5) (physical search), § 1841(2) (PR/TT devices).
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statutory validity of a Section 215 production order. This limitation on judicial review makes sense, given that the tangible things that are the subject of a Section 215 order belong to the recipients of the production order, not to third parties such as plaintiffs here. See United States v. Miller, 425 U.S. 435, 440-41 (1976).8 This “detailed mechanism for judicial consideration of particular issues” under Section 215 “at the behest of particular persons” means that “judicial review of those issues at the behest of other persons” is “impliedly precluded.” Cmty Nutrition Inst., 467 U.S. at 349 (holding that statutory scheme allowing dairy handlers to seek review of milk marketing orders precluded actions by consumers); see also Dew v. United States, 192 F.3d 366, 371-74 (2d Cir. 1999) (statute prohibiting employment discrimination on the basis of military service, which authorized civil enforcement action against state and private employers, impliedly precluded suit for equitable relief under the APA by employees of federal intelligence community agencies); In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp. 2d 114, 128-29 (E.D. Va. 2011) (provision of SCA allowing Twitter subscribers to challenge orders requiring production to Government of “backup information” impliedly prohibited statutory challenge by subscribers to order requiring production of electronic records pertaining to them).
For these reasons, Plaintiffs’ first cause of action, alleging that the Government has acted in excess of its authority under Section 215, should be dismissed. POINT III: THE GOVERNMENT’S BULK COLLECTION OF TELEPHONY
METADATA IS AUTHORIZED UNDER SECTION 215 Even setting aside the jurisdictional deficiencies described above, the Complaint should still be dismissed for failure to state a claim, because it does not “plausibly suggest” that the
8 Nor does a party, in the absence of a claim of privilege, typically have standing to object to a subpoena directed to a non-party witness. Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1975).
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collection of metadata authorized by the FISC either exceeds the bounds of Section 215, or (as discussed in Points IV and V, infra) violates the Constitution. Iqbal, 556 U.S. at 681.
As their first cause of action Plaintiffs assert that bulk collection of telephony metadata as contemplated by the FISC’s Orders exceeds the authority granted by Section 215. Compl. ¶ 36. The Complaint does not set forth the basis for this claim, but, in their July 2, 2013, preconference letter to the Court, Plaintiffs suggest that the production ordered by the FISC is unauthorized because (i) the records in question are not “relevant” to an authorized national security investigation, and (ii) Section 215 does not authorize collection of records “as they are generated.” Both of these contentions lack merit and should be rejected.
A. The Telephony Metadata Collected Under the FISC’s Orders Are “Relevant” to Authorized National Security Investigations
Section 215 authorizes the FISC to order “production of any tangible things” upon the Government’s application showing “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation … to protect against international terrorism.” 50 U.S.C. § 1861(a)(1), (b)(2)(A). As recited in the Secondary Order, at 1, the FBI made such an application for an order directing the production of telephony metadata, and the FISC specifically found, in the Primary Order, at 2, “reasonable grounds to believe” that the telephony metadata sought by the Government “are relevant to authorized investigations … being conducted by the FBI … to protect against international terrorism.” Plaintiffs now ask this Court to second-guess the FISC’s conclusion and declare instead that the records the FISC ordered produced to the Government are not, in fact, relevant to authorized counter-terrorism investigations, on the apparent ground that the vast majority of those records do not themselves document calls made in connection with terrorist plots. See Compl. ¶¶ 2, 30-34. Plaintiffs’ position is contrary to Congress’s understanding of the term “relevant” under Section 215, the statute’s intended purpose, and repeated decisions of the FISC, and should be rejected.
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1. Congress Intended Section 215 To Incorporate a Broad Concept of Relevance, Drawn from the Legal Meaning Applied in Grand Jury, Civil, and Administrative Proceedings, That Also Takes Into Account the Special Characteristics of the Terrorism Investigations to Which It Applies
Even in common usage, “relevant” broadly connotes anything “[b]earing on or connected with,” or “pertinent to,” a specified matter or thing. Oxford English Dictionary (3d ed. 2009) (available at www.OED.com). Relevance, however, has developed an even broader legal meaning in the context of official investigations and civil proceedings, for which purposes documents are considered “relevant” not only where they directly bear on a matter, but also where they reasonably could lead to other information that may bear on the matter.
In civil discovery, for example, the phrase “relevant to the subject matter involved in the pending action” broadly encompasses “any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (emphasis added). An even broader relevance standard applies to grand jury subpoenas, which will be upheld, notwithstanding the incidental production of irrelevant documents, unless “there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.” United States v. R. Enters., Inc., 498 U.S. 292, 301 (1991) (emphasis added); In re Grand Jury Proceedings, 616 F.3d 1186, 1202, 1205 (10th Cir. 2010). Likewise, the statutory authority conferred on administrative agencies to subpoena evidence that is “relevant to [a] charge under investigation” affords them “access to virtually any material that might cast light on the allegations” at issue in an investigation, EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984) (internal quotations omitted), and courts generally defer to an agency’s appraisal of what is relevant to the investigation at hand, see NLRB v. Am. Med. Response, Inc., 438 F.3d 188, 193 (2d Cir. 2006).
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In light of that basic understanding of relevance, courts in each of these contexts have
categorically authorized the production of entire repositories of records, even when any
particular record is unlikely to bear directly on the matter being investigated, where searching a
large volume of information is the only feasible means of locating much smaller amounts of critical information within the data that directly bears on the matter under investigation.9 In the
analogous field of search warrants for data stored on computers, courts also permit Government
agents to copy entire computer hard drives and then later review the entire drive for the specific evidence described in the warrant. See Fed. R. Crim. P. 41(e)(2)(B).10 These practices, in a
variety of settings, demonstrate the broad understanding of the concept of relevance developed in
the context of investigatory information gathering.
Congress incorporated this accepted, broad, and context-dependent legal meaning of the
term “relevant” into Section 215. Ordinarily, Congress is presumed to adopt the common
understanding of the legal terms it employs. See NLRB v. Amax Coal Co., 453 U.S. 322, 329
(1981) (“Where Congress uses terms that have accumulated settled meaning under either equity
or the common law, a court must infer, unless the statute otherwise dictates, that Congress means
9 See, e.g., In re Subpoena Duces Tecum, 228 F.3d 341, 350-51 (4th Cir. 2000) (subpoena for 15,000 patient files); In re Grand Jury Proceedings, 827 F.2d 301, 305 (8th Cir. 1987) (upholding grand jury subpoenas for records of wire money transfers “involving hundreds of innocent people”); FTC. v. Invention Submission Corp., 965 F.2d 1086 (D.C. Cir. 1992); Carrillo Huettel, LLP v. SEC, 2011 WL 601369, at *2 (S.D. Cal. Feb. 11, 2011) (trust account information for all of law firm’s clients held relevant to SEC investigation); Goshawk Dedicated, Ltd. v. Am. Viatical Servs., LLC, 2007 WL 3492762 at *1 (N.D. Ga. Nov. 5, 2007) (compelling production of business’s entire underwriting database); In re Adelphia Commc’ns. Corp., 338 B.R. 546, 549 and 553 (Bankr. S.D.N.Y. 2005) (permitting inspection of “approximately 20,000 large bankers boxes of business records”); Medtronic Sofamor Danek, Inc. v. Michelson, 229 F.R.D. 550, 552 (W.D. Tenn. 2003) (compelling discovery of “approximately 996 network backup tapes … plus an estimated 300 gigabytes of other electronic data).
10 See, e.g., United States v. Hill, 459 F.3d 966, 975 (9th Cir. 2006) (recognizing that “blanket seizure” of the defendant’s entire computer system, followed by subsequent review, may be permissible); United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999).
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to incorporate the established meaning of these terms”).11 In this case, however, both the text
and legislative history confirm that Congress was acutely aware of the accepted legal meaning of
relevance when it enacted Section 215’s relevance requirement.
When Congress codified the relevance requirement under Section 215, see USA
PATRIOT Act Improvement Act of 2005, Pub. L. No. 109-177, § 106(b), 120 Stat. 192 (2006), it
was understood that relevance was the equivalent of the “well established standard” applied to
grand jury subpoenas, administrative subpoenas, and civil discovery requests. See 152 Cong. Rec. S1598, 1606 (Mar. 2, 2006) (statement of Sen. Kyl).12 Indeed, Congress described the
items subject to production under Section 215 as things obtainable by “a subpoena duces tecum
issued by a court … in aid of a grand jury investigation” or “any other order issued by a court …
directing the production of records or tangible things.” 50 U.S.C. § 1861(c)(2)(D). And in
codifying the relevance standard applicable here, Congress provided that the Government need
only show “reasonable grounds to believe” that the records sought are relevant to an authorized
investigation, id § 1861(b)(2)(A), thus incorporating, too, the deferential standard of review
applied to the Government’s relevance determinations when it issues investigatory subpoenas.
See R. Enters., supra at 21, 498 U.S. at 301; Am. Med. Response, 438 F.3d at 193.
11 See also United States v. Shabani, 513 U.S. 10, 14 (1994); McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009) (“When Congress directly incorporates language with an established legal meaning into a statute, we may infer that Congress intended the language to take on its established meaning”); Smith v. Bowersox, 159 F.3d 345, 347 (8th Cir. 1998) (same).
12 See also 152 Cong. Rec. S1379, 1395 (Feb. 16, 2006) (statement of Sen. Kyl) (“We all know the term ‘relevance.’ It is a term that every court uses … The relevance standard is exactly the standard employed for the issuance of discovery orders in civil litigation, grand jury subpoenas in a criminal investigation, and for each and every one of the 335 different administrative subpoenas currently authorized by the United States Code”); 151 Cong. Rec. S13636, 13642 (Dec. 15, 2005) (statement of Sen. Hatch) (the relevance standard incorporated into Section 215 “has been used for years in the issuance of grand jury subpoenas,” and is “strictly in the mainstream of American criminal law”); H.R. Rep. No. 109-174, pt. 1 at 131 (statement of Rep. Lungren) (“the standard proposed here is really the relevance standard under which Federal grand juries … operate”).
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Of course, the case law in the contexts of civil discovery, grand jury subpoenas, and administrative investigations does not involve data acquisition on the scale of the telephony metadata collection authorized by the FISC, because the information gathered in those contexts is sought in aid of focused judicial and administrative proceedings involving identifiable individuals and events. But there are a number of textual and contextual indications that Congress also intended Section 215 to embody a sufficiently flexible standard of relevance to take into account the uniquely important purposes and special characteristics of the national security investigations to which the statute applies.
First, unlike the rules that limit civil discovery to information that is relevant “to the subject matter involved” in a case, Fed. R. Civ. P. 26(b)(1), Section 215 permits the collection of information relevant “to an authorized investigation.” 50 U.S.C. § 1861(b)(2)(A). Business records can therefore be relevant to an investigation not merely if they relate to the subject matter of an inquiry, but also if there is reason to believe they are necessary to the application of investigative techniques that will advance its purposes. The bulk collection of telephony metadata is necessary to enable discovery of otherwise hidden connections between individuals suspected of engaging in terrorist activity and unknown co-conspirators with whom they maintain contact in the United States. The metadata records are therefore relevant to FBI investigations whose object is to thwart the plots in which these individuals are engaged before they come to bitter fruition.13
13 Notably, when Congress codified the relevance standard in Section 215 it specifically rejected proposals to limit its scope so that it would encompass only records pertaining to individuals suspected of terrorist activity. See S. 2369, 109th Cong., 2d Sess., § 3 (Mar. 6, 2006); 151 Cong. Rec. S14275-01 (Dec. 21, 2005) (statement of Sen. Dodd) (“Unfortunately, the conference report … maintains the minimal standard of relevance without a requirement of fact connecting the records sought, or the individual, suspected of terrorist activity”). See also 152 Cong. Rec. S1598-03 (2006) (statement of Sen. Levin); 152 Cong. Rec. H581-02 (Mar. 7, 2006) (statement of Rep. Nadler).
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Second, relevance in the context of national security investigations cannot be evaluated in a vacuum but must be considered in light of their special nature, purpose, and scope. See Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 209 (1946). Counter-terrorism investigations serve important purposes beyond the ambit of routine criminal inquiries, which ordinarily focus retrospectively on specific crimes that have already occurred and the persons known or suspected to have committed them. The key purpose of terrorism investigations, in contrast, is to prevent terrorist attacks before they occur. Hence, national security investigations often have remarkable breadth, spanning long periods of time and multiple geographic regions to identify terrorist groups, their members, intended targets, and means of attack, many of which are often unknown to the intelligence community at the outset. See CIA v. Sims, 471 U.S. 159, 171 (1985) (“foreign intelligence [gathering] consists of securing all possible data pertaining to … the national defense and security of the United States”). National security investigations thus require more far-reaching means of information-gathering to shed light on suspected terrorist organizations, their size and composition, recruitment, geographic reach, relation to foreign powers, financial resources, past acts, goals, and capacity for carrying out their plans.
When Congress codified the relevance standard under Section 215, the critical differences between the breadth and attributes of counter-terrorism investigations and routine criminal investigations were well understood. See H.R. Rep. No. 109-174(1) at 129 (statement of Rep. Lungren) (“[t]his is in the nature of trying to stop terrorists before they act, not in the nature of a regular criminal investigation … and it strikes … precisely at when a 215 order is most useful”); see also 152 Cong. Rec. S1325, 1330 (Feb. 15, 2006) (statement of Sen. Feingold). The purpose underlying the USA PATRIOT Act, and Section 215 in particular, was to provide the intelligence community the enhanced investigatory tools needed to bring terrorist activities to light before they culminate in a loss of life and property. See H.R. Rep. No. 109-
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174, pt. 2 at 4 (“many of the core enhanced authorities of the [Patriot Act] are fundamentally
intelligence authorities intended to gather information to counter threats to national security from
terrorists”); S. Rep. No. 109-85 at 40 (noting “critical” nature and “broad reach” of authority
conferred by Section 215). To achieve this core objective, the Government must have authority
to collect records that can produce information revealing previously unknown operatives and
activities, and thus detect and prevent terrorist attacks before they are launched. Limiting the
reach of Section 215 to specific records bearing directly on known terrorist threats and operatives
would inhibit the use of this authority for its intended purposes – detecting unknown terrorist
threats – and frustrate the will of Congress.14
2. Congress Has Legislatively Ratified the Construction of Section 215 as Allowing for the Bulk Collection of Telephony Metadata Records
Congress’s adoption of this expansive understanding of relevance under Section 215 is
further confirmed by the fact that Congress had already been notified of the Government’s bulk
14 When it codified Section 215’s relevance requirement, Congress simultaneously built protections into the statutory scheme not found in the other legal contexts. Section 215’s requirement for prior judicial authorization – not required for grand jury subpoenas, administrative subpoenas, or civil discovery – serves as a check on the broad investigatory powers granted to the Government in counter-terrorism investigations. For example, the Government’s authority to collect telephony metadata must be renewed by the FISC every 90 days, and, pursuant to statutory minimization requirements, the FISC’s orders require reasonable, articulable suspicion that identifiers (e.g., telephone numbers) used to query the data are associated with specific foreign terrorist organizations that have previously been identified to and approved for targeting by the Court. See Primary Order at 7. Moreover, once information is produced under a Section 215 order, the Government can retain and disseminate it only in accordance with minimization procedures reported to and approved by the Court. See 50 U.S.C. § 1861(c)(1), (g). The entire process is subject to active congressional oversight. See, e.g., id. § 1862. These multiple and interlocking layers of oversight and regulation further reflect a recognition on Congress’s part of the broad authority conferred by Section 215 to gather information “relevant” to a counter-terrorism investigation, and the need for correspondingly robust safeguards to promote responsible use of that authority.
As recent disclosures by the Government demonstrate, see n. 5, supra, this system of interactive administrative, judicial, and legislative safeguards has succeeded in identifying and correcting issues of unauthorized access to telephony metadata when they have arisen.
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collection of telephony metadata when it twice re-authorized Section 215, without change, in
2010 and 2011. Pursuant to – indeed, well beyond – FISA’s Congressional notification
requirements, see 50 U.S.C. 1871(a), the Executive Branch worked to ensure that all Members of
Congress had access to information about this program and the legal authority for it. In
December 2009, a classified briefing paper, explaining that the Government and the FISC had
interpreted Section 215 to authorize the bulk collection of telephony metadata, was provided to
the House and Senate Intelligence Committees and made available for review, as well, by all
Members of Congress, “to inform the legislative debate about reauthorization of Section 215.” 15
Additionally, the classified use of this authority has been briefed numerous times over the years
to the Senate and House Intelligence and Judiciary Committees, including in connection with
reauthorization efforts, as several Members of Congress have acknowledged.16
15 See Letter from Ronald Weich to the Hon. Silvestre Reyes (Dec. 14, 2009) (Exh. 4, hereto); Report on the [NSA’s] Bulk collection Programs for USA PATRIOT Act Reauthorization (Exh. 5, hereto). Both Intelligence Committees made this document available to all Members of Congress prior to the February 2010 reauthorization of Section 215. See Letter from Sens. Feinstein and Bond to Colleagues (Feb. 23, 2010) (Exh. 6, hereto); Letter from Rep. Reyes to Colleagues (Feb. 24, 2010) (Exh. 7, hereto); see also 156 Cong. Rec. H838 (daily ed. Feb. 25, 2010) (statement of Rep. Hastings); 156 Cong. Rec. S2109 (daily ed. Mar. 25, 2010) (statement of Sen. Wyden).
An updated version of the briefing paper, see Exhibit 8, hereto, was provided to the Senate and House Intelligence Committees again in February 2011 in connection with the reauthorization that occurred later that year. See Letter from Ronald Weich to Hon.Diane Feinstein and the Hon. Saxby Chambliss (Feb. 2, 2011) (Exh. 9, hereto); Letter from Ronald Weich to the Hon. Mike Rogers and the Hon. C.A. Dutch Ruppersberger (Feb. 2, 2011) (Exh. 10, hereto). The Senate Intelligence Committee made this updated paper available to all Senators later that month. See Letter from Sens. Feinstein and Chambliss to Colleagues (Feb. 8, 2011).
The Court may judicially notice these records and correspondence concerning the legislative history of Section 215’s reenactment. Oneida Indian Nation of N.Y. v. State of New York, 691 F.2d 1070, 1086 (2d Cir. 1982).
16 See Press Release of Sen. Select Comm. on Intelligence (June 6, 2013) (Exh. 11, hereto) (“The … use of this authority has been briefed extensively to the Senate and House Intelligence and Judiciary Committees, and detailed information has been made available to all members of Congress prior to each reauthorization of this law.”); How Disclosed NSA Programs
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After receiving these classified briefings, Congress twice reauthorized Section 215, in
2010 and again in 2011.17 “‘Congress is presumed to be aware of an administrative or judicial
interpretation of a statute and to adopt that interpretation when it re-enacts a statute without
change.’” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-40 (2009) (quoting Lorillard v.
Pons, 434 U.S. 575, 580 (1978)). That presumption is ironclad in this instance, where Congress
had actual and repeated notice of the Executive Branch’s administrative construction of Section
215 over a period of years.18 Imposing a limiting construction now on Section 215’s relevance
standard that would prohibit bulk collection of telephony metadata would be contrary to the
express understanding of the statute that Congress ratified on two separate occasions.
3. Telephony Metadata Are “Relevant” Within the Meaning of Section 215 Because Bulk Collection of the Data Enhances the Government’s Ability To Detect Terrorist Operatives and Prevent Terrorist Attacks
Acknowledging the intended scope of Section 215 is not to say that the authority it
confers is boundless. The Government’s ability to analyze telephony metadata to discover
connections between individuals fundamentally distinguishes such data from other information,
Protect Americans, and Why Disclosure Aids Our Adversaries: Hearing Before the House Perm. Select Comm. on Intelligence 2, 35, 58, 113th Cong., 1st Sess. (2013) (statements of Reps. Rogers, Langevin, and Pompeo) (Exh. 12, hereto).
17 USA PATRIOT Act – Extension of Sunsets, Pub. L. No. 111-141, § 1(a), 124 Stat. 37; PATRIOT Sunsets Extension Act of 2011, Pub. L. No. 112-14, § 2(a), 125 Stat. 216.
18 See Atkins v. Parker, 472 U.S. 115, 140 (1985) (“Congress was thus well aware of, and legislated on the basis of, the contemporaneous administrative practice . . . and must be presumed to have intended to maintain that practice absent some clear indication to the contrary”); Shell Oil, 466 U.S. at 69; Haig v. Agee, 453 U.S. 280, 297-98 (1981).
Moreover, in both 2009 and 2011, when the Senate Judiciary Committee was considering possible amendments to Section 215, it made clear that it had no intention of affecting the telephony metadata collection program. The Committee reports accompanying the USA PATRIOT Act Sunset Extension Acts of 2009 and 2011 explained that proposed changes to Section 215 were “not intended to affect or restrict any activities approved by the FISA court under existing statutory authorities.” S. Rep. No. 111-92, at 7 (2009); S. Rep. No. 112-13, at 10 (2011). Ultimately, Section 215 was extended to June 1, 2015 without change. See Patriot Sunsets Extension Act of 2011, Pub. L. No. 112-14, 125 Stat. 216 (2011).
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such as library or medical records. For example, while an identified suspect’s medical history might be relevant to an investigation of that individual, searching an aggregate database of medical records—which do not interconnect with one another—would not typically enable the Government to identify otherwise unknown relationships among individuals and organizations and thereby ascertain information about terrorist networks. Ordinarily, therefore, bulk collection of such records would not meet the “relevance” standard. See Okla. Press, 327 U.S. at 209 (explaining that “relevancy and adequacy or excess in the breadth of [a] subpoena are matters variable in relation to the nature, purposes and scope of the inquiry”).
But in light of Congress’s broad understanding of “relevance” under Section 215 as it necessarily applies to national security investigations, and Congress’s repeated, informed decisions to reauthorize the statute without change, the telephony metadata collection clearly meets the Section 215 “relevance” standard, as the judges of the FISC have repeatedly found. Collecting these data is necessary to the effective use of NSA analytical tools, which, when applied to the data, produce information that can help identify clandestine terrorist operatives or networks within the United States. That process is not feasible without bulk collection of the data, because NSA analysts cannot know in advance which of the many phone numbers obtained might have connections to known or suspected terrorists. And unless the telephony metadata are aggregated and retained for appropriate periods, it may not be feasible to identify chains of communications that cross different time periods and telecommunications networks. Thus, the telephony metadata records are “relevant” to authorized investigations of international terrorism.
B. Nothing in the Text of Section 215 Prohibits the Collection of Records “as They Are Generated”
Plaintiffs’ next contention, that Section 215 authorizes only the collection of business records “already in existence,” and not the production of records “as they are generated,” July 3, 2013, Letter at 3, is erroneous as a matter of law.
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Section 215 authorizes the FISC to direct the production of “any tangible things,” “documents,” or “records.” 50 U.S.C. § 1861(a)(1)(emphasis added). Nothing in the text of the statute suggests that FISC orders may apply only to records previously created. That requested information is not created until after a FISC order has been rendered, and is produced on an ongoing basis, does not affect its basic character as “documents,” “records,” or other “tangible things” subject to production under the statute. Nor do the FISC’s orders require the creation or preservation of documents that would otherwise not exist, or compel telecommunications service providers to retain information they would otherwise discard. For example, telephony metadata such as the information at issue here is routinely maintained by providers for at least 18 months pursuant to Federal Communications Commission regulations. See 47 C.F.R. § 42.6.
Prospective production of business records has been deemed appropriate in analogous contexts. For example, under the SCA the Government may obtain a court order requiring a provider of cell-phone service to produce non-content “record[s] or other information pertaining to a subscriber … or customer” on a specific showing of “reasonable grounds to believe that … the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(c)(1), (d). Courts including this one have held that the Government may seek prospective disclosure of records under the SCA because “the prospective … information sought by the Government … becomes a ‘historical record’ as soon as it is recorded by the provider,” and the statute “in no way limits the ongoing disclosure of records to the Government as soon as they are created.” In re Application of the United States, 632 F. Supp. 2d 202, 207 n.8 (E.D.N.Y. 2008); In re Application of the United States, 460 F. Supp. 2d 448, 459 (S.D.N.Y. 2006) (the SCA “contains no explicit limitation on the disclosure of prospective data”). Like the SCA, there is nothing in the text or legislative history of FISA indicating that Congress meant to prohibit the contemporaneous production to the Government
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of business records that are generated on a daily basis.19 Any contention otherwise fails as a matter of law. POINT IV: THE GOVERNMENT’S COLLECTION OF TELEPHONY METADATA
DOES NOT VIOLATE PLAINTIFFS’ FOURTH AMENDMENT RIGHTS Plaintiffs also fail to state a claim that the collection of telephony metadata pursuant to the FISC’s Orders violates their Fourth Amendment rights. See Compl. ¶ 37. The Supreme Court held in Smith v. Maryland, 442 U.S. 735 (1979), that there is no reasonable expectation of privacy in this exact kind of information – dialed telephone numbers – and therefore the Fourth Amendment is not implicated here. Moreover, even if the Fourth Amendment were applicable, the production of metadata ordered by the FISC would satisfy the reasonableness standard applicable to suspicionless searches that serve special government needs, in which the intrusion on privacy interests is balanced against the Government’s interest in the search. Here, the collection of metadata is minimally intrusive despite its breadth, as the data include no content, and the FISC’s Orders impose restrictions on both access to the data and their dissemination. On the other hand, the metadata collection promotes a governmental interest of the utmost importance – thwarting terrorist attacks. A. Plaintiffs Have No Fourth Amendment Privacy Interest in Telephony Metadata The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” As the Supreme Court remarked just last year, “for most of our history the
19 This type of prospective order also provides efficient administration for all parties involved—the Court, the Government, and the provider. There is little doubt that the Government could seek a new order on a daily basis for the records created within the last 24 hours, but doing so would unnecessarily burden the Court, the Government, and providers alike. Prospective orders merely ensure that the records can be sought in a reasonable manner for a reasonable period of time while avoiding unreasonable and burdensome paperwork.
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Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.” United States v. Jones, 132 S. Ct. 945, 949-50 (2012). In addition to the core concern over searches and seizures within these enumerated areas, it is now understood that a Fourth Amendment “search” takes place when the government’s investigative activities “violate a person’s ‘reasonable expectation of privacy.’” Id. (quoting Katz v. United States, 389 U.S. 347, 360 (1967)).
The Government’s collection of telephony metadata under the FISC’s Orders does not involve a “search” of individual telephone subscribers or their property. The Orders are directed to telecommunications service providers, not to subscribers, and direct the production of what are indisputably the providers’ own business records. Nor do telephone subscribers have a reasonable expectation of privacy in telephony metadata. In Smith v. Maryland, the Supreme Court held that the government’s recordation of numbers dialed from an individual’s home telephone, through a pen register installed at the telephone company’s central offices, did not constitute a search of that individual under the Fourth Amendment, because persons making telephone calls, even from their own homes, lack a reasonable expectation of privacy in the numbers they call. 442 U.S. at 741-46. In contrast to the contents of telephone calls, the Court held that there is no reasonable expectation of privacy in the telephone numbers dialed, because telephone users “typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes,” such as billing and fraud detection. Id. at 743.
Furthermore, the Court reasoned, even if a subscriber harbored a subjective expectation that the phone numbers he dialed would remain private, such an expectation of privacy would not be reasonable, because “a person has no legitimate expectation of privacy in information he
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voluntarily turns over to third parties.” Id. at 743-44. The Court explained that someone who uses a phone has “voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business,” and therefore has “assumed the risk that the company would reveal to police the numbers he dialed.” Id. at 744. Courts have followed Smith to find no reasonable expectation of privacy in email “to/from” and Internet protocol (“IP”) addressing information, United States v. Forrester, 512 F.3d 500, 510-11 (9th Cir. 2008); In re Application of the United States, 830 F. Supp. 2d at 131-38, in text message addressing information, Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 905 (9th Cir. 2008), rev’d on other grounds, 130 S. Ct. 2619 (2010), and in subscriber information, such as subscribers’ names, addresses, birthdates, and passwords, communicated to system operations and Internet service providers, Guest v. Leis, 255 F.3d 325, 335-36 (6th Cir. 2001); United States v. Kennedy, 81 F. Supp. 2d 1103, 1110 (D. Kan. 2000).
Smith is fatal to Plaintiffs’ claim that the collection of metadata records of their communications violates the Fourth Amendment. So far as metadata include such information as the times and duration of their calls and the numbers of the parties with whom they spoke, that is information that telephone subscribers voluntarily turned over to their providers. The remaining data, such as trunk identifiers, is information generated by the phone companies themselves. See Primary Order at 3 n.1. Call-detail records memorializing this information belong to the phone companies, as the parties providing the equipment and services required to make those calls possible. See United States v. Miller, 425 U.S. at 440-41 (rejecting a bank depositor’s Fourth Amendment challenge to a subpoena of bank records because, inasmuch as the bank was a party to the transactions, the records belonged to the bank). Thus, under Smith, there can be no reasonable expectation of privacy in this information, even if – as has not been alleged here – there were an understanding that the third party (i.e., the telephone company) would treat the
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information as confidential. SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 743 (1984); Miller, 425 U.S. at 443 (“the Fourth Amendment does not prohibit the obtaining of information revealed to a third party … even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”).
Plaintiffs’ July 2, 2013, pre-conference letter cites Jones for the proposition that metadata collection “over long periods” constitutes a Fourth Amendment search, but Jones is inapplicable here. Jones held that “the Government’s installation of a GPS [tracking] device on a [targeted individual’s] vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’” 132 S. Ct. at 949. The Court reached that conclusion on the basis of considerations that are entirely absent here – namely, attachment of a tracking device to an individual’s vehicle to collect track his whereabouts, thus effecting a physical intrusion on that person’s “effects,” one of the spheres that the Fourth Amendment explicitly enumerates as protected. Id. (“It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information”). The collection of telephony metadata, unlike affixing a GPS device to a vehicle, does not involve any trespass or other intrusion on Plaintiffs’ property, or tracking of locations from which telephone calls are made.
Moreover, contrary to Plaintiffs’ contentions, the majority in Jones expressly disclaimed reliance on the duration of the monitoring (a factor on which the court below had relied, see United States v. Maynard, 615 F.3d 544, 558 (D.C. Cir. 2010), aff’d on other grounds sub nom. United States v. Jones, 132 S. Ct. 945 (2012)), as a basis for concluding that a search had occurred. 132 S. Ct. at 954; see also United States v. Anderson-Bagshaw, 2012 WL 774964, at *2 (N.D. Ohio. Mar. 8, 2012) (“The [Jones] majority limited its analysis to the trespassory nature of the GPS installation, refusing to establish some point at which uninterrupted surveillance might become constitutionally problematic.”).
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Nor does the scope of the metadata collection under the FISC’s Orders alter the Fourth Amendment analysis. Fourth Amendment rights “are personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched.” Steagald v. United States, 451 U.S. 204, 219 (1981); accord, e.g., Minnesota v. Carter, 525 U.S. 83, 88 (1998) (a person “claim[ing] the protection of the Fourth Amendment … must demonstrate that he personally has an expectation of privacy in the place searched”); Rakas v. Illinois, 439 U.S. 128, 133-34 (1978) (Fourth Amendment rights are personal rights which may not be vicariously asserted). No Fourth Amendment-protected interest of Plaintiffs is implicated, therefore, by virtue of the fact that the metadata records of many other individuals’ calls are collected as well as their own. See In re Grand Jury Proceedings, 827 F.2d 301, 305 (8th Cir. 1987) (rejecting argument that a subpoena was unreasonable under the Fourth Amendment because it “may make available to the grand jury [money transfer] records involving hundreds of innocent people”); United States v. Rigmaiden, 2013 WL 1932800, at * 13 (D. Ariz. May 8, 2013) (Government did not violate defendant’s Fourth Amendment rights by acquiring a high volume (1.8 million) of IP addresses).
B. The Government’s Acquisition of Metadata Is Reasonable Even if collecting telephony metadata involved a Fourth Amendment “search” (it does not), the Fourth Amendment bars only “unreasonable” searches and seizures, whereas the collection of metadata at issue here is reasonable under the standard the Supreme Court applies to assess suspicionless searches that serve special government needs. That standard requires a court to balance “the promotion of legitimate governmental interests against the degree to which [the search] intrudes upon an individual’s privacy.” Maryland v. King, 133 S. Ct. 1958, 1970 (2013) (internal citation and quotation marks omitted); see also Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53 (1995). That balance overwhelmingly favors the Government here.
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First, if, contrary to Smith, Plaintiffs could be said to have any Fourth Amendment privacy interest that is implicated by collection of non-content telephony metadata, that interest would be minimal. Moreover, the intrusion on that interest would be mitigated still further by the statutorily mandated restrictions on access to and dissemination of the metadata that are written into the FISC’s Primary Order, at 4-14. See King, 133 S. Ct. at 1979 (safeguards limiting DNA analysis to identification information alone reduced any intrusion into privacy); Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 833 (2002) (restrictions on access to drug testing results lessened intrusion on privacy); Vernonia Sch. Dist., 515 U.S. at 658 (intrusion of urine-testing on student athletes’ privacy was significantly reduced by the fact that they were tested only for illegal drugs and not for any medical condition).
On the other side of the balance, the collection and analysis of telephony metadata promotes overriding public interests. The Government’s interest in identifying and tracking terrorist operatives for the purpose of preventing terrorist attacks is a national security concern of overwhelming importance. See Haig, 453 U.S. at 307 (“no governmental interest is more compelling than the security of the Nation.”) (internal quotation marks omitted); In re Directives, 551 F.3d 1004, 1012 (FISC-R 2008) (“the relevant governmental interest – the interest in national security – is of the highest order of magnitude.”); United States v. Smith, 426 F.3d 567, 573 (2d Cir. 2005). Bulk collection of telephony metadata is a “reasonably effective means” of promoting the Government’s national security objectives, Earls, 536 U.S. at 837, inasmuch as accumulating metadata enhances the Government’s ability to uncover and monitor unknown terrorist operatives who could otherwise elude detection.20 Given that the Government’s
20 The Government need not show that it is using the least intrusive means available to accomplish its goal, id.; United States v. Martinez-Fuerte, 428 U.S. 543, 556 n. 12 (1976), and a low percentage of positive outcomes among the total number of searches or seizures does not render a program ineffective. See Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 454 (1990)
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collection of metadata serves exceedingly important public interests, with minimal, if any, intrusion on the privacy of telephone subscribers, it would be constitutional even if the Fourth Amendment’s reasonableness standard applied.
For these reasons, the Plaintiffs’ Fourth Amendment claim should be dismissed. POINT V: PLAINTIFFS HAVE NOT PLAUSIBLY ALLEGED THAT THE
GOVERNMENT’S COLLECTION OF TELEPHONY METADATA VIOLATES THE FIRST AMENDMENT Plaintiffs’ final claim, that FISC-authorized collection of telephony metadata violates the First Amendment, Compl. ¶ 38, perishes in the wake of their failed Fourth Amendment claim. The law is clear that governmental investigations conducted in observance of Fourth Amendment requirements, without purpose to deter or penalize protected expression or association, do not violate the First Amendment. Plaintiffs do not allege that the Government’s collection of telephony metadata is intended for any purpose other than to identify terrorist operatives, and prevent terrorist attacks. Accordingly, their First Amendment claim should be dismissed. A. Plaintiffs’ Failure to Allege an Actionable Fourth Amendment
Claim Is Also Fatal to Their First Amendment Claim Plaintiffs allege the same injury in support of their First Amendment claim as their Fourth Amendment claim: that telephony metadata collected under the FISC’s Orders gives the Government the wherewithal to piece together “a comprehensive record” of “sensitive” information about Plaintiffs and their associations that is “likely to have a chilling effect on people who would otherwise contact Plaintiffs” for purposes related to Plaintiffs’ organizational mission. Compl. ¶¶ 1, 3, 35. Thus, Plaintiffs’ putative First Amendment claim is at best
(detention of 126 vehicles entering a highway sobriety checkpoint resulted in arrest of two drunken drivers); Martinez-Fuerte, 428 U.S. at 554 (out of 146,000 vehicles passing through border checkpoint, 171 were found to contain deportable aliens). Government officials are given a degree of latitude and deference in choosing among reasonable alternatives in structuring a program involving suspicionless search or seizure. Sitz, 496 U.S. at 453-54.
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derivative of their Fourth Amendment claim. See, e.g., ACLU v. NSA, 493 F.3d 644, 657 (6th Cir. 2007) (opinion of Batchelder, J.) (observing that plaintiffs who challenged alleged warrantless wiretapping by NSA on various constitutional grounds “have only one claim, namely, breach of privacy, based on a purported violation of the Fourth Amendment or FISA … On a straightforward reading, this claim does not implicate the First Amendment.”).
The Supreme Court and every court of appeals to consider the issue have concluded that when governmental investigative activities have an impact on the exercise of First Amendment freedoms, those interests are safeguarded by adherence to Fourth Amendment standards. See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978); United States v. Mayer, 503 F.3d 740, 747-48 (9th Cir. 2007).21 Accordingly, “surveillance consistent with Fourth Amendment protections . . . does not violate First Amendment rights, even though it may be directed at communicative or associative activities.” Gordon v. Warren Consol. Bd. of Educ., 706 F.2d 778, 781 n.3 (6th Cir. 1983) (collecting cases).22 Inasmuch as Plaintiffs have failed to state a claim under the Fourth Amendment, this precedent alone requires dismissal of Plaintiffs’ First Amendment claim, too. Reporters Comm., 593 F.2d at 1059; see also Mayer, 503 F.3d 750 (similar); United States v. Gering, 716 F.2d 615, 620 (9th Cir. 1983) (rejecting surveilled party’s argument that First Amendment afforded him an expectation of privacy where the Fourth Amendment would not); ACLU v. NSA, 493 F.3d at 657 (similar).
21 See also Redd v. City of Enter., 140 F.3d 1378, 1383 (11th Cir. 1998); Reporters Comm. for Freedom of the Press v. AT&T, 593 F.2d 1030, 1055-59 (D.C. Cir. 1978); Jabara v. Kelley, 476 F. Supp. 561, 572 (E.D. Mich. 1979) (the First and Fourth Amendments “provide coextensive zones of privacy in the context of a good faith criminal investigation,” including warrantless electronic surveillance), vacated on other grounds, 691 F.2d 272 (6th Cir. 1982).
22 See Mayer, 503 F.3d at 750 (same); ACLU Found. of S. Cal. v. Barr, 952 F.2d 457, 471 (D.C. Cir. 1991) (same in context of FISA surveillance). See also United States v. Ramsey, 431 U.S. 606, 623-24 (1977) (where mail is subject to inspection by customs officers only when they have “reasonable cause to suspect” it contains something other than correspondence, and the correspondence may not be read absent a warrant, the First Amendment is not violated).
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B. Plaintiffs Make No Allegations That the Government’s Collection of Telephony Metadata Is Intended to Curtail Protected Expressive or Associational Activity_________
Plaintiffs’ First Amendment claim is also subject to dismissal because it is based solely on the alleged incidental effects of good-faith investigatory conduct. “Not every Government action that affects, has an impact on, or indeed inhibits First Amendment activity constitutes the kind of ‘abridgement’ condemned by the First Amendment.” Reporters Comm., 593 F.2d at 1052; see also City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 803-04 (1984). Courts have long recognized the need, even when summoned to action in the name of constitutionally protected rights, to accommodate the Government’s competing interests where prevention of crime, or, even more imperatively, potential threats to national security are concerned. See, e.g., Socialist Workers Party v. Attorney General, 510 F.2d 253, 256 (2d Cir. 1974) (“The FBI has a right, indeed a duty, to keep itself informed with respect to the possible commission of crimes; it is not obliged to wear blinders until it may be too late for prevention.”).
Accordingly, courts distinguish for purposes of First Amendment analysis between government investigations that may have the incidental effect of deterring First Amendment activity, and concrete government action of a regulatory, proscriptive, compulsory, or intrusive nature that is specifically directed against individuals or organizations based on their expressive or associational activities. See, e.g., Zurcher, 436 U.S. at 564; Laird, 408 U.S. at 11; Reporters Comm., 593 F.2d at 1051-55. Otherwise lawful investigative activities conducted in good faith—that is, “not for the purpose of abridging first amendment freedoms,” United States v. Aguilar, 883 F.2d 662, 705 (9th Cir. 1989)—do not violate the First Amendment. See Reporters Comm., 593 F.2d at 1051 (concluding that First Amendment protects activities “subject to the general and incidental burdens that arise from good faith enforcement of otherwise valid criminal and civil laws that are not themselves solely directed” at First Amendment conduct).
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Here, Plaintiffs advance no claim that the Government’s collection and analysis of telephony metadata has any objective other than furthering the compelling national interest in identifying and tracking terrorist operatives and ultimately thwarting terrorist attacks. The Complaint certainly contains no allegations, well-pled or otherwise, from which it could plausibly be concluded that the Government’s collection of non-content telephony metadata is aimed at curtailing any First Amendment expressive or associational activities. To the contrary, the Complaint’s allegations regarding the authorized breadth of the collection, Compl. ¶¶ 30-34, highlight the fact that it is undertaken without targeting Plaintiffs or any other persons, and without reference to anyone’s conduct protected by the First Amendment. Plaintiffs have thus failed to state a First Amendment claim that plausibly gives rise to an entitlement to relief. Iqbal, 556 U.S. at 678-79; see Reporters Comm., 593 F.2d at 1052 (“[T]he Government’s good faith inspection of [telephone] toll call records does not infringe on plaintiffs’ First Amendment rights, because that Amendment guarantees no freedom from such investigation.”).
CONCLUSION For the reasons stated above, the Court should dismiss the complaint.
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Dated: New York, New York August 26, 2013
STUART F. DELERY Assistant Attorney General
JOSEPH H. HUNT Director
ANTHONY J. COPPOLINO Deputy Director
By: /s/ James Gilligan JAMES J. GILLIGAN Special Litigation Counsel
MARCIA BERMAN Senior Trial Counsel
BRYAN DEARINGER Trial Attorney
Civil Division, Federal Programs Branch U.S. Department of Justice 20 Massachusetts Avenue, N.W. Washington, DC 20001 Tel.: (202) 514-3358

PREET BHARARA United States Attorney for the Southern District of New York Attorney for Defendants
By: /s/ David S. Jones DAVID S. JONES TARA M. La MORTE JOHN D. CLOPPER CHRISTOPHER HARWOOD Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 Tel. (212) 6372739/2746/2716/2728 Fax (212) 637-2730 david.jones6@usdoj.gov tara.lamorte2@usdoj.gov john.clopper@usdoj.gov christopher.harwood@usdoj.gov

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 Case 1:13-cv-03994-WHP Document 26 Filed 08/26/13 Page 1 of 48

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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

No. 13-cv-03994 (WHP) ECF CASE

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Case 1:13-cv-03994-WHP Document 26 Filed 08/26/13 Page 2 of 48
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii Introduction..................................................................................................................................... 1 Legal and Factual Background ....................................................................................................... 2
I. The Foreign Intelligence Surveillance Act ......................................................................... 2 II. The Mass Call-Tracking Program....................................................................................... 5 III. Collection of Plaintiffs’ Call Records................................................................................. 7 ARGUMENT .................................................................................................................................. 8 I. Plaintiffs are likely to succeed on the merits. ..................................................................... 8
A. The government’s long-term recording and aggregation of Plaintiffs’ telephony metadata is not authorized by statute. ............................................................ 8
B. The government’s long-term recording and aggregation of Plaintiffs’ telephony metadata violates the Fourth Amendment.................................................... 16
1. The government’s long-term recording and aggregation of telephony metadata constitutes a search under the Fourth Amendment. ................................... 16
2. The government’s long-term recording and aggregation of telephony metadata is unreasonable. .......................................................................................... 23
i. The mass call-tracking program involves warrantless searches, which are per se unreasonable. ............................................................................. 23
ii. The government’s long-term recording and aggregation of telephony metadata is unreasonable...................................................................... 24
C. The government’s long-term recording and aggregation of Plaintiffs’ telephony metadata violates the First Amendment. ...................................................... 29
1. Courts apply “exacting scrutiny” to investigative practices that significantly burden First Amendment rights. ........................................................... 29
2. The mass call-tracking program substantially burdens Plaintiffs’ First Amendment rights. .................................................................................................... 31
3. The mass call-tracking program fails “exacting scrutiny” because it is an unduly broad means of seeking foreign-intelligence information. ....................... 34
II. Plaintiffs will suffer irreparable injury if preliminary relief is withheld. ......................... 36 CONCLUSION............................................................................................................................. 39
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TABLE OF AUTHORITIES Cases al Kidd v. Gonzales, No. 1:05-CV-093-EJL-MHW, 2012 WL 4470776 (D. Idaho
Sept. 27, 2012) ............................................................................................................................ 8 Bates v. City of Little Rock, 361 U.S. 516 (1960) ................................................................... 30, 32 BedRoc Ltd. v. United States, 541 U.S. 176 (2004)...................................................................... 16 Berger v. New York, 388 U.S. 41 (1967) ............................................................................... passim Bond v. United States, 529 U.S. 334 (2000) ................................................................................. 23 Bowman Dairy Co. v. United States, 341 U.S. 214 (1951) .......................................................... 11 Bray v. City of N.Y., 346 F. Supp. 2d 480 (S.D.N.Y. 2004) (Pauley, J.) ...................................... 37 Brigham City v. Stuart, 547 U.S. 398 (2006)................................................................................ 24 Bronx Household of Faith v. Bd. of Educ. of City of N.Y., 331 F.3d 342 (2d Cir.
2003) ......................................................................................................................................... 37 Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972) ............................................................... 36 Cessante v. City of Pontiac, No. CIV. A. 07-CV-15250, 2009 WL 973339 (E.D.
Mich. Apr. 9, 2009) .................................................................................................................. 12 Chandler v. Miller, 520 U.S. 305 (1997) ...................................................................................... 27 Cheney v. U.S. Dist. Court, 542 U.S. 367 (2004) ......................................................................... 11 Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598
F.3d 30 (2d Cir. 2010) ................................................................................................................ 8 Clark v. Library of Cong., 750 F.2d 89 (D.C. Cir. 1984) ................................................. 29, 30, 34 Clark v. Martinez, 543 U.S. 371 (2005) ....................................................................................... 16 Covino v. Patrissi, 967 F.2d 73 (2d Cir. 1992)............................................................................. 37 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) ........................................................ 10 Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328 (5th Cir. 1981) ............................ 38 Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004)................................................................ 31 Ealy v. Littlejohn, 569 F.2d 219 (5th Cir. 1978)..................................................................... 12, 30
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Case 1:13-cv-03994-WHP Document 26 Filed 08/26/13 Page 4 of 48
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568 (1988).................................................................................................................. 16
Elrod v. Burns, 427 U.S. 347 (1976) ............................................................................................ 30 FEC v. Larouche Campaign, Inc., 817 F.2d 233 (2d Cir. 1987) .................................................. 31 Ferguson v. City of Charleston, 532 U.S. 67 (2001) .................................................................... 23 Florida v. Jardines, 133 S. Ct. 1409 (2013) ................................................................................. 23 Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539 (1963) .................................. 31, 32 Groh v. Ramirez, 540 U.S. 551 (2004) ........................................................................................... 8 Hale v. Henkel, 201 U.S. 43 (1906) .............................................................................................. 12 Hirschfeld v. Stone, 193 F.R.D. 175 (S.D.N.Y. 2000) (Pauley, J.)............................................... 37 Illinois v. Lidster, 540 U.S. 419 (2004) ........................................................................................ 24 In re Application for Pen Register & Trap/Trace Device with Cell Site Location
Auth., 396 F. Supp. 2d 747 (S.D. Tex. 2005) ........................................................................... 15 In re Application of the U.S. for an Order Authorizing the Disclosure of Cell Site
Location Info., No. 6:08-6038M-REW, 2009 WL 8231744 (E.D. Ky. Apr. 17, 2009) ......................................................................................................................................... 15 In re Fontaine, 402 F. Supp. 1219 (E.D.N.Y. 1975) .................................................................... 13 In re Grand Jury Proceedings, 486 F.2d 85 (3d Cir. 1973) ......................................................... 13 In re Grand Jury Proceedings, 776 F.2d 1099 (2d Cir. 1985) ............................................... 29, 34 In re Grand Jury Proceedings, 863 F.2d 667 (9th Cir. 1988) ...................................................... 36 In re Grand Jury Subpoena Duces Tecum Dated Nov. 15, 1993, 846 F. Supp. 11 (S.D.N.Y. 1994) ........................................................................................................................ 12 In re Grand Jury Subpoena, 701 F.2d 115 (10th Cir. 1983) .................................................. 34, 36 In re Horowitz, 482 F.2d 72 (2d Cir. 1973) ............................................................................ 11, 12 In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002) ......................................................... 27, 28 In re Six Grand Jury Witnesses, 979 F.2d 939 (2d Cir. 1992)...................................................... 11 In re Stoltz, 315 F.3d 80 (2d Cir. 2002) ........................................................................................ 14
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Case 1:13-cv-03994-WHP Document 26 Filed 08/26/13 Page 5 of 48
Katz v. United States, 389 U.S. 347 (1967) .................................................................................. 23 Kyllo v. United States, 533 U.S. 27 (2001) ............................................................................. 17, 23 Lamont v. Postmaster Gen., 381 U.S. 301 (1965) ........................................................................ 33 Ligon v. City of N.Y., No. 12 Civ. 2274, 2013 WL 628534 (S.D.N.Y. Feb. 14,
2013) ......................................................................................................................................... 37 Local 1814, Int’l Longshoremen’s Ass’n v. Waterfront Comm’n of N.Y. Harbor,
667 F.2d 267 (2d Cir. 1981) ................................................................................... 30, 31, 33, 36 Marcus v. Search Warrants, 367 U.S. 717 (1961)........................................................................ 30 Mastrovincenzo v. City of N.Y., 435 F.3d 78 (2d Cir. 2006)........................................................... 8 McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995).................................................... 31, 33 Mitchell v. Cuomo, 748 F.2d 804 (2d Cir. 1984) .......................................................................... 37 Mullins v. City of N.Y., 634 F. Supp. 2d 373 (S.D.N.Y. 2009) ..................................................... 39 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) ............................................ 31, 32, 34 Nat’l Commodity & Barter Ass’n v. Archer, 31 F.3d 1521 (10th Cir. 1994) ............................... 29 Paton v. La Prade, 469 F. Supp. 773 (D.N.J. 1978)..................................................................... 31 Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989)............................. 34 Public Serv. Co. of N.H. v. Town of W. Newbury, 835 F.2d 380 (1st Cir. 1987) ......................... 37 Resolution Trust Corp. v. Dabney, 73 F.3d 262 (10th Cir. 1995) ................................................ 11 Samson v. California, 547 U.S. 843 (2006) .................................................................................. 24 Slevin v. City of N.Y., 477 F. Supp. 1051 (S.D.N.Y. 1979) .......................................................... 38 Smith v. Maryland, 442 U.S. 735 (1979) ...................................................................................... 21 Stanford v. Texas, 379 U.S. 476 (1965) .......................................................................................... 2 Statharos v. N.Y. City Taxi & Limousine Comm’n, 198 F.3d 317 (2d Cir. 1999) ........................ 37 Tabbaa v. Chertoff, 509 F.3d 89 (2d Cir. 2007) ........................................................................... 30 Talley v. California, 362 U.S. 60 (1960) ...................................................................................... 33 United States v. Abu Jihaad, 630 F.3d 102 (2d Cir. 2010) ............................................................. 8
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Case 1:13-cv-03994-WHP Document 26 Filed 08/26/13 Page 6 of 48
United States v. Bobo, 477 F.2d 974 (4th Cir. 1973).............................................................. 25, 28 United States v. Cafero, 473 F.2d 489 (3d Cir. 1973) ............................................................ 27, 28 United States v. Cavanagh, 807 F.2d 787 (9th Cir. 1987)............................................................ 27 United States v. Citizens Bank, 612 F.2d 1091 (8th Cir. 1980) .................................................... 36 United States v. Clark, 638 F.3d 89 (2d Cir. 2011) ........................................................................ 8 United States v. Duggan, 743 F.2d 59 (2d Cir. 1984) .................................................................. 27 United States v. Gordon, 236 F.2d 916 (2d Cir. 1956)........................................................... 17, 28 United States v. Head, 416 F. Supp. 840 (S.D.N.Y. 1976)........................................................... 38 United States v. Jones, 132 S. Ct. 945 (2012)........................................................................ passim United States v. Karo, 468 U.S. 705 (1984) ................................................................................. 23 United States v. Knotts, 460 U.S. 276 (1983) ............................................................................... 22 United States v. Menasche, 348 U.S. 528 (1955) ......................................................................... 10 United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987)................................................................ 27 United States v. Powell, 379 U.S. 48 (1964) .................................................................... 11, 13, 30 United States v. R. Enters., Inc., 498 U.S. 292 (1991).................................................................. 10 United States v. Rahman, 861 F. Supp. 247 (S.D.N.Y. 1994) ........................................................ 8 United States v. Tortorello, 480 F.2d 764 (2d Cir. 1973) ....................................................... 27, 28 United States v. U.S. Dist. Court (Keith), 407 U.S. 297 (1972) ................................... 2, 21, 26, 29 United States v. Westinghouse Elec. Corp., 788 F.2d 164 (3d Cir. 1986).................................... 11 Virginia v. Moore, 553 U.S. 164 (2008) ....................................................................................... 25 Zurcher v. Stanford Daily, 436 U.S. 547 (1978) .......................................................................... 30 Statutes 18 U.S.C. § 2709........................................................................................................................... 35 18 U.S.C. § 3122........................................................................................................................... 35 18 U.S.C. § 3125........................................................................................................................... 35
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50 U.S.C. § 1803............................................................................................................................. 3 50 U.S.C. § 1806............................................................................................................................. 8 50 U.S.C. § 1842..................................................................................................................... 14, 35 50 U.S.C. § 1861.................................................................................................................... passim 50 U.S.C. § 1861 (2000 ed.) ........................................................................................................... 3 50 U.S.C. § 1862 (2000 ed.) ........................................................................................................... 3 Intelligence Authorization Act for Fiscal Year 2002, Pub. L. 107-108 (2001) .............................. 3 Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56.................................................. 3 USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. 109-177
(2006).......................................................................................................................................... 3 Other Authorities 157 Cong. Rec. S3386 (daily ed. May 26, 2011)............................................................................ 4 157 Cong. Rec. S3389 (daily ed. May 26, 2011)............................................................................ 4 Administration White Paper: Bulk Collection of Telephony Metadata Under
Section 215 of the USA PATRIOT Act (Aug. 9, 2013) (“White Paper”) ........................... passim Dep’t of Justice, Report on the National Security Agency’s Bulk Collection
Programs for USA PATRIOT Act Reauthorization (Feb. 2, 2011)......................................... 6, 7 Dep’t of Justice, USA PATRIOT Act: Myth vs. Reality, http://1.usa.gov/14nej54 ....................... 13 Edith Ramirez, Chairwoman, Fed. Trade Comm’n, Keynote Address at the
Technology Policy Institute Aspen Forum (Aug. 19, 2013)..................................................... 21 Ellen Nakashima & Joby Warrick, For NSA Chief, Terrorist Threat Drives
Passion to ‘Collect It All,’ Observers Say, Wash. Post, July 14, 2013 .................................... 28 Ellen Nakashima, Call Records of Fewer Than 300 People Were Searched in
2012, U.S. Says, Wash. Post, June 15, 2013............................................................................. 34 Frank Newport, Americans Disapprove of Government Surveillance Programs,
Gallup Politics, June 12, 2013 .................................................................................................. 17 George Orwell, Freedom and Happiness, Tribune, Jan. 4, 1946 ................................................. 17
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Jennifer Valentino-Devries & Siobhan Gorman, Secret Court’s Redefinition of ‘Relevant’ Empowered Vast NSA Data-Gathering, Wall St. J., July 8, 2013 .......................... 24
Letter from Peter J. Kadzik, Principal Deputy Assistant Att’y Gen., Dep’t of Justice, to Rep. F. James Sensenbrenner, Jr. (July 16, 2013) ................................................... 10
Memorandum Opinion, [Title Redacted], No. 11 BR [Dkt. No. Redacted] (FISA Ct. Oct. 3, 2011) (Bates, J.) ...................................................................................................... 15
Morgan Cloud, Searching Through History; Searching For History, 63 U. Chi. L. Rev. 1707 (1996) ...................................................................................................................... 23
Neil M. Richards, The Dangers of Surveillance, 126 Harv. L. Rev. 1934 (2013) ....................... 17
Office of the Dir. of Nat’l Intelligence, DNI Statement on Recent Unauthorized Disclosures of Classified Information (June 6, 2013) ................................................................ 5
Office of the Dir. of Nat’l Intelligence, Foreign Intelligence Surveillance Court Renews Authority to Collect Telephony Metadata (July 19, 2013) ............................................ 5
Oversight of the Administration’s Use of FISA Authorities: Hearing Before the H. Comm. on the Judiciary, 113th Cong. (July 17, 2013) (“HJC Hearing”)....................... 9, 12, 14
Oxford American Dictionary (3d ed. 2010) .................................................................................... 9
Pew Research, Few See Adequate Limits on NSA Surveillance Program, July 26, 2013 .......................................................................................................................................... 17
Press Release, Office of Sen. Ron Wyden, Wyden Statement on Alleged LargeScale Collection of Phone Records, June 6, 2013 .................................................................... 17
Press Release, Office of Sen. Ron Wyden, Wyden, Udall Question the Value and Efficacy of Phone Records Collection in Stopping Attacks, June 7, 2013................................ 35
Primary Order, In re Application of the FBI for an Order Requiring the Production of Tangible Things from [Redacted], No. BR 13-80 (FISA Ct. Apr. 25, 2013) (“Primary Order”)....................................................................................................... 6
Rep. Jim Sensenbrenner, How Secrecy Erodes Democracy, Politico, July 22, 2013 ..................... 9
S. Rep. No. 95-604 (1977), reprinted in 1978 U.S.C.C.A.N. 3904................................................ 3
Secondary Order, In re Application of the FBI for an Order Requiring the Production of Tangible Things from Verizon Bus. Network Servs., Inc. on Behalf of MCI Commc’n Servs., Inc. d/b/a Verizon Bus. Servs., No. BR 13-80 (FISA Ct. Apr. 25, 2013) (“Secondary Order”).............................................................. 5, 6, 7, 8
Siobhan Gorman & Julian E. Barnes, Officials: NSA Doesn’t Collect CellphoneLocation Records, Wall St. J., June 16, 2013 ............................................................................. 7 vii

Case 1:13-cv-03994-WHP Document 26 Filed 08/26/13 Page 9 of 48 The Lives of Others (Sony Pictures Classics 2006) ...................................................................... 17 Webster’s Collegiate Dictionary (11th ed. 2012) ........................................................................... 9 Rules Fed. R. Crim. P. 17(c) ................................................................................................................... 35 FISC R. P. 17 .................................................................................................................................. 3 FISC R. P. 62 .................................................................................................................................. 3
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Introduction The National Security Agency (“NSA”) has for seven years kept a record of every phone call made or received in the United States. The surveillance is ongoing. Each time a resident of the United States makes a phone call, the NSA records whom she called, when the call was placed, and how long the conversation lasted. The NSA keeps track of when she called the doctor, and which doctor she called; which family members she called, and which she didn’t; which pastor she called, and for how long she spoke to him. It keeps track of whether, how often, and precisely when she called the abortion clinic, the support group for alcoholics, the psychiatrist, the ex-girlfriend, the criminal-defense lawyer, the fortune teller, the suicide hotline, the child-services agency, and the shelter for victims of domestic violence. The NSA keeps track of the same information for each of her contacts, and for each of their contacts. The data collected under the program supplies the NSA with a rich profile of every citizen as well as a comprehensive record of citizens’ associations with one another. Plaintiffs are civil-liberties organizations whose communications are particularly sensitive. Plaintiffs’ employees routinely talk by phone with clients and potential clients about legal representation in suits against the government. Often, even the mere fact that Plaintiffs have communicated with these individuals is sensitive or confidential. Plaintiffs regularly receive calls from, among others, prospective whistleblowers seeking legal counsel and government employees who fear reprisal for their political views. The NSA has acknowledged that it is tracking all of these calls. This surveillance invades Plaintiffs’ privacy, threatens to dissuade potential clients and others from contacting them, and compromises their ability to serve their clients’ interests and their institutional missions. Plaintiffs filed suit on June 11, 2013, contending that the NSA’s ongoing tracking of their phone calls exceeds statutory authority and violates the First and Fourth Amendments. They
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seek, among other things, an injunction permanently enjoining the mass call-tracking program and requiring the government to purge from its possession all of Plaintiffs’ call records already collected. Plaintiffs now move this Court for a preliminary injunction that, during the pendency of this suit, (i) bars the government from collecting their call records under the program, (ii) requires the government to quarantine all of their call records already collected under the program, and (iii) prohibits the government from querying metadata obtained through the program using any phone number or other identifier associated with them.
Plaintiffs will suffer irreparable injury if preliminary relief is not granted, and they are substantially likely to succeed on the merits of their claims. The mass call-tracking program is ostensibly based on Section 215 of the Patriot Act but the program disregards that provision’s core requirements, including its “relevance” requirement. The program violates the Fourth Amendment because the surveillance carried out is warrantless and unreasonable, and it violates the First Amendment because it substantially and unjustifiably burdens Plaintiffs’ associational rights when more narrow methods could be used to achieve the government’s ends. Indeed, the mass call-tracking program is perhaps the largest surveillance operation ever carried out by a democratic government against its own citizens. Preliminary relief is appropriate and necessary. Cf. Stanford v. Texas, 379 U.S. 476, 483 (1965) (citing eighteenth-century decision overturning a “ridiculous warrant against the whole English nation”).
Legal and Factual Background I. The Foreign Intelligence Surveillance Act
In 1978, Congress enacted the Foreign Intelligence Surveillance Act (“FISA”) to regulate government surveillance conducted for foreign-intelligence purposes. Congress adopted FISA after the Supreme Court held, in United States v. U.S. District Court (Keith), 407 U.S. 297 (1972), that the Fourth Amendment does not permit warrantless surveillance in intelligence
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investigations of domestic security threats. FISA was a response to that decision and to years of in-depth congressional investigation that revealed that the executive branch had engaged in widespread warrantless surveillance of U.S. citizens—including journalists, activists, and members of Congress—“who engaged in no criminal activity and who posed no genuine threat to the national security.” S. Rep. No. 95-604, pt.1, at 8 (1977), reprinted in 1978 U.S.C.C.A.N. 3904, 3909 (quotation marks omitted).
In enacting FISA, Congress created the Foreign Intelligence Surveillance Court (“FISC”) and empowered it to grant or deny government applications for surveillance orders in foreignintelligence investigations. See 50 U.S.C. § 1803(a). The FISC meets in secret, generally hears argument only from the government, and rarely publishes its decisions. See, e.g., FISC R. P. 17(b), 62, http://www.uscourts.gov/uscourts/rules/FISC2010.pdf.
The provision at issue in this case was originally added to FISA in 1998. See 50 U.S.C. §§ 1861–1862 (2000 ed.). In its original form, it permitted the government to compel the production of certain records in foreign-intelligence or international-terrorism investigations from common carriers, public-accommodation facilities, storage facilities, and vehicle rental facilities. Id. § 1862 (2000 ed.). The government was required to include in its application to the FISC “specific and articulable facts giving reason to believe that the person to whom the records pertain[ed] [was] a foreign power or an agent of a foreign power.” Id.
The Patriot Act and several successor bills modified that provision in several respects.1 In its current form, the statute—commonly referred to as Section 215—allows the government to
1 The “Patriot Act” is the name customarily used to refer to the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56. See also Intelligence Authorization Act for Fiscal Year 2002, Pub. L. 107108 (2001); USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. 109-177 (2006).
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obtain an order requiring the production of “any tangible things” upon a “showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) . . . to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” Id. § 1861(b)(2)(A). The provision deems certain kinds of tangible things “presumptively relevant.”2
While the amendments to this provision expanded the government’s investigative power, this expansion was not without limits. Language added by the Patriot Act prohibits the government from using the provision to obtain tangible things that could not be obtained through analogous mechanisms. It states: “An order under this subsection . . . may only require the production of a tangible thing if such thing can be obtained with a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation or with any other order issued by a court of the United States directing the production of records or tangible things.” Id. § 1861(c)(2)(D).
Until recently, the public knew little about the government’s use of Section 215. In 2011, Senators Ron Wyden and Mark Udall, both of whom sit on the Senate Select Committee on Intelligence, stated publicly that the government had adopted a “secret interpretation” of Section 215, and predicted that Americans would be “stunned,” “angry,” and “alarmed” when they learned of it.3 Their efforts to make more information available to the public, however, were
2 See 50 U.S.C. § 1861(b)(2)(A) (deeming tangible things “presumptively relevant to an authorized investigation” if they pertain to “a foreign power or an agent of a foreign power”; “the activities of a suspected agent of a foreign power who is the subject of such authorized investigation”; or “an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation”).
3 157 Cong. Rec. S3386 (daily ed. May 26, 2011) (statement of Sen. Ron Wyden); 157 Cong. Rec. S3389 (daily ed. May 26, 2011) (statement of Sen. Mark Udall).
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largely unsuccessful, as were parallel efforts by Plaintiffs and others under the Freedom of Information Act. Ordinary citizens who wanted to understand the government’s surveillance policies were entirely reliant on the government’s own statements about them, and those statements were sometimes misleading or false. See, e.g., Glen Kessler, James Clapper’s “Least Untruthful” Statement to the Senate, Wash. Post, June 12, 2013, http://wapo.st/170VVSu (discussing statement by the Director of National Intelligence indicating, falsely, that government was not collecting information about millions of Americans). II. The Mass Call-Tracking Program
On June 5, 2013, The Guardian disclosed a previously secret FISC order, labeled a “Secondary Order,” directing Verizon Business Network Services (“Verizon”) to produce to the NSA “on an ongoing daily basis . . . all call detail records or ‘telephony metadata’” relating to every domestic and international call placed on its network between April 25, 2013 and July 19, 2013.4 The Secondary Order specified that telephony metadata includes, for each phone call, the originating and terminating telephone number as well as the call’s time and duration. Secondary Order at 2. On the day the Secondary Order expired, the Director of National Intelligence issued a statement indicating that the FISC had renewed it. Office of the Dir. of Nat’l Intelligence, Foreign Intelligence Surveillance Court Renews Authority to Collect Telephony Metadata (July 19, 2013), http://1.usa.gov/12ThYlT.
4 Toomey Decl. Ex. 2 (Secondary Order at 2, In re Application of the FBI for an Order Requiring the Production of Tangible Things from Verizon Bus. Network Servs., Inc. on Behalf of MCI Commc’n Servs., Inc. d/b/a Verizon Bus. Servs., No. BR 13-80 (FISA Ct. Apr. 25, 2013)) (“Secondary Order”). In the days after The Guardian disclosed the Secondary Order, Defendant Clapper acknowledged its authenticity. See Office of the Dir. of Nat’l Intelligence, DNI Statement on Recent Unauthorized Disclosures of Classified Information (June 6, 2013), http://1.usa.gov/13jwuFc.
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The government has disclosed that the Secondary Order was issued as part of a broader program that has been in place for seven years and that involves the collection of information about virtually every phone call, domestic and international, made or received in the United States. Administration White Paper: Bulk Collection of Telephony Metadata Under Section 215 of the USA PATRIOT Act 1 (Aug. 9, 2013), http://bit.ly/15ebL9k (“White Paper”); Dep’t of Justice, Report on the National Security Agency’s Bulk Collection Programs for USA PATRIOT Act Reauthorization 3 (Feb. 2, 2011), http://1.usa.gov/1cdFJ1G. The Secondary Order to Verizon was issued pursuant to a “Primary Order” that the government has now released and that sets out procedures the NSA must follow to “query” telephony metadata collected under the Secondary Order.5
The Primary Order and the administration’s White Paper explain how the government analyzes and disseminates information housed in the massive database assembled by the calltracking program. Specifically, the documents indicate that the NSA is permitted to query this database when a “designated approving official” at the NSA determines that “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 7.6 The NSA is permitted to review not just telephony metadata pertaining to the NSA’s specific target but also telephony metadata pertaining to individuals as many as three degrees removed from that target:
5 Toomey Decl. Ex. 1 (Primary Order at 3, 6–11, In re Application of the FBI for an Order Requiring the Production of Tangible Things from [Redacted], No. BR 13-80 (FISA Ct. Apr. 25, 2013)) (“Primary Order”).
6 The government has acknowledged that the NSA has violated the Primary Order’s restrictions on multiple occasions. White Paper at 5 (“Since the telephony metadata collection program under Section 215 was initiated, there have been a number of significant compliance and implementation issues that were discovered as a result of DOJ and ODNI reviews and internal NSA oversight.”).
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Under the FISC’s order, the NSA may also obtain information concerning second and third-tier contacts of the identifier (also referred to as “hops”). The first “hop” refers to the set of numbers directly in contact with the seed identifier. The second “hop” refers to the set of numbers found to be in direct contact with the first “hop” numbers, and the third “hop” refers to the set of numbers found to be in direct contact with the second “hop” numbers. White Paper at 3–4. Even assuming, conservatively, that each person communicates by telephone with forty different people, an analyst who accessed the records of everyone within three hops of an initial target would have accessed records concerning more than two million people. The government has disclosed that the NSA conducted queries on approximately 300 selectors in 2012 alone. White Paper at 4. III. Collection of Plaintiffs’ Call Records Plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation (together, “ACLU”) are current customers of Verizon, which provides their wired communications service, including their landlines and internet connection. Shapiro Decl. ¶ 6. Until early April, Plaintiffs New York Civil Liberties Union and New York Civil Liberties Union Foundation (together, “NYCLU”) were also customers of Verizon. Dunn Decl. ¶ 7. As current and former Verizon customers, Plaintiffs have had their telephony metadata collected in bulk pursuant to the Secondary Order and its predecessors. The NSA stores information collected under the program for five years.7 Its collection of Plaintiffs’ telephony metadata continues “on an ongoing daily basis.” Secondary Order at 2.
7 See Dep’t of Justice, Report on the National Security Agency’s Bulk Collection Programs for USA PATRIOT Act Reauthorization 4 (Feb. 2, 2011), http://1.usa.gov/1cdFJ1G; Siobhan Gorman & Julian E. Barnes, Officials: NSA Doesn’t Collect Cellphone-Location Records, Wall St. J., June 16, 2013, http://on.wsj.com/13MnSsp.
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ARGUMENT To justify entry of preliminary relief, Plaintiffs must show, first, that they are more likely
than not to succeed on the merits of their claims at trial or on summary judgment; and, second,
that they are likely to suffer “irreparable injury” if preliminary relief is not granted. Citigroup
Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir.
2010). For the following reasons, preliminary relief is warranted here. Indeed, preliminary relief
is warranted here even if Plaintiffs’ motion is characterized as one that seeks “mandatory” relief.
See Mastrovincenzo v. City of N.Y., 435 F.3d 78, 89 (2d Cir. 2006) (noting that applicant for mandatory preliminary injunction must show “substantial likelihood” of prevailing).8
I. Plaintiffs are likely to succeed on the merits. A. The government’s long-term recording and aggregation of Plaintiffs’ telephony metadata is not authorized by statute. Section 215 allows the government to compel the production of tangible things if there
are “reasonable grounds to believe that [they] are relevant to an authorized investigation.” 50
U.S.C. § 1861(b)(2)(A). The mass call-tracking program goes far beyond this authority. First, the
notion that detailed information about every phone call made by a resident of the United States
over a seven-year period could be “relevant to an authorized investigation” finds no support in
8 At the pre-motion conference, the Court requested that Plaintiffs address the Court’s authority to review an order issued by a coordinate court. Plaintiffs do not believe that this case is properly characterized as a challenge to an order of a coordinate court. Plaintiffs are not seeking review of the Secondary Order; they are challenging the ongoing conduct of executive agencies. In any event, district courts review the lawfulness of FISC orders in the context of criminal prosecutions. See 50 U.S.C. § 1806(f); see e.g., United States v. Abu Jihaad, 630 F.3d 102 (2d Cir. 2010); United States v. Rahman, 861 F. Supp. 247 (S.D.N.Y. 1994). More generally, courts often examine the legality of search or arrest warrants issued or approved by coordinate courts. See Groh v. Ramirez, 540 U.S. 551 (2004) (Bivens action); United States v. Clark, 638 F.3d 89 (2d Cir. 2011) (motion to suppress); al Kidd v. Gonzales, No. 1:05-CV-093-EJL-MHW, 2012 WL 4470776 (D. Idaho Sept. 27, 2012) (Malley claim). Even if this case is framed as one requesting review of the Secondary Order, the Court has ample authority to do so.
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precedent or common sense. The program assigns “relevance” either a strained and altogether novel meaning—one that no court has previously accepted—or no meaning at all. Second, the program impermissibly transforms a statutory provision that was meant to permit the collection of existing records into one that permits the ongoing collection of records not yet in existence. This contravenes the text of Section 215 and makes nonsense of the larger statutory scheme. Third, the program replaces judicial supervision over the acquisition of information with executive discretion over the later use of information. The mass call-tracking program is the product of statutory alchemy; there is simply no way to justify it without rewriting the statute altogether.9
The billions of call records acquired under the mass call-tracking program every day are not “relevant to an authorized investigation” in any conventional sense of that phrase. In ordinary usage, one thing is said to be relevant to another if there is a demonstrably close connection between them. See Oxford American Dictionary 1474 (3d ed. 2010) (“the state of being closely connected or appropriate to the matter in hand”); Webster’s Collegiate Dictionary 1051 (11th ed. 2012) (“having significant and demonstrable bearing on the matter at hand”). And, as discussed below, courts have consistently applied that ordinary meaning to require that records demanded
9 Many Members of Congress have noted as much. See, e.g., Rep. Jim Sensenbrenner, How Secrecy Erodes Democracy, Politico, July 22, 2013, http://politi.co/1baupnm (op-ed by original sponsor of Patriot Act) (“This expansive characterization of relevance makes a mockery of the legal standard. According to the administration, everything is relevant provided something is relevant. Congress intended the standard to mean what it says: The records requested must be reasonably believed to be associated with international terrorism or spying. To argue otherwise renders the standard meaningless.”); Oversight of the Administration’s Use of FISA Authorities: Hearing Before the H. Comm. on the Judiciary, 113th Cong. at 1h:19m:40s (July 17, 2013), http://1.usa.gov/131CkgJ (“HJC Hearing”) (statement of Rep. Jerrold Nadler, Member, H. Comm. on the Judiciary) (“If we removed that word from the statute, [the government] wouldn’t consider . . . that it would affect [its] ability to collect meta-data in any way whatsoever—which is to say [it’s] disregarding the statute entirely.”).
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by the government—through, for example, grand-jury subpoenas—bear an actual connection to a particular investigation.
The core problem with the government’s approach to “relevance” is that the government cannot possibly tie the bulk collection of Americans’ call records to a specific investigation, as the statute requires. Indeed, the government has conceded that few of the records collected under the mass call-tracking program have any connection to any investigation. See, e.g., Letter from Peter J. Kadzik, Principal Deputy Assistant Att’y Gen., Dep’t of Justice, to Rep. F. James Sensenbrenner, Jr. 2 (July 16, 2013), http://1.usa.gov/12GN8kW (conceding that “most of the records in the dataset are not associated with terrorist activity”). Most of the records swept up by the program—in fact, almost all of them—are what would ordinarily be called “irrelevant.”
Thus, the program guts the concept of relevance of its usual meaning—indeed, of any meaning. Section 215 requires the government to distinguish relevant records from irrelevant ones, but the program relies on collapsing the two categories. It renders the concept of irrelevance irrelevant. See United States v. Menasche, 348 U.S. 528, 538–39 (1955) (It is the Court’s “duty ‘to give effect, if possible, to every clause and word of a statute,’ rather than to emasculate an entire section, as the Government’s interpretation requires.” (citation omitted) (quoting Inhabitants of Montclair Twp. v. Ramsdell, 107 U.S. 147, 152 (1883))).
The concept of relevance has “developed a particularized legal meaning in the context of the production of documents and other things in conjunction with official investigations and legal proceedings.” White Paper at 9. In these other contexts, courts have generally given “relevance” a broad compass. See, e.g., Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993); United States v. R. Enters., Inc., 498 U.S. 292 (1991). To say that courts have given relevance a broad compass, however, is not to say they have given it a boundless one. The
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relevance standard allows courts to prevent abuses of the judicial process, to protect individuals and corporations from unwarranted harassment, and to serve society’s interest in limiting the costs and delays of litigation. See, e.g., United States v. Powell, 379 U.S. 48, 57–58 (1964); Resolution Trust Corp. v. Dabney, 73 F.3d 262, 269 (10th Cir. 1995); United States v. Westinghouse Elec. Corp., 788 F.2d 164, 166–67 (3d Cir. 1986).
Accordingly, courts routinely quash subpoenas for records that do not have a direct relationship to the underlying investigation they are meant to serve. See, e.g., Bowman Dairy Co. v. United States, 341 U.S. 214, 221 (1951) (invalidating a subpoena’s “catch-all provision” on the grounds that it was “merely a fishing expedition to see what may turn up”). Courts also reject or narrow subpoenas that, because they fail to identify the outer bounds of the categories of documents they seek, cover large volumes of irrelevant documents. See In re Horowitz, 482 F.2d 72, 79 (2d Cir. 1973) (Friendly, J.) (narrowing a grand-jury subpoena on the grounds that it improperly demanded the contents of multiple filing cabinets “without any attempt to define classes of potentially relevant documents or any limitations as to subject matter or time period”); cf. Cheney v. U.S. Dist. Court, 542 U.S. 367, 387–88 (2004) (approving of circuit court’s reversal of “overbroad” discovery orders that were “anything but appropriate” because they “ask[ed] for everything under the sky”); In re Six Grand Jury Witnesses, 979 F.2d 939, 943 (2d Cir. 1992) (“All agree that the rules of discovery are to be applied broadly, but that according the discovery rules liberal treatment does not license opposing counsel to discover anything and everything.”).
This Court has applied that same logic to quash a subpoena duces tecum that demanded the entirety of the content of “computer hard drives and floppy disks,” finding it overbroad because the materials “contain[ed] some data concededly irrelevant to the grand jury inquiry.” In
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re Grand Jury Subpoena Duces Tecum Dated Nov. 15, 1993, 846 F. Supp. 11, 12 (S.D.N.Y.
1994) (Mukasey, J.). In In re Grand Jury Subpoena, as in this case, government counsel
acknowledged that the subpoena requested the production of irrelevant documents. Id. at 13.
Comparing the hard drives in the case before him to the filing cabinets in In re Horowitz, Judge
Mukasey quashed the subpoena. The Court concluded that the government could, by using
keyword searches, “isolate[]” the relevant documents without requiring the subject of the
subpoena to turn over the irrelevant ones. Id. And notably, the Court rejected the government’s
contention that its “more sweeping demand than might normally be made” was justified by the
breadth of its investigation, as even an “expanded investigation does not justify a subpoena
which encompasses documents completely irrelevant to its scope.” Id. (quotation marks omitted).10
The license to collect relevant records is not, as the government would have it, a license
to collect everything. In its public defense of the mass call-tracking program, the government has
suggested that all of the records collected under the program are relevant because some of them
might become useful in the future. See generally HJC Hearing. Unless cabined in some way,
however, this theory would justify the collection of virtually any record. It is always possible,
after all, that information not known to be relevant now will become relevant later. Section 215,
10 See also Cessante v. City of Pontiac, No. CIV. A. 07-CV-15250, 2009 WL 973339, at *7 (E.D. Mich. Apr. 9, 2009) (“While some of the information sought may be relevant or lead to relevant information, the request for ‘anything and everything’ is overly broad and not narrowly tailored to meet the relevancy requirements of Fed. R. Civ. P. 26(b).”); Hale v. Henkel, 201 U.S. 43, 76–77 (1906) (finding a “subpoena duces tecum . . . far too sweeping in its terms to be regarded as reasonable” where it did not “require the production of a single contract, or of contracts with a particular corporation, or a limited number of documents, but all understandings, contracts, or correspondence between” a company and six others, among other broadly stated requests spanning many years and locations); Ealy v. Littlejohn, 569 F.2d 219, 227 (5th Cir. 1978) (tying First Amendment limitations on grand-jury investigations to “relevancy to the crime under investigation,” and concluding that “[w]hen the grand jury goes on a fishing expedition in forbidden waters, the courts are not powerless to act”).
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however, does not authorize the government to compel the production of records simply because they might one day become relevant. It authorizes the collection of records only if there are reasonable grounds to believe that they “are” relevant. 50 U.S.C. § 1861(b)(2)(A) (emphasis added); see In re Fontaine, 402 F. Supp. 1219, 1221 (E.D.N.Y. 1975) (“While the standard of relevancy is a liberal one, it is not so liberal as to allow a party ‘to roam in shadow zones of relevancy and to explore matter which does not presently appear germane on the theory that it might conceivably become so.’” (quoting In re Surety Ass’n of Am., 388 F.2d 412, 414 (2d Cir. 1967))).11
Section 215 was meant to supply the government in the foreign-intelligence context with the same kind of authority that it possessed already in the law-enforcement context. See Dep’t of Justice, USA PATRIOT Act: Myth vs. Reality, http://1.usa.gov/14nej54 (last visited Aug. 22, 2013) (“Obtaining business records is a long-standing law enforcement tactic. . . . Section 215 authorized the FISA court to issue similar orders in national-security investigations.” (emphasis omitted)); 50 U.S.C. § 1861(c)(2)(D).
By the government’s own admission, however, no court has ever sanctioned a subpoena that sought production on the scale of the mass call-tracking program. See, e.g., White Paper at 11 (“To be sure, the cases that have been decided in these contexts do not involve collection of data on the scale at issue in the telephony metadata collection program, and the purpose for which information was sought in these cases was not as expansive in scope as a nationwide intelligence collection effort designed to identify terrorist threats.”). Nor, again, is there any serious argument that such a sweeping subpoena would be upheld.
11 Notably, while a presumption of regularity attaches to all grand-jury subpoenas and thus places the burden to quash on the recipients, see, e.g., Powell, 379 U.S. at 58; In re Grand Jury Proceedings, 486 F.2d 85, 92 (3d Cir. 1973), Section 215 applies a presumption of relevance to only three narrow categories of tangible things. 50 U.S.C. § 1861(b)(2)(A).
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The program also exceeds statutory authority because it involves surveillance that is prospective rather than retrospective. On its face, Section 215 permits the government to collect already-existing records, not to engage in ongoing surveillance. See 50 U.S.C. § 1861(c)(1)–(2) (contemplating the “release” of “tangible things” that can be “fairly identified” after a “reasonable period of time within which the tangible things can be assembled and made available”). The government has acknowledged this. See, e.g., HJC Hearing at 3h:00m:03s (statement of Robert Litt, Gen. Counsel, Office of the Dir. of Nat’l Intelligence) (“It’s important to remember that 215 authority allows you to acquire existing records and documents and it’s limited to that.”). Here, however, the government has subjected recipients of Section 215 orders to an ongoing production obligation—an obligation that is effectively indefinite.
Moreover, the government’s use of Section 215 here amounts to an end run around other FISA provisions that specifically address—and limit—the circumstances in which the government can engage in prospective surveillance of telephony metadata. See 50 U.S.C. § 1842(a) (authorizing installation and use of “pen register” and “trap and trace” device); id. at § 1842(d) (stating that order granting approval to install or use “pen register” or “trap and trace” device must include, among other things, “the identity, if known, of the person who is the subject of the investigation”; “the identity, if known” of the person whose telephone is to be monitored; and “the attributes of the communications to which the order applies, such as the number or other identifier, and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied and, in the case of a trap and trace device, the geographic limits of the trap and trace order”). The government is improperly relying on Section 215 to engage in conduct that a more specific provision—namely, 50 U.S.C. § 1842—disallows. In re Stoltz, 315 F.3d 80, 93 (2d Cir. 2002) (holding that it is a “basic
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principle of statutory construction that a specific statute . . . controls over a general provision” (quoting HCSC–Laundry v. United States, 450 U.S. 1, 6 (1981))).12
Finally, the mass call-tracking exceeds statutory authority because it effectively reassigns to the executive a task that Congress assigned to the judiciary. Section 215 entrusts to the FISC, not the executive, the responsibility of determining whether the “tangible things” sought by the government are closely connected to an authorized investigation. Under the mass call-tracking program, however, that determination is shifted entirely to the executive. See White Paper at 3–4 (describing process by which executive officers determine whether and how already-collected metadata should be queried). Again, the government has acknowledged that the vast majority of the records collected under the program have no connection at all to terrorism. Its defense of the program is that executive officers make a nexus determination when they access the database. If that is how Congress had wanted the statute to operate, it could readily have said so. It is easy to understand why Congress did not. See, e.g., Memorandum Opinion, [Title Redacted], No. 11 BR [Dkt. No. Redacted], at 16 n.14 (FISA Ct. Oct. 3, 2011) (Bates, J.), http://bit.ly/13UH2dS (discussing a previous FISC ruling) (“Contrary to the government’s repeated assurances, NSA had been routinely running queries of the metadata using querying terms that did not meet the required standard for querying. The Court concluded that this requirement had been so frequently and systematically violated that it can fairly be said that this critical element of the overall
12 Notably, concerns about an analogous end run have led some courts to prohibit the government from using the Stored Communications Act (“SCA”) to engage in prospective surveillance of telephony metadata for law-enforcement purposes. See In re Application of the U.S. for an Order Authorizing the Disclosure of Cell Site Location Info., No. 6:08-6038M-REW, 2009 WL 8231744, at *3, *8 (E.D. Ky. Apr. 17, 2009) (discussing language in the SCA “plainly indicat[ing]” that it applies only to “records/information that exist at the time of application”); In re Application for Pen Register & Trap/Trace Device with Cell Site Location Auth., 396 F. Supp. 2d 747, 760 (S.D. Tex. 2005) (discussing the availability of surveillance tools that are more appropriate authorities for forward-looking record collection because they are “inherently prospective in nature”).
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regime has never functioned effectively.” (alteration and quotation marks omitted)). In

substituting the executive’s ex post nexus determination for the FISC’s ex ante relevance

determination, the program exceeds statutory authority.

For the foregoing reasons, the program cannot be reconciled with Section 215’s plain

language. See BedRoc Ltd. v. United States, 541 U.S. 176, 183 (2004) (“[O]ur inquiry begins with the statutory text, and ends there as well if the text is unambiguous.”).13

B. The government’s long-term recording and aggregation of Plaintiffs’ telephony metadata violates the Fourth Amendment.

The mass call-tracking program is unlawful under the Fourth Amendment. Telephony

metadata reveals personal details and relationships that most people customarily and justifiably

regard as private. The government’s long-term recording and aggregation of this information

invades a reasonable expectation of privacy and constitutes a search. This search violates the

Fourth Amendment because it is warrantless and unreasonable. Indeed, it lacks any of the usual

indicia of reasonableness: it infringes Plaintiffs’ privacy without probable cause or

individualized suspicion of any kind; it is effectively indefinite, having been in place for seven

years already; and it lacks any measure of particularity, instead logging information about every

single phone call.

1.

The government’s long-term recording and aggregation of telephony

metadata constitutes a search under the Fourth Amendment.

A Fourth Amendment search occurs “when the government violates a subjective

expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S.

13 For the reasons stated above, Plaintiffs believe that the mass call-tracking program is inconsistent with the plain text of the Section 215. Even if the court concludes that the provision’s text is ambiguous, however, the doctrine of constitutional avoidance counsels rejection of the sweeping construction of the provision that the government appears to have adopted. See, e.g., Clark v. Martinez, 543 U.S. 371, 381 (2005); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988).
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27, 33 (2001). Under this test, the long-term recording and aggregation of telephony metadata constitutes a search. Americans do not expect that their government will make a note, every time they pick up the phone, of whom they call, precisely when they call them, and for precisely how long they speak. Nor should they have to. Generalized surveillance of this kind has historically been associated with authoritarian and totalitarian regimes, not with constitutional democracies. See, e.g., United States v. Gordon, 236 F.2d 916, 919 (2d Cir. 1956); Neil M. Richards, The Dangers of Surveillance, 126 Harv. L. Rev. 1934, 1934 (2013) (Until recently, “the threat of constant surveillance has been relegated to the realms of science fiction and failed totalitarian states.”); George Orwell, Freedom and Happiness, Tribune, Jan. 4, 1946 (review of Yevgeny Zamyatin’s We), http://bit.ly/GCmoHe; The Lives of Others (Sony Pictures Classics 2006).
As an initial matter, Plaintiffs have a subjective expectation of privacy in their telephony metadata.14 As the declarations of Steven R. Shapiro, Christopher Dunn, and Michael German explain, Plaintiffs ACLU and NYCLU work on a wide range of civil-liberties and human-rights issues, including issues relating to national security, police accountability, reproductive rights, LGBT rights, and immigrants’ rights. Shapiro Decl. ¶ 3; Dunn Decl. ¶ 3; German Decl. ¶ 2. In connection with this work, ACLU and NYCLU staff frequently place calls to, and receive calls from, individuals who have been wronged in some way by the government, have knowledge of government abuses, or fear government retaliation for some action they have taken in the past. German Decl. ¶¶ 12–19; Shapiro Decl. ¶¶ 4, 8; Dunn Decl. ¶¶ 5–6, 9. These communications are
14 Most Americans apparently agree that their telephony metadata should be secure from longterm recording and aggregation by the government. See, e.g., Frank Newport, Americans Disapprove of Government Surveillance Programs, Gallup Politics, June 12, 2013, http://bit.ly/11fWoZc; Pew Research, Few See Adequate Limits on NSA Surveillance Program, July 26, 2013, http://bit.ly/12pdN7D; see also Press Release, Office of Sen. Ron Wyden, Wyden Statement on Alleged Large-Scale Collection of Phone Records, June 6, 2013, http://1.usa.gov/11v2Deo (“Collecting this data about every single phone call that every American makes every day [is] a massive invasion of Americans’ privacy.”).
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often sensitive or confidential; in many circumstances, this is true of the mere fact of the communication. For example, Plaintiffs routinely communicate with prospective whistleblowers who would forgo speaking with Plaintiffs if they believed that their communications were being logged by the government. See, e.g., Shapiro Decl. ¶¶ 4, 8; German Decl. ¶¶ 23, 25–30.
Because its communications are often sensitive or confidential, the ACLU takes measures to protect its communications from surveillance by the government or other third parties. See, e.g., Shapiro Decl. ¶ 5. In some circumstances ACLU staff use encryption software to protect the substance of their communications. Id. The ACLU is not aware of any technology that would allow it to shield its telephony metadata from surveillance of the kind at issue here, see Felten Decl. ¶¶ 30, 33–37, but Plaintiffs treat their telephony metadata as sensitive. Shapiro Decl. ¶ 5.15
Plaintiffs’ expectation that their telephony metadata will not be subject to long-term recording and aggregation by the government is objectively reasonable. The kind of surveillance at issue here permits the government to assemble a richly detailed profile of every person living in the United States and to draw a comprehensive map of their associations with one another. As the declaration of Edward Felten explains, “analysis of telephony metadata often reveals information that could traditionally only be obtained by examining the contents of communications.” Felten Decl. ¶ 39. For example, “certain telephone numbers are used for a
15 The reasonableness of Plaintiffs’ expectation of privacy is reinforced by the terms of service in their contracts with Verizon, which describe Verizon’s obligation to protect the confidential information its subscribers necessarily share in the course of their communications. These agreements define Customer Proprietary Network Information (“CPNI”) to include, among other things, “information relating to the quantity, technical configuration, type, destination, location, and amount of use of the telecommunications services Customer purchases from Verizon, as well as related local and toll billing information, made available to Verizon solely by virtue of Customer’s relationship with Verizon.” Shapiro Decl. ¶ 7 (emphasis added). Consistent with privacy protections written into federal law, 47 U.S.C. § 222(c)(1), Verizon agrees to “protect the confidentiality of Customer CPNI in accordance with applicable laws, rules and regulations.” Shapiro Decl. ¶ 7.
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single purpose,” id. ¶ 40, and their use can reveal a person’s religion, political associations, use of a phone-sex hotline, contemplation of suicide, addiction to gambling or drugs, experience with rape, grappling with sexuality, or support for particular political causes. Id. ¶¶ 39–45. “The phone records indicating that someone called a sexual hotline or a tax fraud reporting hotline will . . . reveal information that virtually everyone would consider extremely private.” Id. ¶ 42.
Aggregating metadata across time can yield “an even richer repository of personal and associational details.” Id. ¶ 47. Even basic inspection of our calling patterns, without relying upon single-use numbers, can reveal: “when we are awake and asleep; our religion, if a person regularly makes no calls on the Sabbath, or makes a large number of calls on Christmas Day; our work habits and our social aptitude; the number of friends we have; and even our civil and political affiliations.” Id. ¶ 46. It “can reveal the rise and fall of intimate relationships, the diagnosis of a life-threatening disease, the telltale signs of a corporate merger or acquisition, the identity of a prospective government whistleblower, the social dynamics of a group of associates, or even the name of an anonymous litigant.” Id. ¶ 58.
Finally, aggregating the telephony metadata of many people allows researchers to “observe even deeper patterns.” Id. ¶ 59. Because individuals are often defined by the company they keep, pooling together one person’s telephony metadata with the telephony metadata of each of her contacts and each of her contacts’ contacts allows an analyst to “paint[] a picture that can be startlingly detailed.” Id. ¶ 1. As Professor Felten writes, “The privacy impact of collecting all communications metadata about a single person for long periods of time is qualitatively different than doing so over a period of days. Similarly, the privacy impact of assembling the call records of every American is vastly greater than the impact of collecting data about a single person or even groups of people.” Id. ¶ 64.
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The long-term recording and aggregation of telephony metadata achieves essentially the
same kind of privacy intrusion that led five Justices of the Supreme Court to conclude in United
States v. Jones, 132 S. Ct. 945 (2012), that the long-term recording and aggregation of location
information constituted a search. In Jones, the Supreme Court considered whether police had
conducted a Fourth Amendment search when they attached a GPS-tracking device to a vehicle
and monitored its movements over a period of twenty-eight days. The Court held that the
installation of the GPS device and the use of it to monitor the vehicle’s movements constituted a
search because it involved a trespass “conjoined with . . . an attempt to find something or to
obtain information.” Id. at 951 n.5. In two concurring opinions, five Justices concluded that the
surveillance constituted a search because it “impinge[d] on expectations of privacy.” Id. at 964
(Alito, J., concurring); id. at 955 (Sotomayor, J., concurring). Justice Sotomayor explained:
GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such records and efficiently mine them for information years into the future. And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: limited police resources and community hostility. Id. at 955–56 (citations and quotation marks omitted); see id. at 964 (Alito, J., concurring).
What Justice Sotomayor observed of long-term location tracking is equally true of the
mass call-tracking program. The surveillance at issue here “enables the Government to ascertain,
more or less at will, [every person’s] political and religious beliefs, sexual habits, and so on.” Id. at 956 (Sotomayor, J., concurring).16
16 The government has downplayed the sensitivity of telephony metadata, characterizing this information as “only technical data.” White Paper at 15. But the government itself has recognized the sensitivity of this information in other contexts. For example, just last week, the Chairwoman of the Federal Trade Commission gave a speech underscoring the serious privacy concerns raised by the “bit-by-bit” compilation of “little data” into “enormous databases.” Edith
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Indeed, the program is in several respects considerably more intrusive than the location
tracking that was at issue in Jones. The latter case involved the surveillance of a single vehicle
over a twenty-eight days. The mass call-tracking program, by contrast, has involved the
surveillance of every American over a period of seven years—and the government appears intent on continuing this surveillance indefinitely.17
In its public defense of the program, the government has relied heavily on Smith v.
Maryland, 442 U.S. 735 (1979), in which the Supreme Court upheld the installation of a “pen
register” in a criminal investigation. White Paper at 19–20. The pen register in Smith, however,
was very primitive—it tracked the numbers being dialed, but it did not indicate which calls were
completed, let alone the duration of those calls. 442 U.S. at 741. It was in place for less than two
days, and it was directed at a single criminal suspect. Id. at 737 (noting that pen register was
installed after woman who had been robbed began receiving threatening and obscene phone calls
from man purporting to be robber). Moreover, the information the pen register yielded was not
aggregated with information from other pen registers, let alone with information relating to
hundreds of millions of innocent people. Id. Nothing in Smith—a case involving narrow
Ramirez, Chairwoman, Fed. Trade Comm’n, Keynote Address at the Technology Policy Institute Aspen Forum 4 (Aug. 19, 2013), http://1.usa.gov/170P3lB; see id. at 4–5 (“The little data often reflects deeply personal information about individuals: the medical treatment they receive; the products and services they buy; their physical location; the websites they surf; their intimate communications with family and friends; and the list goes on.”).
17 According to the government, the scope of the program reflects the scope of the underlying investigation. See White Paper at 12 (“the sort of national security investigations with which Section 215 is concerned often have a remarkable breadth—spanning long periods of time, multiple geographic regions, and numerous individuals”). That the underlying investigation is so broad, however, is a factor that weighs against the government’s constitutional argument. See, e.g., Keith, 407 U.S. at 320 (“Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.”).
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surveillance directed at a specific criminal suspect over a very limited time period—remotely suggests that the Constitution allows the government’s mass collection of sensitive information about every single phone call made or received by residents of the United States over a period of seven years. Notably, since Smith was decided in 1979, “technological advances . . . in computing, electronic data storage, and digital data mining . . . have radically increased our ability to collect, store, and analyze personal communications, including metadata.” Felten Decl. ¶ 22.
Indeed, the government’s reliance on Smith suggests that it has failed to absorb the crucial insight of Jones: that whether or not a particular form of surveillance constitutes a search can turn on whether the information generated through the surveillance is aggregated. See Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring) (“making available . . . such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may alter the relationship between citizen and government in a way that is inimical to democratic society” (emphasis added and quotation marks omitted)); id. (stating that individuals have “a reasonable societal expectation of privacy in the sum of [their] public movements” (emphasis added)); id. at 964 (Alito, J., concurring) (“society’s expectation has been that law enforcement agents and others would not—and, indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period”); see also United States v. Knotts, 460 U.S. 276, 284–85 (1983) (reserving question of whether the Fourth Amendment would treat dragnet location tracking differently from location tracking of a single individual). Again, the mass call-tracking program involves the aggregation of sensitive information not only over long periods of time (as was the case in Jones) but across hundreds of millions of people. To contend that Smith controls here is to
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misunderstand the narrowness of the pen-register surveillance upheld in that case, the breadth of the surveillance at issue here, or both.18

2.

The government’s long-term recording and aggregation of telephony

metadata is unreasonable.

i. The mass call-tracking program involves warrantless searches, which are per se unreasonable.

The mass call-tracking program authorizes warrantless searches, which “are per se

unreasonable under the Fourth Amendment—subject only to a few specifically established and

well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967); see United States

v. Karo, 468 U.S. 705, 717 (1984). In fact, it authorizes the particular form of search that the

authors of the Fourth Amendment found most offensive.

The program is, in reality, a general warrant for the digital age. Like a general warrant, it

permits searches not predicated upon “an oath or information supplying cause.” Morgan Cloud,

Searching Through History; Searching For History, 63 U. Chi. L. Rev. 1707, 1738 (1996). Like

a general warrant, it authorizes surveillance that “survive[s] indefinitely.” Id. And like a general

warrant, it is “not restricted to searches of specific places or to seizures of specific goods.” Id.;

see also Berger v. New York, 388 U.S. 41, 59 (1967) (striking down electronic-surveillance

statute that, like “general warrants,” left “too much to the discretion of the officer executing the

18 To the extent the government’s argument is that individuals lack a constitutionally protected privacy interest in telephony metadata because that information has been shared with telecommunications companies, White Paper at 20, this argument, too, is mistaken. Jones makes clear that the mere fact that a person has shared information with the public or a third party does not mean that the person lacks a constitutionally protected privacy interest in it. See 132 S. Ct. at 957 (Sotomayor, J., concurring); id. at 964 (Alito, J., concurring). Jones, moreover, is only the most recent of a line of Supreme Court cases reflecting the same principle. See, e.g., Florida v. Jardines, 133 S. Ct. 1409 (2013) (odors detectable by a police dog that emanate outside of a home); Kyllo v. United States, 533 U.S. 27 (2001) (thermal signatures emanating from a home); Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001) (diagnostic-test results held by hospital staff); Bond v. United States, 529 U.S. 334, 338–39 (2000) (personal luggage in overhead bin on bus).
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order” and gave the government “a roving commission to seize any and all conversations” (quotation marks omitted)).
The government has elsewhere hinted that the “special needs” doctrine excuses its failure to comply with the warrant clause. Plaintiffs will address that doctrine at greater length if the government relies upon it in this case. But even if its interest in examining the telephony metadata of suspected terrorists qualifies as a “special need,” the government would still have to establish that the manner in which it pursues that interest is reasonable. Illinois v. Lidster, 540 U.S. 419, 426 (2004). For the reasons below, it is not.
ii. The government’s long-term recording and aggregation of telephony metadata is unreasonable.
Even if the warrant requirement does not apply, the government’s dragnet collection of Plaintiffs’ phone records is unreasonable and, therefore, unconstitutional. Courts have insisted that the government’s intrusions on privacy be precise and discriminate. Berger, 388 U.S. at 58. The mass call-tracking program is anything but. To pursue its limited goal of tracking the associations of a discrete number of individuals, the government has employed the most indiscriminate means possible—collecting everyone’s records. The government has, in the words of Section 215’s author, “scoop[ed] up the entire ocean to . . . catch a fish.”19
“[T]he ultimate touchstone of the Fourth Amendment” is “reasonableness,” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Reasonableness is determined by examining the “totality of circumstances” to “assess[], on the one hand, the degree to which [government conduct] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Samson v. California, 547 U.S. 843, 848 (2006) (quotation
19 Jennifer Valentino-Devries & Siobhan Gorman, Secret Court’s Redefinition of ‘Relevant’ Empowered Vast NSA Data-Gathering, Wall St. J., July 8, 2013, http://on.wsj.com/14N9j6j (quoting Rep. Jim Sensenbrenner).
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marks omitted); see also Virginia v. Moore, 553 U.S. 164, 169 (2008). In the context of electronic surveillance, reasonableness demands that statutes have “precise and discriminate” requirements and that the government’s surveillance authority be “carefully circumscribed so as to prevent unauthorized invasions of privacy.” Berger, 388 U.S. at 58 (quotation marks omitted); see also United States v. Bobo, 477 F.2d 974, 980 (4th Cir. 1973) (“[W]e must look . . . to the totality of the circumstances and the overall impact of the statute to see if it authorizes indiscriminate and irresponsible use of electronic surveillance or if it authorizes a reasonable search under the Fourth Amendment.”).
In this case, the intrusion upon Plaintiffs’ privacy is substantial. The government has acquired and continues to acquire a record of every single call made to or from Plaintiffs. As explained above, those records contain a wealth of revealing information. In public statements, the government has emphasized that the mass call-tracking program does not involve the collection of the content of Americans’ communications. This does not save the program. As shown above, the government need not examine the content of the communications in order to gain a “startlingly detailed” profile of each and every American. Felten Decl. ¶ 1.
The principal question in conducting the Fourth Amendment’s balancing inquiry is, therefore, only whether the government’s asserted interest in the mass call-tracking program justifies the blanket invasion of Plaintiffs’—and every Americans’—right to privacy. It does not.
Two Supreme Court cases are particularly instructive. In Berger, the Supreme Court invalidated a New York statute that authorized issuance of an “order for eavesdropping . . . upon oath or affirmation . . . that there is reasonable ground to believe that evidence of crime may be thus obtained.” 388 U.S. at 43–44 & n.1. In holding that the statute violated the Fourth Amendment, the Court noted its breadth, id. at 55, its lack of particularity, id. at 55–56, the
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lengthy surveillance it authorized, id. at 59, and the lack of a “termination date on the eavesdrop once the conversation sought [was] seized,” id. at 59–60. These features, the Court held, allowed “indiscriminate” surveillance and permitted the “general searches” prohibited by the Fourth Amendment. Id. at 58–59.
Five years later, in Keith, the Supreme Court held unconstitutional a warrantless wiretap that the Attorney General had “deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.” 407 U.S. at 300. Noting that “‘reasonableness’ derives content and meaning through reference to the warrant clause,” id. at 309–10, the Court stressed that “[t]he Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised,” id. at 317. The Court did not question the government’s need to conduct electronic surveillance “to safeguard domestic security,” id. at 315, but it asked “whether the needs of citizens for privacy and the free expression may not be better protected by requiring a warrant before such surveillance is undertaken,” id. The Court wrote:
Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. Id. at 320. The mass call-tracking program lacks any of the indicia of reasonableness that the Supreme Court looked to in Berger and Keith. First, the program authorizes surveillance that is suspicionless. Under the mass calltracking program, the government acquires the telephone records of every customer of
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Verizon—and virtually every American. The collection is not limited to specific targets. The absence of a suspicion requirement weighs heavily against the program’s reasonableness. Chandler v. Miller, 520 U.S. 305, 313 (1997) (“To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.”); United States v. Duggan, 743 F.2d 59, 73 (2d Cir. 1984) (FISA’s requirement of individualized suspicion that the government’s target is an “agent of a foreign power” is part of what makes it “reasonable.”); United States v. Cavanagh, 807 F.2d 787, 790 (9th Cir. 1987) (same); United States v. Pelton, 835 F.2d 1067, 1075 (4th Cir. 1987) (same).
Second, the mass call-tracking program allows surveillance that is essentially indefinite. The program contains no apparent temporal limit. Rather, the government has collected every American’s call records for the last seven years, and it apparently intends to continue the program indefinitely. Neither the government nor the FISC “clearly circumscribe[s] the discretion” of the government “as to when the surveillance should end.” United States v. Tortorello, 480 F.2d 764, 774 (2d Cir. 1973). That the program has no temporal limit also weighs heavily against its reasonableness. See United States v. Cafero, 473 F.2d 489, 496 (3d Cir. 1973) (“Carte blanche is given no one. Executing officers are not free to intercept beyond attainment of their objective for an hour, a day, seven days, or twenty-nine days.”); In re Sealed Case, 310 F.3d 717, 740 (FISA Ct. Rev. 2002).
Third, the program fails to limit in any way the scope and nature of phone records that the government may demand. The government simply obtains all of Plaintiffs’ phone records, no matter their relevance to an ongoing investigation. In other words, the program not only fails to differentiate between individuals that the government has a legitimate interest in monitoring and those that it does not, but it draws no distinction between metadata that is relevant to an
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investigation and metadata that is not. The program’s lack of particularity is yet another factor that weighs heavily against its reasonableness. Berger, 388 U.S. at 56 (noting that the demand of particularity is “especially great” when the government targets electronic communications); see also In re Sealed Case, 310 F.3d at 739; Tortorello, 480 F.2d at 773; Bobo, 477 F.2d at 982; Cafero, 473 F.2d at 498.
Finally, the program sweeps far more broadly than necessary to achieve the government’s stated interest. The government has said that its interest is in discovering the networks of particular suspected terrorists. But to achieve this interest, the government could simply collect those records relating to those individuals. The government need not collect everyone’s call records in order to discover information about a discrete number of individuals.
That new technology enables the government to collect and analyze everyone’s information does not mean that the Constitution permits it. This case arises because new technologies allow the government to collect, store, and analyze exponentially more information than ever before, see Felten Decl. ¶¶ 12, 22–24; but those capabilities are still subject to familiar constitutional limits. See Jones, 132 S. Ct. at 963–64 (Alito, J., concurring). No doubt, the continuous collection of all phone records provides easy access, in the future, to the tiny subset of records that the government might later find a legitimate need to examine. It is not surprising that, in this digital age, intelligence officials have expressed a desire to “collect it all.”20 But, recognizing the dangers of this executive impulse to put expedience ahead of privacy, the Fourth Amendment requires that the government’s searches be “carefully circumscribed.” Berger, 388 U.S. at 58; see also Gordon, 236 F.2d at 919 (“[The Fourth Amendment], too, often becomes a barrier to crime investigation, as when evidence slips away because the police may not promptly
20 Ellen Nakashima & Joby Warrick, For NSA Chief, Terrorist Threat Drives Passion to ‘Collect It All,’ Observers Say, Wash. Post, July 14, 2013, http://wapo.st/14Nb17P.
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search without a warrant. American prosecutors must learn to adjust themselves to these

obstacles. The purpose of the Bill of Rights was as Madison declared, ‘to oblige the government

to control itself.’” (footnote omitted)). The mass call-tracking program is unreasonable because,

in one fell swoop, it erodes the privacy of all Americans. It is not saved by the relative ease with

which the government accomplishes that intrusion.

C. The government’s long-term recording and aggregation of Plaintiffs’ telephony metadata violates the First Amendment.

1.

Courts apply “exacting scrutiny” to investigative practices that

significantly burden First Amendment rights.

The Supreme Court has recognized that government surveillance can have a profound

chilling effect on First Amendment rights. In Keith, the Court described these constitutional

dangers in detail, writing:

National security cases . . . often reflect a convergence of First and Fourth Amendment values not present in cases of “ordinary” crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. “Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power[.]” . . .
The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation.
407 U.S. at 313–14 (internal citations omitted).

Because investigatory tools have an acute potential to stifle free association and

expression, the courts have subjected such methods to “exacting scrutiny” where they

substantially burden First Amendment rights. In re Grand Jury Proceedings, 776 F.2d 1099,

1102–03 (2d Cir. 1985) (grand-jury subpoena); Clark v. Library of Cong., 750 F.2d 89, 94 (D.C.

Cir. 1984) (FBI field investigation); Nat’l Commodity & Barter Ass’n v. Archer, 31 F.3d 1521,

1531 n.4 (10th Cir. 1994) (seizure of organization’s membership information). This standard is a

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demanding one. The government must show that its investigative methods are the least restrictive means of pursuing a compelling state interest. See Clark, 750 F.2d at 95. “This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the government’s conduct.” Elrod v. Burns, 427 U.S. 347, 362 (1976) (quoting Buckley v. Valeo, 424 U.S. 1, 65 (1976) (per curiam)); see also Bates v. City of Little Rock, 361 U.S. 516, 523 (1960) (“Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.”).
The First Amendment’s protection is distinct from and often greater than that afforded by the Fourth Amendment. See Local 1814, Int’l Longshoremen’s Ass’n v. Waterfront Comm’n of N.Y. Harbor, 667 F.2d 267, 269 (2d Cir. 1981) (narrowing subpoena as overbroad on First Amendment grounds); Tabbaa v. Chertoff, 509 F.3d 89, 102–03 n.4 (2d Cir. 2007) (“[D]istinguishing between incidental and substantial burdens under the First Amendment requires a different analysis, applying different legal standards,” than under the Fourth Amendment.); Ealy, 569 F.2d at 227 (“We therefore conclude that the First Amendment can serve as a limitation on the power of the grand jury to interfere with a witness’ freedoms of association and expression.”). Indeed, even those cases applying a Fourth Amendment analysis give First Amendment interests independent weight, requiring “scrupulous exactitude” when expressive information is at stake. Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978) (quoting Stanford, 379 U.S. at 485); see Marcus v. Search Warrants, 367 U.S. 717 (1961).
A criminal search warrant, supported by probable cause and carefully drawn, may overcome a countervailing First Amendment interest. But as the government’s demands for information become more diffuse, implicating more and more protected information on a lower
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showing of relevance or need, the First Amendment calculus shifts too. Thus, courts have turned

aside or limited demands for membership rolls, sweeping subpoenas for business records that

would reveal the same information, and the FBI’s use of mail covers to obtain the postal

equivalent of “metadata.” See Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539, 546

(1963); Local 1814, 667 F.2d at 269; FEC v. Larouche Campaign, Inc., 817 F.2d 233, 234–35

(2d Cir. 1987) (per curiam); Paton v. La Prade, 469 F. Supp. 773 (D.N.J. 1978).

2.

The mass call-tracking program substantially burdens Plaintiffs’

First Amendment rights.

The Supreme Court has repeatedly recognized that the government’s surveillance and

investigatory activities can infringe on associational rights protected by the First Amendment.

Thus in NAACP v. Alabama ex rel. Patterson, a case in which the Supreme Court invalidated an

Alabama order that would have required the NAACP to disclose its membership lists, the Court

wrote, “[i]t is hardly a novel perception that compelled disclosure of affiliation with groups

engaged in advocacy” may operate as “a restraint on freedom of association.” 357 U.S. 449, 462

(1958). “Inviolability of privacy in group association may in many circumstances be

indispensable to preservation of freedom of association, particularly where a group espouses

dissident beliefs.” Id.; see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341–42

(1995); Doe v. Ashcroft, 334 F. Supp. 2d 471, 507 (S.D.N.Y. 2004).

The government’s mass call-tracking program raises precisely the same specter of

associational harm by permitting the government to track every one of Plaintiffs’ telephone

contacts. As discussed above, in the course of their work Plaintiffs routinely communicate by

phone with their members, donors, current and potential clients, whistleblowers, legislators and

their staffs, other advocacy organizations, and members of the public. Many of these

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communications are sensitive or confidential. See German Decl. ¶¶ 12–13, 23–24; Shapiro Decl. ¶ 4; Dunn Decl. ¶¶ 5–6.
The mass call-tracking program exposes all of these associational contacts to government monitoring and scrutiny. In its breadth and scope, the NSA’s bulk metadata collection far exceeds the demands for membership information that produced NAACP v. Alabama and its progeny. See also Bates, 361 U.S. 516; Gibson, 372 U.S. 539. These seminal cases rejected government efforts to obtain basic membership rolls. By comparison, the metadata that the NSA is now gathering yields an even richer web of private associational information. It supplies a comprehensive social map of Plaintiffs’ activities—reflecting the full breadth of associational ties embedded in their everyday work of public education, legal counseling, and legislative advocacy.
A corollary of this direct intrusion on Plaintiffs’ associational rights is the chill it imposes on Plaintiffs’ work by exposing to government scrutiny many of Plaintiffs’ most sensitive contacts. Indeed, because the surveillance at issue here is so intrusive, and the information gathered by it so rich, it raises yet another concern that the Court found so troubling in Jones. As Justice Sotomayor there observed, generalized surveillance on this scale will inevitably have a chilling effect on First Amendment rights. See Jones, 132, S. Ct. at 956 (Sotomayor, J., concurring) (“Awareness that the Government may be watching chills associational and expressive freedoms.”). This harm amounts to a substantial and discrete First Amendment injury.
Plaintiffs regularly communicate with individuals who are themselves whistleblowers and wish to come forward with evidence of government wrongdoing, including “illegality, waste, fraud, or abuse.” German Decl. ¶ 2; see id. ¶¶ 12–24; Shapiro Decl. ¶ 4; Dunn Decl. ¶ 6. Likewise, Plaintiffs communicate with individuals relating to potential legal representation in
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suits, including the victims of government abuses, who seek legal advice and may ultimately become clients or confidential sources of information. Shapiro Decl. ¶ 4. Finally, Plaintiffs communicate with other civil society organizations across the ideological spectrum, many of whom investigate instances of government wrongdoing or criticize government policy. Id.
All of these individuals have an interest in maintaining the confidentiality of their communications—and all contribute centrally to Plaintiffs’ First Amendment activities. See German Decl. ¶ 23 (“Almost universally, potential whistleblowers seeking advice from me are seeking confidentiality as to both the fact and substance of our communications.”). The chilling effect of the mass call-tracking program is apparent: any person hoping to approach Plaintiffs with proof of official misconduct would be understandably wary knowing that the government receives, almost in real-time, a record of every telephone call. See id. ¶¶ 23–25, 28–30; Local 1814, 667 F.2d at 272 (recognizing that “[s]ome chilling effect . . . would be inevitable” from commission’s use of subpoena power to seize payroll records (citing cases)); Lamont v. Postmaster Gen., 381 U.S. 301, 307 (1965) (postal requirement that individuals collect communist propaganda in-person “almost certain to have a deterrent effect”). Collection of these calling records would allow the government to uncover anonymous tips or attempts by individuals to privately share sensitive information with Plaintiffs. See German Decl. ¶ 28; id. ¶¶ 15–20 (discussing the various forms of retaliation whistleblowers often face for reporting government misconduct); McIntyre, 514 U.S. at 341–42 (“The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.”); Talley v. California, 362 U.S. 60, 64 (1960) (finding self-evident the fact that ordinance prohibiting anonymous handbills “would tend to restrict freedom to distribute information and thereby freedom of
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expression”). In short, the mass call-tracking program aggregates in a government database

sensitive information about Plaintiffs’ contacts with often-wary sources. The government’s call

logging will inhibit and deter vital sources of information for Plaintiffs’ work. See German Decl.

¶¶ 29–32; Shapiro Decl. ¶ 8; Dunn Decl. ¶ 9; NAACP, 357 U.S. at 462–63; Presbyterian Church

(U.S.A.) v. United States, 870 F.2d 518, 521–23 (9th Cir. 1989).

3.

The mass call-tracking program fails “exacting scrutiny” because it is

an unduly broad means of seeking foreign-intelligence information.

Given these imposing burdens, the government’s mass call-tracking program cannot

withstand exacting scrutiny. Even “‘justifiable governmental goals may not be achieved by

unduly broad means having an unnecessary impact on protected rights of speech, press, or

association.’” In re Grand Jury Proceedings, 776 F.2d at 1102–03 (quoting Branzburg v. Hayes,

408 U.S. 665, 680–81 (1972)); see also In re Grand Jury Subpoena, 701 F.2d 115, 119 (10th Cir.

1983); Clark, 750 F.2d 89. But this is precisely the failing of the NSA’s indiscriminate collection

of call records: it is broad beyond all limits, and carries with it an unreasonable and unnecessary

invasion of First Amendment rights. Indeed, the program’s intrusion on associational privacy and

its chilling effect on protected expression are on a scale without ready comparison.

Certainly, the government has narrower methods that would serve the same ends. For

one, the FBI could readily tailor its collection of telephony metadata under Section 215 to the

investigation of terrorists, as the statute contemplates. See 50 U.S.C. § 1861. Properly anchored

to a specific investigation, a demand for phone records under Section 215 could satisfy the

exacting-scrutiny standard. Intelligence officials have indicated that, in 2012, the NSA queried

the countless call records in its database using fewer than 300 identifiers, such as telephone

numbers. See Ellen Nakashima, Call Records of Fewer Than 300 People Were Searched in 2012,

U.S. Says, Wash. Post, June 15, 2013, http://wapo.st/159gMvT. While the government has

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recited this figure to imply restraint, it is in reality proof that these phone records could be obtained on a case-by-case basis.
Moreover, Section 215 is not the only tool at the government’s disposal; the government has other means of obtaining call records genuinely relevant to its investigative needs. See, e.g., 50 U.S.C. § 1842 (FISA’s “pen register” and “trap and trace” provision); 18 U.S.C. § 2709 (“national security letter” authority to demand telephony metadata “relevant to” certain investigations); 18 U.S.C. §§ 3122, 3125 (“pen register” or “trap and trace” device for criminal investigations); 18 U.S.C. § 2703(d) (court order for stored telephone records); Fed. R. Crim. P. 17(c) (subpoena); U.S. Const. amend. IV (search warrant). Rather than using any of these calibrated tools, however, government officials appear to believe that storing all call records is an appropriate prophylactic step given the possibility that some small subset might become useful in the future.
Yet members of the Senate Select Committee on Intelligence—which oversees the mass call-tracking program—have indicated that the available alternatives are every bit as effective. Shortly after the program was disclosed, Senators Ron Wyden and Mark Udall stated:
After years of review, we believe statements that this very broad Patriot Act collection [of phone records] has been “a critical tool in protecting the nation” do not appear to hold up under close scrutiny. We remain unconvinced that the secret Patriot Act collection has actually provided any uniquely valuable intelligence. As far as we can see, all of the useful information that it has provided appears to have also been available through other collection methods that do not violate the privacy of law-abiding Americans in the way that the Patriot Act collection does. Press Release, Office of Sen. Ron Wyden, Wyden, Udall Question the Value and Efficacy of Phone Records Collection in Stopping Attacks, June 7, 2013, http://1.usa.gov/19Q1Ng1 (emphasis added). The Senators could not be clearer: the government has more modest alternatives at its disposal, which would produce the same intelligence value while vacuuming up far fewer phone records.
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Finally, the program imposes a heavy and immediate burden on Plaintiffs’ First Amendment rights. In cases where investigative methods unnecessarily invade First Amendment rights, the Second Circuit has approved significant narrowing of government demands for information. In Local 1814, the Second Circuit found that a subpoena compelling disclosure of union members’ payroll records would have an “inevitable chilling effect” on the organization’s activities. 667 F.2d at 273–74. Accordingly, the Court narrowed the subpoena, whittling it down from the 450 names sought to a subset of only 45. This modification, the Second Circuit held, would “appropriately limit the impairment of longshoremen’s First Amendment rights without compromising the Commission’s legitimate investigative needs.” Id. at 274; see also Bursey v. United States, 466 F.2d 1059, 1083 (9th Cir. 1972), overruled in part on other grounds, In re Grand Jury Proceedings, 863 F.2d 667, 669–70 (9th Cir. 1988) (affirming refusal to answer grand-jury questions on First Amendment grounds where the interrogation bore no “substantial connection to the compelling subject matter of the investigation”); In re Grand Jury Subpoena, 701 F.2d at 119 (remanding for evidentiary hearing to determine whether subpoena would chill associational rights and, if so, whether breadth of subpoena could be limited); United States v. Citizens Bank, 612 F.2d 1091, 1094–95 (8th Cir. 1980).
The mass call-tracking program fails the First Amendment test set out in every one of these cases: it reaches far beyond the government’s legitimate investigative ends, while needlessly encroaching on Plaintiffs’ freedom of association and expression. II. Plaintiffs will suffer irreparable injury if preliminary relief is withheld.
Plaintiffs assert injuries flowing from the mass call-tracking program’s violation of their Fourth and First Amendment rights as well as the program’s violation of Section 215. The Second Circuit has generally presumed irreparable harm where there is an alleged deprivation of constitutional rights. See, e.g., Statharos v. N.Y. City Taxi & Limousine Comm’n, 198 F.3d 317,
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322 (2d Cir. 1999) (finding “no separate showing of irreparable harm is necessary” in case involving alleged invasion of privacy “[b]ecause plaintiffs allege deprivation of a constitutional right”); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984); Public Serv. Co. of N.H. v. Town of W. Newbury, 835 F.2d 380, 382 (1st Cir. 1987) (observing that presumption of irreparable harm is commonly applied in “cases involving alleged infringements of free speech, association, privacy, or other rights as to which temporary deprivation is viewed of such qualitative importance as to be irremediable by any subsequent relief”); see also Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992) (applying presumption of irreparable harm in case alleging Fourth Amendment violations); Ligon v. City of N.Y., No. 12 Civ. 2274, 2013 WL 628534, at *39 (S.D.N.Y. Feb. 14, 2013) (same); Bray v. City of N.Y., 346 F. Supp. 2d 480, 489 (S.D.N.Y. 2004) (Pauley, J.) (finding plaintiffs’ allegation of Fifth Amendment injury satisfied irreparable-harm requirement).21
Here, Plaintiffs would satisfy the irreparable-harm standard even if the presumption did not apply. The continuation of the surveillance at issue here would involve the continuation of the government’s intrusion into Plaintiffs’ sensitive associations and communications. The courts have repeatedly held that the compelled disclosure of sensitive information constitutes irreparable injury. See Hirschfeld v. Stone, 193 F.R.D. 175, 185–86 (S.D.N.Y. 2000) (Pauley, J.) (finding that disclosure of individual “medical histories, HIV status, substance abuse, and other intimate details of their personal lives” constitutes irreparable injury); Slevin v. City of N.Y., 477
21 The Second Circuit has modified this presumption when examining certain First Amendment injuries: irreparable harm may be presumed “[w]here a plaintiff alleges injury from a rule or regulation that directly limits speech,” but “where a plaintiff alleges injury from a rule or regulation that may only potentially affect speech, the plaintiff must establish a causal link between the injunction sought and the alleged injury.” Bronx Household of Faith v. Bd. of Educ. of City of N.Y., 331 F.3d 342, 349–50 (2d Cir. 2003); see Bray, 346 F. Supp. 2d at 487–89 (distinguishing First and Fifth Amendment irreparable-harm analyses).
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Case 1:13-cv-03994-WHP Document 26 Filed 08/26/13 Page 47 of 48
F. Supp. 1051, 1052 (S.D.N.Y. 1979) (finding that compelled disclosure of financial records constitutes irreparable harm); see also Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981) (“[T]he right of privacy must be carefully guarded for once an infringement has occurred it cannot be undone by monetary relief.”). When the government takes this private information for its own purposes, the injury is immediate—it is complete as soon as the government interjects itself into the zone of privacy. Cf. United States v. Head, 416 F. Supp. 840, 843 (S.D.N.Y. 1976) (zone of privacy includes areas “in which an individual has a reasonable expectation that governmental forces will not intrude”). The government’s queries in its call-records database compound this injury. Each time the government queries the database for any identifier, it analyzes Plaintiffs’ calling records in order to determine whether there are matches. Thus, any query involves inspection of Plaintiffs’ phone records; indeed, the government is collecting these records precisely because it wishes to sift through them for contacts within one, two, or three hops of its targets. These queries inevitably expose Plaintiffs’ sensitive information and associational contacts to government scrutiny, see supra Parts I.B.1, I.C, and the resulting invasion of privacy is an injury that cannot be undone.
The government’s searches of the mass call-tracking database work a further irreparable injury: they impose a far-reaching chill on Plaintiffs’ First Amendment activities by discouraging vital sources of information from coming forward. See supra Part I.C. Plaintiffs, through their declarations, have demonstrated that the mass call-tracking program promises to deter whistleblowers, potential clients, and others who reasonably fear being identified by the government. The NSA’s collection and searching of Plaintiff’s call records is the direct cause of this chilling effect, and the ongoing damage to Plaintiffs’ advocacy, public-interest litigation, and
38

Case 1:13-cv-03994-WHP Document 26 Filed 08/26/13 Page 48 of 48

legislative efforts cannot be remedied after the fact. See Mullins v. City of N.Y., 634 F. Supp. 2d

373, 392 (S.D.N.Y. 2009).

CONCLUSION

For the foregoing reasons, the Court should grant Plaintiffs’ motion and enter a

preliminary injunction that, during the pendency of this suit, (i) bars Defendants from collecting

Plaintiffs’ call records under the mass call-tracking program, (ii) requires Defendants to

quarantine all of Plaintiffs’ call records already collected under the program, and (iii) prohibits

Defendants from querying metadata obtained through the program using any phone number or

other identifier associated with Plaintiffs.

Respectfully submitted,

Christopher T. Dunn (CD-3991) Arthur N. Eisenberg (AE-2012) New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, NY 10004 Phone: (212) 607-3300 Fax: (212) 607-3318 aeisenberg@nyclu.org

/s/ Jameel Jaffer Jameel Jaffer (JJ-4653) Alex Abdo (AA-0527) Brett Max Kaufman (BK-2827) Patrick Toomey (PT-1452) Catherine Crump (CC-4067) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 jjaffer@aclu.org

August 26, 2013

39

 
 14‐42 ACLU v. Clapper

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2015

(Argued: September 2, 2015 Decided: October 29, 2015)

Docket No. 14‐42‐cv

________________

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

— v. —

Plaintiffs‐Appellants,

JAMES R. CLAPPER, in his official capacity as Director of National Intelligence, MICHAEL S. ROGERS, in his official capacity as Director of the National Security
Agency and Chief of the Central Security Service, ASHTON B. CARTER, in his official capacity as Secretary of Defense, LORETTA E. LYNCH, in her 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‐Appellees.

B e f o r e: SACK and LYNCH , Circuit Judges, and BRODERICK, District Judge.*
__________________
Plaintiffs‐appellants American Civil Liberties Union and American Civil
Liberties Union Foundation, and New York Civil Liberties Union and New York
Civil Liberties Union Foundation, move for a preliminary injunction, requesting
various relief. We conclude that Congress intended to authorize the continuation
of the bulk telephone metadata collection program for a limited period of 180
days, and decline to reach the constitutional issues for prudential reasons. We
therefore DENY the motion for a preliminary injunction and REMAND for
further proceedings in the district court.
ALEXANDER ABDO, American Civil Liberties Union Foundation (Jameel Jaffer, Patrick Toomey, American Civil Liberties Union Foundation, New York, NY; Christopher T. Dunn, Arthur N. Eisenburg, New York Civil Liberties Union Foundation, New York, NY, on the brief), New York, NY, for Plaintiffs‐Appellants.
HENRY C. WHITAKER, United States Department of Justice (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, United States Department of Justice, Washington, DC; Douglas N. Letter, H. Thomas
* The Honorable Vernon S. Broderick, of the United States District Court for the Southern District of New York, sitting by designation.
2

Byron III, Civil Division, Appellate Staff, United States Department of Justice, Washington, DC; Preet Bharara, United States Attorney for the Southern District of New York, New York, NY; David S. Jones, John D. Clopper, Benjamin H. Torrance, Assistant United States Attorneys, New York, NY, on the brief), Washington, DC, for Defendants‐Appellees.
GERARD E. LYNCH, Circuit Judge: This opinion concerns the effect of the passage of the USA FREEDOM Act
(“Freedom Act”) on ongoing litigation surrounding the legality of the government’s bulk telephone metadata collection program. We addressed the merits in an earlier opinion, ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015). In that opinion we held that the bulk telephone metadata collection program was not authorized by provisions of the USA PATRIOT Act (“Patriot Act”). Subsequent to that decision, Congress passed the Freedom Act, which effectively put an end to the telephone metadata program and created an alternative program, but provided for a 180‐day transition period. The effect of this transition period is the primary issue before the Court. Appellants move for a preliminary injunction to bar the government, during the pendency of the litigation, from collecting Appellants’ call records under the telephone metadata program, to require the government to quarantine all of Appellants’ call records already collected under
3

the program, and to prohibit the government from querying metadata obtained through the program using any phone number or other identifier associated with them. While we find that Appellants’ claims are not moot at this time, we decline to disturb the decision by Congress to provide for a 180‐day transition period to put an orderly end to the telephone metadata program. We therefore deny the motion for a preliminary injunction.
BACKGROUND The underlying appeal concerns the legality of the bulk telephone metadata collection program, under which the National Security Agency (“NSA”) collects metadata about telephone calls made by and to Americans, and aggregates those metadata into a repository that can later be queried. Telephone metadata does not include the contents of a telephone call, but rather the details about the call, such as the length of the call, the phone number from which the call was made, and the phone number at which the call was received – information sometimes referred to as call detail records. Attention to the issue of bulk surveillance of American citizens by the government has sharply increased among the American public, the courts, and the legislature since Edward Snowden began his highly publicized disclosures of
4

confidential information about the program in 2013. Recently, we issued an
opinion in this case, finding that the bulk telephone metadata program in use by
the NSA was not authorized by § 215 of the USA PATRIOT Act of 2001, Pub. L.
No. 107‐56, 115 Stat. 272 (2001), which amended the Foreign Intelligence
Surveillance Act of 1978 (“FISA”), Pub. L. No. 95‐511, 92 Stat. 1783 (1978)
(codified as amended at 50 U.S.C. §§ 1801 et seq.). Shortly thereafter, Congress
allowed the Patriot Act to expire, then passed the USA FREEDOM Act of 2015,
Pub. L. No. 114‐23, 129 Stat. 268 (2015), which altered § 215 in significant ways.
I. Section 215
In 1978, Congress enacted FISA, comprehensive legislation aimed at
curtailing abuses and delineating procedures to be employed in conducting
surveillance in foreign intelligence investigations. Congress amended FISA after
the terrorist attacks of September 11, 2001, in the Patriot Act.
Section 215 of the Patriot Act allows the director of the FBI or his designee to
make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.
5

50 U.S.C. § 1861(a)(1). In its current form, in effect until November 29, 2015, the
provision requires such an application to include
a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.
Id. § 1861(b)(2)(A).
II. The May 7 Order
On June 11, 2013, the appellants in this matter, the American Civil Liberties
Union and American Civil Liberties Union Foundation (collectively, “ACLU”)
and the New York Civil Liberties Union and New York Civil Liberties Union
Foundation (collectively, “NYCLU”) sued the government officials responsible
for administering the telephone metadata program, challenging the program on
both statutory and constitutional grounds and seeking declaratory and injunctive
relief. Appellants’ complaint asked the court to declare that the telephone
metadata program exceeded the authority granted by § 215, and also violated the
First and Fourth Amendments to the U.S. Constitution. The complaint also asked
6

the court to permanently enjoin the government from continuing the program, and to order the government to “purge from their possession all of the call records of Plaintiffs’ communications” collected in accordance with the program. Complaint at 10, ACLU v. Clapper, No. 1:13‐cv‐03994‐WHP (S.D.N.Y. 2013).
On May 7, 2015, this Court held that § 215 of the Patriot Act did not authorize the bulk telephone metadata program. We reasoned that if Congress had intended to authorize bulk collection of virtually all metadata associated with telephone calls made by and to Americans, it would have done so explicitly. The collection of these call detail records was not “relevant” to authorized counterterrorism investigation by the government under 50 U.S.C. § 1861(b)(2)(A), and thus, the telephone metadata program exceeded the authority granted by FISA. Clapper, 785 F.3d at 818–19, 826. III. The USA FREEDOM Act
Section 215, along with certain other provisions of the Patriot Act, expired on June 1, 2015. See PATRIOT Sunsets Extension Act of 2011, Pub. L. No. 112‐14, 125 Stat. 216 (2011). On June 2, 2015, Congress passed the Freedom Act, which the President has signed into law. The Freedom Act amends § 215 in significant ways.
7

The Freedom Act amends § 215 of the Patriot Act to permit the government to collect call detail records under 50 U.S.C. § 1861 only if it meets certain “additional requirements,” including a “reasonable, articulable suspicion that such specific selection term is associated with a foreign power . . . or an agent of a foreign power engaged in international terrorism or activities in preparation therefor.” USA FREEDOM Act § 101(a)(3). This provision provides for more narrowly tailored and targeted collection of call detail records. Section 101 also requires the government to adopt minimization procedures that “require the prompt destruction” of call detail records produced that it determines are not foreign intelligence information. Id. § 101(b)(3)
Section 103 of the Freedom Act, titled “Prohibition on Bulk Collection of Tangible Things,” states that “[n]o order issued under this subsection may authorize the collection of tangible things without the use of a specific selection term” that meets certain requirements. Id. The purpose of § 103 is to “make[] clear that the government may not engage in indiscriminate bulk collection of any tangible thing or any type of record.” H.R. Rep. No. 114‐109, pt. 1, at 18 (2015). Section 103 is also intended to “restore meaningful limits to the
8

‘relevance’ requirement of Section 501, consistent with the opinion of the U.S.
Court of Appeals for the Second Circuit in ACLU v. Clapper.” Id. at 19.
Largely at issue in the present dispute is § 109, titled “Effective Date,”
which delays the effective date of §§ 101–103 above, sections dealing specifically
with the telephone metadata program. Section 109 states, “The amendments
made by sections 101 through 103 shall take effect on the date that is 180 days after the date of the enactment of this Act.”1 Section 109 further states that
[n]othing in this Act shall be construed to alter or eliminate the authority of the Government to obtain an order under title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) as in effect prior to the effective date described in subsection (a) during the period ending on such effective date.
USA FREEDOM Act § 109.
On the day the Freedom Act was enacted, the government asked the
Foreign Intelligence Surveillance Court (“FISC”), which provides judicial
oversight of classified intelligence community activities, to allow it to continue
the telephone metadata program during the 180‐day transition period, arguing
that § 109 constituted an authorization to continue bulk collection during that
1 As the Act was enacted on June 2, 2015, the effective date for §§ 101–103 became November 29, 2015.
9

period to “allow for the orderly termination” of that collection. See Mem. of Law at 5, In re Application of the FBI for an Order Requiring the Production of Tangible Things, No. BR 15‐75 (FISA Ct. June 2, 2015). On June 29, the FISC granted the June 2 application of the government to continue the bulk data collection for the 180‐day period. Opinion & Order, In re Application of the FBI for an Order Requiring the Production of Tangible Things, No. BR 15‐75 (FISA Ct. June 29, 2015).
On June 9, this Court directed the parties to submit supplemental briefs regarding the effect of the Freedom Act on the case, and in particular whether any or all of Appellants’ claims had been rendered moot as a result of that legislation. We further ordered that the issuance of the mandate in this action be stayed pending the parties’ supplemental briefing. Appellants responded to this order by moving for a preliminary injunction to halt the telephone metadata program, during the pendency of this suit, with regards to themselves, and requesting that the case be remanded to the district court for further consideration and the entry of final relief.
10

DISCUSSION I. Mootness
Appellants seek, through a preliminary injunction during the pendency of this suit, to bar the government from collecting Appellants’ call records under the telephone metadata program, to require the government to quarantine all of Appellants’ call records already collected under the program, and to prohibit the government from querying metadata obtained through the program using any phone number or other identifier associated with them. They also ask the Court to remand the case so that the district court may grant the final relief they seek, to end the bulk telephone metadata program, and purge the records collected unlawfully. These requests assume that their claims are not moot.
First, Appellants ask us to enjoin the government from continuing to collect and query their call detail records during the 180‐day transition period. Appellants argue, and the government concedes, that these claims are not moot, because a decision to grant a preliminary injunction on behalf of the plaintiffs by this Court would have effect, at least until November 29. Therefore, Appellants’ request for relief to halt the collection and querying of Appellants’ records during the 180‐day transition period is not moot.
11

Appellants and the government disagree, however, regarding the mootness of the final relief requested after November 29: an injunction that would require the government to end the telephone metadata program and purge records collected unlawfully. Appellants argue that the government intends to retain the records “indefinitely,” and are under no outside obligation to purge them, and thus that their claims for relief will not become moot on November 29. The government argues that the claims will be moot on November 29, because the telephone metadata program will cease at that time, and an order enjoining the telephone metadata program will have no effect.
Further, the government notes that the Office of the Director of National Intelligence has announced that the government will not use § 215 data for law enforcement or investigatory purposes after November 29. See Statement by the ODNI on Retention of Data Collected Under Section 215 of the USA PATRIOT Act (July 27, 2015). Additionally, the government states that it will destroy all records as soon as possible after the government’s litigation‐preservation obligations end, id., and thus Appellants’ requests that their information no longer be queried and that their records be purged will also be moot.
However, Appellants have asked us to remand to the district court for 12

consideration of its final relief, and relief after November 29 is not requested under the preliminary injunction. Whether a federal court has the authority to order the government to purge records, and which if any of Appellants’ claims become moot on November 29, are questions for the district court. See e.g., Doe v. Gonzalez, 449 F.3d 415, 419 (2d Cir. 2006) (remanding to allow the district court to address constitutional questions in the first instance following legislative revision of the statute at issue); Cf. Lewis v. Continental Bank Corp., 494 U.S. 472, 482 (1990) (“[I]n instances where the mootness is attributable to a change in the legal framework governing the case, and where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously, our practice is to vacate the judgment and remand for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully.”). The claims for which Appellants now seek a preliminary injunction are not moot, at least at this time, as the government concedes. We therefore proceed to determine whether Appellants are entitled to such an injunction. II. Preliminary Injunction
A preliminary injunction is an equitable remedy and an act of discretion by 13

the court. A party seeking a preliminary injunction must generally show a likelihood of success on the merits, a likelihood of irreparable harm in the absence of preliminary relief, that the balance of equities tips in the party’s favor, and that an injunction is in the public interest. Winter v. NRDC, 555 U.S. 7, 20 (2008).
Appellants argue that they are likely to succeed on the merits, because this Court earlier held that the telephone metadata program was not authorized by § 215, which the Freedom Act leaves in place as the governing law for the 180‐ day transition period, and that they will suffer irreparable injury, because irreparable harm is presumed where there is an alleged deprivation of constitutional rights. Statharos v. New York City Taxi & Limousine Comm’n, 198 F.3d 317, 322 (2d Cir. 1999). Even if this presumption does not apply, they argue, the continuation of the telephone metadata program means the continuation of the government’s intrusion into Appellants’ private communications. They argue that the government will not be unduly harmed by the narrow preliminary injunction as to their records that they request at this time.
First, we must determine whether the Freedom Act authorizes the continuation of the bulk telephone metadata collection program during the 180‐
14

day transition period. Appellants argue that the transition period cannot authorize the use of bulk collection, because we earlier found that the plain language of the statute did not authorize it, and Congress did not change the language for the duration of the 180‐day period. The government argues that, in context, the inclusion of a 180‐day delay can only mean that Congress intended to allow the telephone metadata program to continue during the transition period, in order to facilitate the orderly transition to the new, targeted surveillance regime.
Certainly it is true that if statutory language is plain, we must enforce it according to its terms. Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010). However, “when deciding whether the language is plain, we must read the words in their context and with a view to their place in the overall statutory scheme.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (internal quotation marks omitted). We must also strive to avoid interpretations of a statute that would render any phrase or provision superfluous. TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001).
Appellants note that we earlier held that a decision by Congress to authorize such surveillance must be “expressed in unmistakable language.”
15

Clapper, 785 F.3d at 818. They argue that because Congress left the language of the Act unchanged during the transition period, the surveillance must remain unauthorized. Because Congress was legislating, as the ACLU puts it, “in the shadow of this Court’s May 7 opinion,” it could only have meant, by delaying the effective date of §§ 101–103, to legislatively ratify our understanding of the statute as not authorizing bulk collection. Motion & Brief for Appellants at 10. While this line of reasoning has some surface appeal, we must disagree.
To argue that the plain language of the present statute is clear based on its previous form is spurious. Congress passed the Freedom Act in part to prohibit bulk telephone metadata collection, and in doing so endorsed our understanding of the key term “relevance.” See H.R. Rep. No. 114‐109, at 19. Contrary to Appellants’ assertion, the language of the Act as a whole has not remained unchanged. The statute has been amended in several important respects, including to prohibit bulk telephone metadata collection, with a provision delaying that effective date by 180 days. That is far from a mere reenactment that fails to give a clear indication that Congress made an affirmative decision regarding its intention.
16

In the same passage of our prior opinion noting the requirement of “unmistakable language,” we further noted that we would expect a decision by Congress whether to authorize a program such as the bulk telephone metadata collection to be “preceded by substantial debate.” Clapper, 785 F.3d at 818. That debate has now unquestionably occurred. Unlike previous extensions of the Patriot Act, the Freedom Act was the result of more than two years of discussion and debate by Congress over the proper scope of bulk data collection under § 215. While the present Congress cannot tell us what the Congress that passed the Patriot Act intended to authorize, its intent in passing the Freedom Act is clear. The 180‐day transition period represents Congress’s considered judgment that there should be time for an orderly transition from the existing program to the new, targeted surveillance program. That orderly transition requires that the government retain the tools it has been using to investigate threats of foreign terrorism until new tools may be put in place. We agree with the government that Congress reached a compromise, supported by the President: to end the telephone metadata program, but to allow for a 180‐day transition period. The intention of the democratically elected branches of government is thus clear.
17

Looking to the legislative history, which is informative though not decisive, the discussions regarding the 180‐day transition period lend credence to this compromise. First, Congress had before it the government’s representations that the NSA’s transition to the new model of targeted production would require time to be “fully operational.” 161 Cong. Rec. S3275 (daily ed. May 22, 2015) (statement of Sen. Leahy) (quoting letter from National Security Agency Director). Second, there was explicit debate in Congress as to the exact length of the transition period. Some members of Congress desired a longer transition period to “make sure the technology is in place for this program to continue.” See 161 Cong. Rec. S3391 (daily ed. June 1, 2015) (statement of Sen. Burr). Other members preferred to keep the transition period to 180 days, and explicitly rejected proposals to “include a provision to keep the bulk collection program in place for more than two years” because the “NSA Director stated . . . that the NSA only needs 180 days to transition to the new targeted program.” 161 Cong. Rec. S3275 (daily ed. May 22, 2015) (statement of Sen. Leahy). A “shared premise” of Congress in debating the length of the transition period, the government argues, was that the bulk collection would continue during the transition period. Brief for Appellees at 9.
18

Appellants point to no evidence in the legislative history to support the contrary proposition that Congress intended to ban bulk telephone metadata collection immediately, despite including explicit language in the statute delaying the effect of its prohibition of the prior program for 180 days. Appellants argue weakly that the clarification of “relevance” is meant to end the telephone metadata program immediately. The committee report on the Freedom Act states that “Congress’ decision to leave in place the ‘relevance’ standard for Section 501 orders should not be construed as Congress’ intent to ratify the FISA Court’s interpretation of that term.” H. R. Rep. No. 114‐109, at 18‐ 19. To explain the later effective date of §§ 101–103 provided by § 109, Appellants argue that it is “best understood as Congress’s effort to ensure that bulk collection would end no matter how courts ultimately understood the concept of ‘relevance.’” Reply Brief for Appellants at 6. However, there is not one iota of evidence that this complicated rationale was the reason for the later effective date, nor have Appellants pointed us to any evidence to demonstrate that any member of Congress intended or believed that bulk collection would end the day the bill was passed.2 Further, the “relevance” language remains in 2 While not specifically treated as a canon of statutory interpretation, Occam’s razor is apropos here. See, e.g., Oxford English Dictionary (3d Ed. 2004)
19

the statute as amended after the 180‐day transition period, and thus we agree with the government that the clarification of the relevance standard, like the other amendments to the telephone metadata program, is meant to apply to the statute after the 180‐day transition period.
Most convincingly, the government argues that the language of FISA, as amended by the Freedom Act, demonstrates that Congress intended for the telephone metadata program to continue during the transition period. That Congress did not change the language of § 215 must be viewed in the context of the larger changes to the statute. See King v. Burwell, 135 S. Ct. at 2489. The Freedom Act made many amendments to FISA, including banning other types of bulk collection, such as that for pen registers and trap and trace orders,3 but enacted no such transition provision as that in § 109 to delay the effect of other bans on bulk collections. It makes no sense to conclude that Congress, while providing for the immediate effect of other amendments, also intended for bulk
(defining Occam’s razor as “[t]he principle . . . that in explaining anything, no more assumptions should be made than are necessary.”). 3 H.R. Rep. No. 114‐109, at 21 (“[Section 201] prohibits the use of the pen register and trap and trace device authority for bulk collection by requiring each application under this section to include a specific selection term as the basis for the use of a pen register or trap and trace device.”).
20

telephone metadata collection to end immediately, by including language that those provisions not take effect for 180 days.
Finally, giving immediate effect to the ban on bulk telephone metadata collection would render the language of § 109 superfluous. See TRW, 534 U.S. at 31. Appellants’ tenuous argument that the clarification of the relevance standard was meant to take effect in the meantime, with the final ban merely sealing the deal, is unconvincing. If Congress had intended to end bulk collection on June 2, it would have simply said so, or at least, as in the remainder of the Freedom Act, said nothing to the contrary. The language of § 215 as amended by the Freedom Act indicates that Congress intended the telephone metadata program to continue during the transition period.
Regardless of whether the bulk telephone metadata program was illegal prior to May, as we have held, and whether it would be illegal after November 29, as Congress has now explicitly provided, it is clear that Congress intended to authorize it during the transitionary period. Our interpretation of § 215 as amended by the Freedom Act leads us to conclude that, at this point, Appellants have not shown a likelihood of success on the merits. See Winter, 555 U.S. at 20. We therefore reject Appellants’ argument that the government should be
21

enjoined on the ground that the bulk telephone metadata program continues to
be unauthorized by statute.
III. Constitutional Issues
Appellants argue that if we decide, as we now have, that Congress allowed
the telephone metadata program to continue during the 180‐day transition
period, we must reach the “vexing” constitutional issues we earlier avoided:
whether § 215 violates Appellants’ rights under the Fourth and First
Amendments to the Constitution. The question posed by Appellants invokes one
of the most difficult issues of modern jurisprudence: whether modern technology
changes traditional and reasonable expectations of privacy. The Fourth
Amendment issue raised here, as we noted earlier, is a “dispute [that] touches an
issue on which the Supreme Court’s jurisprudence is in some turmoil.”4 Clapper,
785 F.3d at 821. Whatever we might ultimately conclude about the Constitution’s 4 Appellants contend that the seizure of their telephone records violates their reasonable expectation of privacy. Katz v. United States, 389 U.S. 347 (1967). The government invokes the third‐party doctrine of Smith v. Maryland, 442 U.S. 735, 743–44, to assert that Appellants have no privacy rights in the records, because telephone metadata is voluntarily turned over to third‐party phone providers. While we noted earlier that “in today’s technologically based world, it is virtually impossible for an ordinary citizen to avoid creating metadata about himself on a regular basis simply by conducting his ordinary affairs,” Clapper, 785 F.3d at 794, we need not decide today the relationship between changing expectations of privacy and third‐party providers.
22

demands in such a novel and contentious area, it is, at a minimum, difficult to conclude that Appellants are “likely to succeed” in arguing that new conditions require a reconsideration of the reach of a long‐established precedent.
The government urges us not to reach these issues, because we should respect the judgment of the democratically elected branches of government to dismantle the program in a way that heeds national security concerns. We agree with the government that we ought not meddle with Congress’s considered decision regarding the transition away from bulk telephone metadata collection, and also find that addressing these issues at this time would not be a prudent use of judicial authority. We need not, and should not, decide such momentous constitutional issues based on a request for such narrow and temporary relief.5 To do so would take more time than the brief transition period remaining for the telephone metadata program, at which point, any ruling on the constitutionality of the demised program would be fruitless.
Appellants reanimate their earlier arguments without heed to the drastically different context in which they now arise. The question is not whether 5 The Supreme Court declined to resolve a similar question in United States v. Jones, 132 S. Ct. 945, 951–53 (2012), deciding the issue presented on a technical trespass theory rather than deciding whether the use of modern technology required a change in existing doctrine regarding expectations of privacy.
23

Congress may constitutionally authorize this type of bulk data collection indefinitely, but whether Congress may, in dismantling a program of this type, authorize a transitional period with a clear end point. Allowing the program to remain in place for the short period that remains at issue is the prudent course. Such a transitional period would likely have been appropriate even had we held § 215 unconstitutional in our earlier decision in the instant matter.6
Congress has decided, after nearly two years of debate, that this type of data collection shall not be authorized in the future. An abrupt end to the program would be contrary to the public interest in effective surveillance of terrorist threats, and Congress thus provided a 180‐day transition period. Under the circumstances, we will defer to that reasonable decision.
CONCLUSION Congress reacted to growing privacy concerns by passing the Freedom Act and ending the bulk telephone metadata collection program, and transitioning to a new targeted surveillance program aimed at protecting the United States from foreign terrorism. What if any legal challenges arise from the new system have
6 Indeed, Appellants themselves did not seek relief until nearly one third of the period had elapsed, and only after we had raised the question of mootness and solicited further briefing.
24

yet to be seen. Congress has balanced privacy and national security by providing for a 180‐day transition period, a decision that it is uniquely suited to make. Congress’s decision to do so should be respected.
For the foregoing reasons, we conclude that § 215 authorizes the telephone metadata collection program for the period of 180 days from the Freedom Act’s enactment, as part of a larger move to dismantle the program. We decline to reach the constitutional issues, and deny a preliminary injunction at this time, as the effect would be limited to the time before November 29, when the nature of the harm complained of by Appellants will change, and would require resolving momentous Constitutional issues. We do not address whether Appellants’ claims will become moot on November 29, and leave this, and all other remaining questions, to the district court in the first instance. Accordingly, we DENY the motion for a preliminary injunction and REMAND the matter for further proceedings in the district court consistent with this opinion and our prior opinion in this case.
25

 
 Case 1:13-cv-03994-WHP Document 88 Filed 01/19/16 Page 1 of 3

LEGAL DEPARTMEN~ase .1:1 -

87 Filed 01/07/16 Page 1 of 3

EMO ENDORSED

January 7, 2016

AMERICAN CIVIL liBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10001,-2400 T/712.549.2500 F/212.5119.2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. //EllMAN PRESIDENT
MHHONY D. ROMERO EXECUTIVE 0/RECTOII

BYECF
Honorable William H. Pauley III United States District Court for the
Southern District ofNew York 500 Pearl Street, Room 2210 New York, NY 10007
Re: ACLU v. Clapper, No. 13-cv-3994 (WHP) Status Report
Dear Judge Pauley,
The parties in the above-referenced case write in response to this Court's order of December 11,2015 directing the parties to file a joint report addressing the status of this litigation in light of the issuance of the Second Circuit's mandate.
To review the procedural history briefly: In their Complaint, Plaintiffs asked the Court to enjoin the NSA's call-records program and to require the NSA to purge Plaintiffs' call records collected under the program. Shortly after filing suit, Plaintiffs moved for a preliminary injunction against the continued collection of their records. This Court denied that motion, holding that the NSA's bulk collection of call records was authorized by Section 215. On appeal, the Second Circuit disagreed with this Court's conclusion as to the lawfulness of the call-records program, and it vacated this Court's earlier opinion. I It denied Plaintiffs' request for a preliminary injunction, however, observing that Congress had enacted legislation that would end the bulk collection that Plaintiffs complained about. 2 The Second Circuit remanded the case to allow this Court to consider Plaintiffs' entitlement to any further relief.
The main issue still to be resolved is whether Plaintiffs are entitled to an order requiring expungement of their call records collected under the program. Whether and to what extent Plaintiffs will continue to seek that relief, however,

I ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015). 2 ACLU v. Clapper, 804 F.3d 617 (2d Cir. 2015).
1

Case 1:13-cv-03994-WHP Document 88 Filed 01/19/16 Page 2 of 3 Case 1:13-cv-03994-WHP Document 87 Filed 01/07/16 Page 2 of 3

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICe 125 GROAO STI!cET,
18TH r·L.
[\lEW YORK, NY 10004-21~00 T/212.51,9.2500 F/212.549.26~1 WWW.ACLJ.OI1G
OFFICERS AND DIRECTORS SUSAN N. !iff/MAN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR

may be affected by proceedings ongoing in the FISC. The FISC recently approved the government's plan to retain for limited purposes certain call records collected under the program. Specifically, it approved (1) the government's retention of bulk call records for limited technical access until February 29, 2016, (2) the government's retention of call records as required by its preservation obligations in civil challenges to the program, and (3) the government's retention of previously disseminated information derived from queries of the call-records database and "select query results generated that formed the basis of such disseminations." 3

The FISC ordered supplemental briefing, however, that touches on an issue of central importance to Plaintiffs here-namely, whether the government's preservation obligations require it to retain all of the records it has collected in bulk, or only a subset of those records. Specifically, the FISC ordered the government to address "whether ... there might be a basis for seeking to lift the preservation orders [in three other cases in which challenges to the call-records program have been asserted] with respect to the [bulkcollected] Metadata that is not associated with the plaintiffs."4 The FISC ordered the government to submit a brief addressing that question, among others, by January 8, after which it is anticipated the FISC will issue a further order on the
matter.

The parties agree that the FISC's ruling on the government's upcoming filing may affect the necessity and nature of any further proceedings in this case. They therefore respectfully suggest that the Court order the parties to file a further status report within two weeks of the declassification of the FISC's
rumg.

PREET BHARARA United States Attorney for the Southern District ofNew York
By: /s/ DavidS. Jones DAVID S. JONES
Assistant United States Attorney 86 Chambers Street, 3rd Floor New York, NY 10007 (212) 637-2739 david.j ones6@usdoj.gov

Respectfully submitted,
/s/ Jameel Jaffer Jameel Jaffer Alex Abdo Brett Max Kaufman Patrick Toomey American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500

3 See Opinion and Order, No. BR 15-99, at 8 (F.I.S.C. Nov. 24, 2015), http://www.fisc.uscourts.gov/sites/default!files/BR%2015-99%200pinion%20 and%200rder.pdf. Plaintiffs note that it has not been publicly disclosed what is meant by the phrase referring to "select query results."
4 Id. at 8 n.3.

2

Case 1:13-cv-03994-WHP Document 88 Filed 01/19/16 Page 3 of 3 Case 1:13-cv-03994-WHP Document 87 Filed 01/07/16 Page 3 of 3

AMERICAN CIVIL LIBERTIES UNION FOUNDATION N/IT!ONAL OFciCE 125 BROAD STREE1, 18TH Fl. NEW YORK. NY 10004-2400 7/212.549.?500 F/212.51,9.2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS SUSAN N. HERMAN PRESIOFNT
ANTHONY D. ROMERO EXFCUTIVE DIRECTOR

Counselfor Defendants

jjaffer@aclu.org
Christopher T. Dunn Arthur N. Eisenberg New York Civil Liberties Union
Foundation 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300 aeisenberg@nyclu. org
Counsel for Plaintiffs

Application granted.

SO ORDERED:

3

 
 Case 1:13-cv-03994-WHP Document 90 Filed 05/06/16 Page 1 of 2

Case 1:
lEGAL DEPARTMENT

89 Filed 05/04/16 Page 1 of 2

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFIC[ 125 BROAD STREET, 18TH FL.. NEW YORK, NY 10004-2400 i"/212.549.2500 WWW.;\CLU.ORG
OFFICERS AND DIRECTORS SUS,\N N. I-lERMAN PRCSIDCNT
ANTHONY D. ROMERO fXEC!JTIVF 0/RECT0/1
ROBERT B. RE"iiiR TREASURER

May4, 2016

BYECF
Honorable William H. Pauley III United States District Court for
the Southern District ofNew York 500 Pearl Street, Room 2210 New York, NY 10007

DORSED

Re: ACLU v. Clapper, No. 13-cv-3994 (WHP) Joint status report

Dear Judge Pauley,
The parties write to provide the Court with an update on the current status ofthis litigation.
On January 7, 2016, the parties filed a joint status report, stating that the main issue remaining in this case since the Second Circuit's remand is whether Plaintiffs are entitled to an order requiring expungement of their call records collected under the NSA's call-records program. The parties noted that the Foreign Intelligence Surveillance Court ("FISC") had approved the government's retention of certain call records collected under the program for certain limited purposes, including as necessary to satisfy the government's preservation obligations in civil challenges to the program. The FISC had ordered supplemental briefing, however, on the question of whether the government's preservation obligations require it to retain all of the records it has collected in bulk, or only a subset of those records.
Because the briefing ordered by the FISC and any ruling issued on it concerned the central issue remaining in this suit, the parties requested that the Court require a further status report following any action taken by the FISC on the government's supplemental brief. The Court endorsed that request on January 19, 2016.
Since that time, the government has filed its supplemental brief in the FISC, and the FISC has now notified the government that it does not intend to take further action regarding the government's retention of call records for the purpose of satisfying its preservation obligations.

Case 1:13-cv-03994-WHP Document 90 Filed 05/06/16 Page 2 of 2 Case 1:13-cv-03994-WHP Document 89 Filed 05/04/16 Page 2 of 2

Separately, however, the Electronic Frontier Foundation-counsel for the plaintiffs in two of the lawsuits from which the government's preservation obligations arise-has approached the government with a proposal to modify the preservation orders in their suits to allow for the destruction of the NSA's database of records collected under the program. The government is now considering that proposal.
The government's consideration of that proposal may affect the necessity and nature of any further proceedings in this case. For that reason, the parties respectfully request that the Court require a further status report within two weeks of the conclusion of the government's discussions regarding the proposal.

AMERICAN CIVIL liBERTIES UNION FOUNDATION

PREET BHARARA United States Attorney for the Southern District ofNew York
By: Is/ David S. Jones DAVIDS. JONES
Assistant United States Attorney 86 Chambers Street, 3rd Floor New York, NY 10007 (212) 637-2739 david.j ones6@usdoj. gov
Counsel for Defendants

Respectfully submitted,
Is/ Alex Abdo Alex Abdo Jameel Jaffer Brett Max Kaufman Patrick Toomey American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 jjaffer@aclu.org

Application granted.
SO ORDERED:

Christopher T. Dunn Arthur N. Eisenberg New York Civil Liberties Union
Foundation 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300 aeisenberg@nyclu.org

Counselfor Plaintiffs

2

 
 Case 1:13-cv-03994-WHP Document 96 Filed 05/14/18 Page 1 of 4

Case 1:13-cv-03994-WHP Document 96 Filed 05/14/18 Page 2 of 4

Case 1:13-cv-03994-WHP Document 96 Filed 05/14/18 Page 3 of 4

Case 1:13-cv-03994-WHP Document 96 Filed 05/14/18 Page 4 of 4

14

May

 
 CLOSED,ECF,RELATED
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:13−cv−03994−WHP

American Civil Liberties Union et al v. Clapper et al Assigned to: Judge William H. Pauley, III Related Case: 1:11−cv−07562−WHP Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 06/11/2013 Date Terminated: 05/14/2018 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

American Civil Liberties Union

represented by Laura Donohue Georgetown Law 5417 Duvall Drive Bethesda, MD 20816 (202) 662−9455 Email: lkdonohue@law.georgetown.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander Abraham Abdo American Civil Liberties Union, Women's Rights Proj 125 Broad Street New York, NY 10004 (212) 549−2500 x2517 Fax: (2120 549−2654 Email: alex.abdo@knightcolumbia.org TERMINATED: 08/01/2017

Brett Max Kaufman American Civil Liberties Union 125 Broad Street New York, NY 10004 (212)−549−2603 Fax: (212)−549−2654 Email: bkaufman@aclu.org ATTORNEY TO BE NOTICED

Catherine Newby Crump American Civil Liberties Union Foundation (NYC) 125 Broad Street 18th Floor New York, NY 10004 (212) 519−7806 Fax: (212) 549−2651 Email: ccrump@aclu.org ATTORNEY TO BE NOTICED

Jameel Jaffer American Civil Liberties Union (NYC) 125 Broad Street, 18th Floor New York, NY 10004 (212) 549−7814 Fax: (212) 549−2629 Email: jameel.jaffer@knightcolumbia.org TERMINATED: 09/02/2016

Patrick Christopher Toomey American Civil Liberties Union (NYC)

Plaintiff American Civil Liberties Union Foundation
Plaintiff New York Civil Liberties Union
Plaintiff New York Civil Liberties Union Foundation

125 Broad Street, 18th Floor New York, NY 10004 (212) 519−7816 Fax: (212) 549−2654 Email: ptoomey@aclu.org ATTORNEY TO BE NOTICED
represented by Laura Donohue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Abraham Abdo (See above for address) TERMINATED: 08/01/2017
Jameel Jaffer (See above for address) TERMINATED: 09/02/2016
represented by Laura Donohue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Abraham Abdo (See above for address) TERMINATED: 08/01/2017
Jameel Jaffer (See above for address) TERMINATED: 09/02/2016
represented by Laura Donohue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander Abraham Abdo (See above for address) TERMINATED: 08/01/2017
Arthur Nelson Eisenberg New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 607−3300 Fax: (212) 607−3318 Email: arteisenberg@nyclu.org ATTORNEY TO BE NOTICED
Christopher T Dunn New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 344−3005 Fax: (212) 344−3318 Email: cdunn@nyclu.org ATTORNEY TO BE NOTICED

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

Jameel Jaffer (See above for address) TERMINATED: 09/02/2016
represented by Christopher Blake Harwood United States Attorney's Office Southern District Of New York 86 Chambers Street, Third Floor New York, NY 10007 (212) 637−2728 Fax: (212) 637−2786 Email: christopher.harwood@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Dalton Clopper U.S. Attorney's Office, SDNY 86 Chambers Street New York, NY 10007 212 637 2716 Fax: 212 637 0033 Email: john.clopper@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tara Marie La Morte DOJ−USAO Lrm Jones, Lisa 1 St. Andrews Plaza New York, NY 10007 212−637−1041 Email: tara.lamorte2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Stuart Jones U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 212−637−2200 Fax: 212−637−2686 Email: david.jones6@usdoj.gov ATTORNEY TO BE NOTICED
represented by Christopher Blake Harwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Dalton Clopper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tara Marie La Morte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Charles T. Hagel in his official capacity as Secretary of Defense
Defendant Eric H. Holder in his official capacity as Attorney General of the United States
Defendant Robert S. Mueller, III in his official capacity as Director of the Federal Bureau of Investigation

David Stuart Jones (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Blake Harwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Dalton Clopper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tara Marie La Morte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Stuart Jones (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Blake Harwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Dalton Clopper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tara Marie La Morte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Stuart Jones (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Blake Harwood (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Dalton Clopper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tara Marie La Morte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Stuart Jones (See above for address)

ADR Provider Amicus Curiae Pen American Center
Amicus Former Church Committee Members and Law Professors Amicus Electronic Frontier Foundation
Amicus National Rifle Association of America, Inc.
Amicus Professor Michael P. Lynch
Amicus Reporters Committee for Freedom of the Press

ATTORNEY TO BE NOTICED
represented by Edward J. Davis Davis Wright Tremaine LLP (NYC) 1251 Avenue of the Americas New York, NY 10020 (212) 489−8230 Fax: (212) 489−8340 Email: eddavis@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Laura Donohue (See above for address) ATTORNEY TO BE NOTICED
represented by David Allen Greene Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 (415)−436−9333 Fax: (415)−436−9993 Email: davidg@eff.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by John Frazer Law Office of John Frazer, PLLC 3925 Chain Bridge Road, Suite 403 Fairfax, VA 22030 (703) 352−7276 Email: john.frazer@nrahq.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by David Benjamin Owens Loevy & Loevy 312 N. May St., Suite 100 Hauppauge, NY 60607 (312)−243−5900 Fax: (312)−243−5902 Email: David@loevy.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michael Douglas Steger Law Offices of Michael D. Steger, PC 30 Ramland Road, Suite 201 Orangeburg, NY 10962 (646) 517−0600 Fax: (845) 689−2155 Email: msteger@steger−law.com

Amicus F. James Sensenbrenner
Amicus Pen American Center

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Allen Greene (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Edward J. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Jane Steinman Davis Wright Tremaine LLP (NYC) 1633 Broadway New York, NY 10019 212−603−6409 Fax: 212−489−8340 Email: lindasteinman@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Joel Feder Davis Wright Tremaine LLP (NYC) 1633 Broadway New York, NY 10019 (212) 489−8230 Fax: (212) 489−8340 Email: ericfeder@dwt.com ATTORNEY TO BE NOTICED

Date Filed 06/11/2013
06/11/2013 06/11/2013 06/11/2013 06/14/2013 06/14/2013 06/14/2013 06/25/2013

# Docket Text
1 COMPLAINT against Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III. (Filing Fee $ 350.00, Receipt Number 1069477)Document filed by American Civil Liberties Union Foundation, New York Civil Liberties Union Foundation, New York Civil Liberties Union, American Civil Liberties Union.(laq) (jd). (Entered: 06/12/2013)
SUMMONS ISSUED as to Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III. (laq) (Entered: 06/12/2013)
CASE REFERRED TO Judge William H. Pauley as possibly related to 1:11−cv−7562. (laq) (Entered: 06/12/2013)
Case Designated ECF. (laq) (Entered: 06/12/2013)
CASE ACCEPTED AS RELATED. Create association to 1:11−cv−07562−WHP. Notice of Assignment to follow. (pgu) (Entered: 06/14/2013)
2 NOTICE OF CASE ASSIGNMENT to Judge William H. Pauley, III. Judge Unassigned is no longer assigned to the case. (pgu) (Entered: 06/14/2013)
Magistrate Judge James L. Cott is so designated. (pgu) (Entered: 06/14/2013)
3 AFFIDAVIT OF SERVICE. James R. Clapper served on 6/24/2013, answer due 7/15/2013. Service was made by Mail. Document filed by American Civil Liberties Union Foundation; New York Civil Liberties Union Foundation; New York Civil Liberties Union; American Civil Liberties Union. (Jaffer, Jameel) (Entered: 06/25/2013)

06/25/2013 06/25/2013 06/25/2013 06/25/2013 06/25/2013 06/26/2013 06/27/2013 07/03/2013 07/03/2013
07/12/2013 07/16/2013 07/16/2013 07/23/2013

4 AFFIDAVIT OF SERVICE. Charles T. Hagel served on 6/24/2013, answer due 7/15/2013. Service was made by Mail. Document filed by American Civil Liberties Union Foundation; New York Civil Liberties Union Foundation; New York Civil Liberties Union; American Civil Liberties Union. (Jaffer, Jameel) (Entered: 06/25/2013)
5 AFFIDAVIT OF SERVICE. Eric H. Holder served on 6/24/2013, answer due 7/15/2013. Service was made by Mail. Document filed by American Civil Liberties Union Foundation; New York Civil Liberties Union Foundation; New York Civil Liberties Union; American Civil Liberties Union. (Jaffer, Jameel) (Entered: 06/25/2013)
6 AFFIDAVIT OF SERVICE. Keith B. Alexander served on 6/24/2013, answer due 7/15/2013. Service was made by Mail. Document filed by American Civil Liberties Union Foundation; New York Civil Liberties Union Foundation; New York Civil Liberties Union; American Civil Liberties Union. (Jaffer, Jameel) (Entered: 06/25/2013)
7 AFFIDAVIT OF SERVICE. Robert S. Mueller, III served on 6/24/2013, answer due 7/15/2013. Service was made by Mail. Document filed by American Civil Liberties Union Foundation; New York Civil Liberties Union Foundation; New York Civil Liberties Union; American Civil Liberties Union. (Jaffer, Jameel) (Entered: 06/25/2013)
8 AFFIDAVIT OF SERVICE of Complaint and Summons served on U.S. Attorney for the Southern District of New York on 06/24/2013. Service was made by Mail. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation. (Jaffer, Jameel) (Entered: 06/25/2013)
9 NOTICE OF APPEARANCE by Tara Marie La Morte on behalf of Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III. (La Morte, Tara) (Entered: 06/26/2013)
10 ORDER FOR INITIAL PRETRIAL CONFERENCE: Initial Conference set for 7/17/2013 at 02:00 PM in Courtroom 20B, 500 Pearl Street, New York, NY 10007 before Judge William H. Pauley III, and as further set forth in this document. (Signed by Judge William H. Pauley, III on 6/25/2013) Copies Sent By Chambers. (cd) (Entered: 06/27/2013)
11 SCHEDULING ORDER: This initial pretrial conference scheduled for July 17, 2013 is rescheduled to July 25, 2013 at 12:00 p.m. (Signed by Judge William H. Pauley, III on 7/3/2013) Copies Sent by Chambers. (mro) (Entered: 07/03/2013)
12 ENDORSED LETTER addressed to Judge William H. Pauley, III from Jameel Jaffer dated 7/2/13 re: Counsel writes to request a pre−motion conference to discuss a motion for a preliminary injunction. ENDORSEMENT: Application granted. The Court will hold a pre−motion conference in conjunction with the initial pre−trial conference, which has been rescheduled to July 25, 2013 at 12:00 p.m. ( Pre−Motion Conference set for 7/25/2013 at 12:00 PM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 7/3/2013) (mro) (Entered: 07/03/2013)
13 ENDORSED LETTER addressed to Judge William H. Pauley, III from David S. Jones dated 7/9/13 re: Counsel writes respectfully with the consent of plaintiffs' counsel to request a one−week extension of defendants' time to respond to plaintiffs' July 2 pre−motion conference letter. ENDORSEMENT: Application granted. (Signed by Judge William H. Pauley, III on 7/11/2013) (mro) (Entered: 07/12/2013)
14 NOTICE OF APPEARANCE by John Dalton Clopper on behalf of Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III. (Clopper, John) (Entered: 07/16/2013)
15 NOTICE OF APPEARANCE by David Stuart Jones on behalf of Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III. (Jones, David) (Entered: 07/16/2013)
16 ENDORSED LETTER addressed to Judge William H. Pauley, III from David S. Jones dated 7/18/13 re: Counsel writes in response to plaintiffs' July 2 letter requesting that

07/24/2013 07/24/2013 07/24/2013 07/25/2013
07/25/2013
07/26/2013
07/26/2013 07/26/2013 08/08/2013

the initial conference now scheduled for July 25 serve as a pre−motion conference in anticipation of a preliminary injunction motion. Defendants request that the same conference also serve as a pre−motion conference for a potential cross−motion to dismiss the complaint. For the reasons herein, counsel requests that defendants' initial briefing on these matters be due no earlier than September 16. ENDORSEMENT: Application granted in part. The July 25 conference will serve as a pre−motion conference for Defendants' anticipated motion to dismiss. The briefing schedule will be discussed at the conference. (Signed by Judge William H. Pauley, III on 7/22/2013) (mro) (Entered: 07/23/2013)
17 FILING ERROR − DEFICIENT DOCKET ENTRY − NOTICE OF APPEARANCE by Christopher Blake Harwood on behalf of Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III. (Harwood, Christopher) Modified on 7/24/2013 (db). (Entered: 07/24/2013)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Christopher Blake Harwood to RE−FILE Document 17 Notice of Appearance. ERROR(S): Document has not been fully secured, items can be changed/altered in real time. (db) (Entered: 07/24/2013)
18 NOTICE OF APPEARANCE by Christopher Blake Harwood on behalf of Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III. (Harwood, Christopher) (Entered: 07/24/2013)
19 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Laura K. Donohue to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−8723410. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation. (Attachments: # 1 Civil Cover Sheet Cover, # 2 Text of Proposed Order Order, # 3 Supplement Certificate of Good Standing)(Donohue, Laura) Modified on 7/25/2013 (bcu). (Entered: 07/25/2013)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice regarding Document No. 19 MOTION for Laura K. Donohue to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−8723410. Motion and supporting papers to be reviewed by Clerk's Office staff.. The filing is deficient for the following reason(s): Missing Certificate of Good Standing. Certificate of Good Standing must be issued from the State Court of Virginia not from a State Bar Association. Re−file the document as a Corrected Motion to Appear Pro Hac Vice and attach a valid Certificate of Good Standing, issued within the past 30 days. (bcu) (Entered: 07/25/2013)
20 SCHEDULING ORDER: Counsel for the parties having appeared for a conference on July 25, 2013, the following schedule is established: 1. Plaintiffs will file a motion for a preliminary injunction and Defendants will file a motion to dismiss by August 26, 2013; 2. Opposition briefs are due September 26, 2013; 3. Third parties may file motions for leave to file amici briefs by October 3, 2013 with their proposed briefs attached; 4. Reply briefs are due October 10, 2013; 5. The Court will hear oral argument on November 1, 2013 at 12:00 p.m; 6. Moving and opposition briefs may be 40 pages in length, reply briefs may be 20 pages. (Signed by Judge William H. Pauley, III on 7/25/2013) Copies Sent by Chambers. (mro) (Entered: 07/26/2013)
Set/Reset Hearings: Oral Argument set for 11/1/2013 at 12:00 PM before Judge William H. Pauley III. (mro) (Entered: 07/26/2013)
21 LETTER addressed to Judge William H. Pauley from David S. Jones dated 7/18/2013 re: Pursuant to the court's order dated June 27, 2013, I write respectfully on behalf of both parties concerning matters covered by Rule 26(f) of the parties' discovery plan. (ama) (Entered: 07/29/2013)
22 CORRECTED SCHEDULING ORDER: By letter dated August 2, 2013, the ACLU brought to the Court's attention an error in this Court's July 26, 2013 Scheduling Order. The Court therefore adopts the following corrected schedule: 1. Plaintiffs will file a motion for a preliminary injunction and Defendants will file a motion to dismiss by August 26, 2013; 2. Third parties may file motions for leave to file amici briefs by

08/23/2013
08/23/2013 08/26/2013 08/26/2013 08/26/2013 08/26/2013 08/26/2013 08/26/2013 08/26/2013 08/26/2013 08/26/2013

September 4, 2013 with their proposed briefs attached; 3. Opposition briefs are due September 26, 2013; 4. Reply briefs are due October 10, 2013; 5. The Court will hear oral argument on November 1, 2013 at 12:00 p.m; 6. Moving and opposition briefs may be 40 pages in length, reply briefs may be 20 pages. (Motions due by 9/4/2013. Responses due by 9/26/2013 Replies due by 10/10/2013. Oral Argument set for 11/1/2013 at 12:00 PM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 8/8/2013) Copies Sent By Chambers. (mro) (Entered: 08/08/2013)
23 SECOND MOTION for Laura Kathleen Donohue to Appear Pro Hac Vice. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Former Church Committee Members and Law Professors. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Certificate of Good Standing with the Virginia Bar, # 3 Certificate of Good Standing Virginia Supreme Court)(Donohue, Laura) (Entered: 08/23/2013)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 23 SECOND MOTION for Laura Kathleen Donohue to Appear Pro Hac Vice. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 08/23/2013)
24 MOTION for David Allen Greene to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−8816230. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Electronic Frontier Foundation. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Good Standing)(Greene, David) (Entered: 08/26/2013)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 24 MOTION for David Allen Greene to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−8816230. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/26/2013)
25 MOTION for Preliminary Injunction. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation. Return Date set for 11/1/2013 at 12:00 PM.(Abdo, Alexander) (Entered: 08/26/2013)
26 MEMORANDUM OF LAW in Support re: 25 MOTION for Preliminary Injunction.. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation. (Abdo, Alexander) (Entered: 08/26/2013)
27 DECLARATION of Prof. Edward Felten in Support re: 25 MOTION for Preliminary Injunction.. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation. (Abdo, Alexander) (Entered: 08/26/2013)
28 DECLARATION of Michael German in Support re: 25 MOTION for Preliminary Injunction.. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation. (Abdo, Alexander) (Entered: 08/26/2013)
29 DECLARATION of Steven Shapiro in Support re: 25 MOTION for Preliminary Injunction.. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation. (Abdo, Alexander) (Entered: 08/26/2013)
30 DECLARATION of Christopher Dunn in Support re: 25 MOTION for Preliminary Injunction.. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation. (Abdo, Alexander) (Entered: 08/26/2013)
31 DECLARATION of Patrick Toomey in Support re: 25 MOTION for Preliminary Injunction.. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation. (Abdo, Alexander) (Entered: 08/26/2013)

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32 MOTION to Dismiss. Document filed by Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III. Responses due by 9/26/2013(Jones, David) (Entered: 08/26/2013)
33 MEMORANDUM OF LAW in Support re: 32 MOTION to Dismiss.. Document filed by Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13)(Jones, David) (Entered: 08/26/2013)
34 MOTION for John Frazer to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−8817400. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by National Rifle Association of America, Inc.. (Attachments: # 1 Text of Proposed Order Proposed order for admission, # 2 Exhibit Certificate of good standing)(Frazer, John) (Entered: 08/27/2013)
35 ORDER FOR ADMISSION PRO HAC VICE granting 23 Motion for Laura K. Donohue to Appear Pro Hac Vice. (Signed by Judge William H. Pauley, III on 8/27/2013) (tro) (Entered: 08/27/2013)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 34 MOTION for John Frazer to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−8817400. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/27/2013)
36 ORDER FOR ADMISSION PRO HAC VICE granting 24 Motion for David A. Greene to Appear Pro Hac Vice. It is hereby Ordered that David A. Greene is admitted pro hac vice to appear for all purposes as counsel for amicus curiae Electronic Frontier Foundation. (Signed by Judge William H. Pauley, III on 8/28/2013) (mro) (Entered: 08/28/2013)
37 ORDER FOR ADMISSION PRO HAC VICE granting 34 Motion for John Frazer to Appear Pro Hac Vice. IT IS HEREBY ORDERED that John Frazer is admitted pro hac vice to appear for all purposes as counsel for amicus curiae National Rifle Association of America, Inc. (Signed by Judge William H. Pauley, III on 8/26/2013) (mro) (Entered: 08/28/2013)
38 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for David B. Owens to Appear Pro Hac Vice for amicus curiae Michael P. Lynch. Filing fee $ 200.00, receipt number 0208−8827772. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Michael P. Lynch. (Attachments: # 1 Text of Proposed Order Proposed Order For Pro Hac Vice Admission, # 2 Exhibit Certificate of Good Standing (California), # 3 Exhibit Certificate of Good Standing (Illinois))(Owens, David) Modified on 8/29/2013 (bcu). (Entered: 08/29/2013)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice regarding Document No. 38 MOTION for David B. Owens to Appear Pro Hac Vice for amicus curiae Michael P. Lynch. Filing fee $ 200.00, receipt number 0208−8827772. Motion and supporting papers to be reviewed by Clerk's Office staff.. The filing is deficient for the following reason(s): Missing Certificate of Good Standing. Certificate of Good Standing must be issued from the Supreme Court of California not from a State Bar Association. Re−file the document as a Corrected Motion to Appear Pro Hac Vice and attach a valid Certificate of Good Standing, issued within the past 30 days. (bcu) (Entered: 08/29/2013)
39 FIRST MOTION for Leave to File Motion for Leave to File Amicus Brief. Document filed by Former Church Committee Members and Law Professors. Return Date set for 8/30/2013 at 12:26 PM. (Attachments: # 1 Supplement Certificate of Service, # 2 Exhibit Amicus Brief)(Donohue, Laura) (Entered: 08/30/2013)
40 AMENDED MOTION for David B. Owens to Appear Pro Hac Vice on behalf of Michael P. Lynch (amicus curiae). Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Michael P. Lynch. (Attachments: # 1 Exhibit Certificate of Good Standing (California), # 2 Exhibit Certificate of Good Standing (Illinois), # 3 Text of Proposed Order)(Owens, David) (Entered: 09/03/2013)

09/03/2013
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09/05/2013

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 40 AMENDED MOTION for David B. Owens to Appear Pro Hac Vice on behalf of Michael P. Lynch (amicus curiae). Motion and supporting papers to be reviewed by Clerk's Office staff.AMENDED MOTION for David B. Owens to Appear Pro Hac Vice on behalf of Michael P. Lynch (amicus curiae). Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 09/03/2013)
41 ORDER FOR ADMISSION PRO HAC VICE granting 40 Motion for David B. Owens to Appear Pro Hac Vice. (Signed by Judge William H. Pauley, III on 9/4/2013) (lmb) (Entered: 09/04/2013)
42 MOTION for Leave to File Amicus Brief. Document filed by Reporters Committee for Freedom of the Press. (Attachments: # 1 Proposed brief, # 2 Appendix Apprendix A, # 3 Appendix Appendix B)(Steger, Michael) (Entered: 09/04/2013)
43 MOTION for David Allen Greene to Appear Pro Hac Vice (Corrected). Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by F. James Sensenbrenner. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Good Standing)(Greene, David) (Entered: 09/04/2013)
44 MOTION for Leave to File Amicus brief. Document filed by National Rifle Association of America, Inc.. (Attachments: # 1 Exhibit Amicus brief)(Frazer, John) (Entered: 09/04/2013)
45 MOTION for Leave to File Amicus Brief by Professor of Philosophy, Michael P. Lynch. Document filed by Michael P. Lynch. (Attachments: # 1 Proposed Brief)(Owens, David) (Entered: 09/04/2013)
46 MOTION for Leave to File Amicus Curiae Brief in Support of Plaintiffs. Document filed by F. James Sensenbrenner. (Attachments: # 1 Exhibit A (Amicus Brief), # 2 Text of Proposed Order)(Greene, David) (Entered: 09/04/2013)
47 MOTION for Leave to File Motion of Non−Party PEN American Center for Leave to File Brief as Amicus Curiae in support of Plaintiffs. Document filed by Pen American Center. (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Exhibit Certificate of Service)(Davis, Edward) (Entered: 09/04/2013)
48 NOTICE OF APPEARANCE by Edward J. Davis on behalf of Pen American Center. (Davis, Edward) (Entered: 09/04/2013)
49 NOTICE OF APPEARANCE by Linda Jane Steinman on behalf of Pen American Center. (Steinman, Linda) (Entered: 09/04/2013)
50 NOTICE OF APPEARANCE by Eric Joel Feder on behalf of Pen American Center. (Feder, Eric) (Entered: 09/04/2013)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 43 MOTION for David Allen Greene to Appear Pro Hac Vice (Corrected). Motion and supporting papers to be reviewed by Clerk's Office staff. MOTION for David Allen Greene to Appear Pro Hac Vice (Corrected). Motion and supporting papers to be reviewed by Clerk's Office staff. The document has been reviewed and there are no deficiencies. (bwa) (Entered: 09/05/2013)
51 ORDER granting 39 Motion for Leave to File Document; granting 42 Motion for Leave to File Document; granting 44 Motion for Leave to File Document; granting 45 Motion for Leave to File Document; granting 46 Motion for Leave to File Document; granting 47 Motion for Leave to File Document. The motions of amicus curiae Former Members of the Church Committee and Law Professors; The Reporters Committee for Freedom of the Press, et. al.; the National Rifle Association of America, Inc.; Michael P. Lynch; Representative F. James Sensenbrenner, Jr.; and the PEN American Center are granted. Amicus curiae may file their proposed briefs. The Clerk of Court is directed to terminate the motions pending at Docket Nos. 39, 42, 44, 45, 46, and 47. (Signed by Judge William H. Pauley, III on 9/5/2013) (mro) (Entered: 09/05/2013)
52 ORDER FOR ADMISSION PRO HAC VICE granting 43 Motion for David A. Greene to Appear Pro Hac Vice. It is hereby Ordered that David A. Greene is admitted pro hac vice to appear for all purposes as counsel for amicus curiae Congressman Jim

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Sensenbrenner. (Signed by Judge William H. Pauley, III on 9/5/2013) (mro) (Entered: 09/05/2013)
53 BRIEF OF AMICUS CURIAE PEN AMERICAN CENTER IN SUPPORT OF PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION AND IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS. Document filed by Pen American Center.(Davis, Edward) (Entered: 09/05/2013)
54 BRIEF OF AMICUS CURIAE. Document filed by National Rifle Association of America, Inc..(Frazer, John) (Entered: 09/05/2013)
55 BRIEF of Amicus Curiae Professor Michael P. Lynch. Document filed by Michael P. Lynch.(Owens, David) (Entered: 09/05/2013)
56 BRIEF Amicus Curiae in Suppport of Plaintiffs. Document filed by F. James Sensenbrenner.(Greene, David) (Entered: 09/06/2013)
57 LETTER MOTION for Extension of Time to File Response/Reply as to 32 MOTION to Dismiss., 25 MOTION for Preliminary Injunction. addressed to Judge William H. Pauley, III from David S. Jones dated September 26, 2013. Document filed by Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III. (Attachments: # 1 Text of Proposed Order Proposed revised scheduling order)(Jones, David) (Entered: 09/26/2013)
58 REVISED SCHEDULING ORDER: It is hereby ORDERED that (a) plaintiffs' opposition to defendants' motion to dismiss and defendants' opposition to plaintiffs' motion for a preliminary injunction shall be due on or before October 1, 2013, and (b) plaintiffs' and defendants' reply papers in further support of their respective motions shall be due on or before October 15, 2013. Set Deadlines/Hearing as to 25 MOTION for Preliminary Injunction., 32 MOTION to Dismiss :( Responses due by 10/1/2013, Replies due by 10/15/2013.) (Signed by Judge William H. Pauley, III on 9/27/2013) (mro) (Entered: 09/27/2013)
59 STANDING ORDER M10−468: Stay of Certain Civil Cases Pending the Restoration of Department of Justice Funding. (Signed by Judge Loretta A. Preska on 10/1/2013) ***Original Standing Order docketed in case no. 1:13−mc−00334−LAP, document no. 2 on 10/1/2013.***(tro) (Entered: 10/01/2013)
60 MEMORANDUM OF LAW in Opposition re: 32 MOTION to Dismiss.. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation. (Jaffer, Jameel) (Entered: 10/01/2013)
61 MEMORANDUM OF LAW in Opposition re: 25 MOTION for Preliminary Injunction.. Document filed by Keith B. Alexander. (Attachments: # 1 Exhibit)(Jones, David) (Entered: 10/01/2013)
62 DECLARATION of Robert J. Holley in Opposition re: 25 MOTION for Preliminary Injunction.. Document filed by Keith B. Alexander. (Jones, David) (Entered: 10/01/2013)
63 DECLARATION of Teresa H. Shea in Opposition re: 25 MOTION for Preliminary Injunction.. Document filed by Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III. (Jones, David) (Entered: 10/01/2013)
64 LETTER MOTION for Extension of Time & to Lift Stay addressed to Judge William H. Pauley, III from Jameel Jaffer dated 10/10/13. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation. (Attachments: # 1 Text of Proposed Order)(Jaffer, Jameel) (Entered: 10/10/2013)
65 LETTER RESPONSE in Opposition to Motion addressed to Judge William H. Pauley, III from David S. Jones dated 10/11/2013 re: 64 LETTER MOTION for Extension of Time & to Lift Stay addressed to Judge William H. Pauley, III from Jameel Jaffer dated 10/10/13.. Document filed by Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III. (Jones, David) (Entered: 10/11/2013)

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66 LETTER RESPONSE to Motion addressed to Judge William H. Pauley, III from David S. Jones dated 10/11/2013 re: 64 LETTER MOTION for Extension of Time & to Lift Stay addressed to Judge William H. Pauley, III from Jameel Jaffer dated 10/10/13. Corrected version of dkt no 65, correcting nonsubstantive typographical error. Document filed by Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III. (Jones, David) (Entered: 10/11/2013)
67 ORDER granting 64 Letter Motion for Extension of Time. Accordingly, the stay is lifted and the Court adopts the following schedule: 1. The parties will file reply briefs on their pending motions on October 25, 2013; 2. This Court will hear oral argument on November 22, 2013 at 10:30 a.m. (Signed by Judge William H. Pauley, III on 10/15/2013) (mro) (Entered: 10/15/2013)
Set/Reset Deadlines: ( Replies due by 10/25/2013.), Set/Reset Hearings:( Oral Argument set for 11/22/2013 at 10:30 AM before Judge William H. Pauley III.) (mro) (Entered: 10/15/2013)
68 REPLY MEMORANDUM OF LAW in Support re: 25 MOTION for Preliminary Injunction.. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation. (Attachments: # 1 Affidavit)(Jaffer, Jameel) (Entered: 10/25/2013)
69 REPLY MEMORANDUM OF LAW in Support re: 32 MOTION to Dismiss.. Document filed by Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III. (Attachments: # 1 Exhibit, # 2 Exhibit)(Jones, David) (Entered: 10/25/2013)
70 LETTER addressed to Judge William H. Pauley, III from Jameel Jaffer dated 10/28/2013 re: Pls.' Reply, Pursuant to Rule III(F). Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation.(Jaffer, Jameel) (Entered: 10/28/2013)
71 LETTER addressed to Judge William H. Pauley, III from David S. Jones dated 10/29/2013 re: listing documents filed in connection with defendants' motion to dismiss. Document filed by Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III.(Jones, David) (Entered: 10/29/2013)
72 RESPONSE in Support of Motion re: 32 MOTION to Dismiss., 25 MOTION for Preliminary Injunction. Letter to Court (i) notifying parties of appearance by Assistant Attorney General Stuart F. Delery, and (ii) identifying recently published decisions relevant to pending motions. Document filed by Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III. (Attachments: # 1 Exhibit Ex. B − S.D. Cal. decision)(Jones, David) (Entered: 11/21/2013)
73 TRANSCRIPT of Proceedings re: ARGUMENT held on 11/22/2013 before Judge William H. Pauley, III. Court Reporter/Transcriber: Eve Giniger, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/30/2013. Redacted Transcript Deadline set for 1/9/2014. Release of Transcript Restriction set for 3/10/2014.(Rodriguez, Somari) (Entered: 12/05/2013)
74 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a ARGUMENT proceeding held on 11/22/13 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 12/05/2013)
75 LETTER addressed to Judge William H. Pauley, III from Jameel Jaffer dated 12/16/2013 re: Notice of Supplemental Authority. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation. (Attachments: # 1 Exhibit Klayman v. Obama (D.D.C. Dec. 16, 2013))(Jaffer, Jameel) (Entered: 12/16/2013)

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76 MEMORANDUM & ORDER denying 25 Motion for Preliminary Injunction; granting 32 Motion to Dismiss. For all of the reasons herein, the NSA's bulk telephony metadata collection program is lawful. Accordingly, the Government's motion to dismiss the complaint is granted and the ACLU's motion for a preliminary injunction is denied. The Clerk of Court is directed to terminate the motions pending at ECF Nos. 25 and 32 and to mark this case closed. (Signed by Judge William H. Pauley, III on 12/27/2013) (mro) (Main Document 76 replaced on 1/7/2014) (lmb). (Entered: 12/27/2013)
Transmission to Judgments and Orders Clerk. Transmitted re: 76 Order on Motion for Preliminary Injunction, Order on Motion to Dismiss,,,,, to the Judgments and Orders Clerk. (mro) (Entered: 12/27/2013)
77 CLERK'S JUDGMENT That for the reasons stated in the Court's Memorandum and Order dated December 27, 2013, the Court finds the NSA's bulk telephony metadata collection program is lawful; accordingly, the Governments motion to dismiss the complaint is granted and the ACLU's motion for a preliminary injunction is denied and the case is closed. (Signed by Clerk of Court Ruby Krajick on 12/27/13) (Attachments: # 1 Notice of Right to Appeal)(ml) (Entered: 12/27/2013)
80 INTERNET CITATION NOTE: Material from decision with Internet citation re: 76 Order on Motion for Preliminary Injunction, Order on Motion to Dismiss. (fk) (Entered: 06/10/2014)
81 INTERNET CITATION NOTE: Material from decision with Internet citation re: 76 Order on Motion for Preliminary Injunction, Order on Motion to Dismiss. (fk) (Entered: 06/10/2014)
78 NOTICE OF APPEAL from 76 Order on Motion for Preliminary Injunction, Order on Motion to Dismiss,,,, 77 Clerk's Judgment,. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation. Filing fee $ 505.00, receipt number 0208−9221894. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Jaffer, Jameel) (Entered: 01/02/2014)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 78 Notice of Appeal. (tp) (Entered: 01/06/2014)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files (ONLY) for 78 Notice of Appeal, filed by New York Civil Liberties Union Foundation, New York Civil Liberties Union, American Civil Liberties Union, American Civil Liberties Union Foundation were transmitted to the U.S. Court of Appeals. (tp) (Entered: 01/06/2014)
79 NOTICE of FISC order relating to document preservation, and government's intention to comply with FISC orders requiring destruction of certain records. Document filed by Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III. (Attachments: # 1 Exhibit Government motion to FISC regarding preservation, # 2 Exhibit FISC 03 07 2014 order re preservation motion)(Jones, David) (Entered: 03/08/2014)
82 OPINION of USCA as to 78 Notice of Appeal, filed by New York Civil Liberties Union Foundation, New York Civil Liberties Union, American Civil Liberties Union, American Civil Liberties Union Foundation. USCA Case Number 14−0042−cv. Plaintiffs−appellants American Civil Liberties Union and American Civil Liberties Union Foundation, and New York Civil Liberties Union and New York Civil Liberties Union Foundation, appeal from a decision of the United States District Court for the Southern District of New York (William H. Pauley, III, Judge) granting defendants−appellees' motion to dismiss and denying plaintiffs−appellants' request for a preliminary injunction. The district court held that 215 of the PATRIOT Act impliedly precludes judicial review; that plaintiffs−appellants' statutory claims regarding the scope of 215 would in any event fail on the merits; and that 215 does not violate the Fourth or First Amendments to the United States Constitution. We disagree in part, and hold that 215 and the statutory scheme to which it relates do not preclude judicial review, and that the bulk telephone metadata program is not authorized by 215. We therefore VACATE the judgment of the district court and REMAND for further proceedings consistent with this opinion. Catherine O'Hagan Wolfe, Clerk

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USCA for the Second Circuit. Certified: 05/07/2015. (nd) (Entered: 05/07/2015)
83 NOTICE OF CHANGE OF ADDRESS by John Frazer on behalf of National Rifle Association of America, Inc.. New Address: National Rifle Association of America, 11250 Waples Mill Road, Fairfax, VA, USA 22030, 703−267−1250. (Frazer, John) (Entered: 05/08/2015)
84 OPINION of USCA as to 78 Notice of Appeal, filed by New York Civil Liberties Union Foundation, New York Civil Liberties Union, American Civil Liberties Union, American Civil Liberties Union Foundation. USCA Case Number 14−042−cv. Plaintiffs−appellants American Civil Liberties Union and American Civil Liberties Union Foundation, and New York Civil Liberties Union and New York Civil Liberties Union Foundation, move for a preliminary injunction, requesting various relief. We conclude that Congress intended to authorize the continuation of the bulk telephone metadata collection program for a limited period of 180 days, and decline to reach the constitutional issues for prudential reasons. We therefore DENY the motion for a preliminary injunction and REMAND for further proceedings in the district court consistent with this opinion and our prior opinion in this case. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 10/29/2015. (nd) (Entered: 10/29/2015)
85 MANDATE of USCA (Certified Copy) as to 78 Notice of Appeal, filed by New York Civil Liberties Union Foundation, New York Civil Liberties Union, American Civil Liberties.Union, American Civil Liberties Union Foundation. USCA Case Number 14−42. IT IS HEREBY ORDERED, ADJUDGED and DECREED that the judgment of the district court dismissing the complaint is VACATED and the case is REMANDED for further proceedings in accordance with the opinion of this court.Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 12/04/2015. (nd) (Entered: 12/04/2015)
Transmission of USCA Mandate to the District Judge re: 85 USCA Mandate,,. (nd) (Entered: 12/04/2015)
86 ORDER: In accord with the mandate of the United States Court of Appeals for the Second Circuit (ECF No. 85.), this case has been reopened. Counsel are directed to file a joint status report by January 8, 2016. (Signed by Judge William H. Pauley, III on 12/11/2015) (kko) (Entered: 12/11/2015)
87 JOINT LETTER addressed to Judge William H. Pauley, III from Plaintiffs and Defendants dated 1/7/2016 re: Joint Status Report. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation.(Abdo, Alexander) (Entered: 01/07/2016)
88 MEMO ENDORSEMENT on re: 87 Letter, filed by New York Civil Liberties Union Foundation, New York Civil Liberties Union, American Civil Liberties Union, American Civil Liberties Union Foundation. ENDORSEMENT: Application granted. (Signed by Judge William H. Pauley, III on 1/19/2016) (mro) (Entered: 01/19/2016)
89 JOINT LETTER addressed to Judge William H. Pauley, III from Plaintiffs and Defendants dated 5/4/2016 re: Joint Status Report. Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation.(Abdo, Alexander) (Entered: 05/04/2016)
90 MEMO ENDORSEMENT on re: 89 Letter, filed by New York Civil Liberties Union Foundation, New York Civil Liberties Union, American Civil Liberties Union, American Civil Liberties Union Foundation. ENDORSEMENT: Application granted. (Signed by Judge William H. Pauley, III on 5/6/2016) (mro) (Entered: 05/09/2016)
91 MOTION for Jameel Jaffer to Withdraw as Attorney . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation.(Jaffer, Jameel) (Entered: 08/31/2016)
92 MEMO ENDORSEMENT granting MOTION OF JAMEEL JAFFER TO WITHDRAW AS COUSNEL 91 Motion to Withdraw as Attorney. ENDORSEMENT:

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Application granted. Attorney Jameel Jaffer terminated (Signed by Judge William H. Pauley, III on 9/2/2016) (cf) (Entered: 09/02/2016)
93 MOTION for Alex Abdo to Withdraw as Attorney . Document filed by American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation.(Abdo, Alexander) (Entered: 01/03/2017)
94 MEMO ENDORSEMENT granting 93 Motion to Withdraw as Attorney. ENDORSEMENT: Application granted. The Clerk of Court is directed to terminate Alex Abdo from the docket. Attorney Alexander Abraham Abdo terminated. (Signed by Judge William H. Pauley, III on 8/1/2017) (mro) (Entered: 08/02/2017)
95 LETTER addressed to Judge William H. Pauley, III from David S. Jones dated May 14, 2018 re: reporting agreement to stipulated voluntary dismissal and request for Court approval after judgments and orders clerk's review. Document filed by Keith B. Alexander, James R. Clapper, Charles T. Hagel, Eric H. Holder, Robert S. Mueller, III. (Attachments: # 1 Exhibit Signed stipulation of voluntary dismissal pending Clerk's review for form and transmittal to chambers)(Jones, David) (Entered: 05/14/2018)
96 STIPULATION OF VOLUNTARY DISMISSAL: IT IS HEREBY STIPULATED AND AGREED by and between the parties, pursuant to Federal Rule of Civil Procedure 41(a), as follows: That this action is DISMISSED, in its entirety, and as further set forth in this order; and That this Stipulation of Voluntary Dismissal is without prejudice to Plaintiffs seeking attorneys' fees and costs pursuant to 28 U.S.C. section 2412, or to Defendants opposing any request by Plaintiffs for an award of such fees and costs. (Signed by Judge William H. Pauley, III on 5/14/2018) (jwh) Modified on 5/17/2018 (jwh). (Entered: 05/14/2018)
Terminate Transcript Deadlines (jwh) (Entered: 05/14/2018)